COURT: The defendant pleaded guilty to the offence of manslaughter on the 27 May 2024 before a magistrate. It is alleged that on the 28th day of June 2022, he unlawfully killed Mr Fung Chi-Keung, thereafter called “the deceased”. According to the Summary of Facts to which he agreed at the time of the plea and confirmed today, the incident arose out of a trivial dispute amongst a group of elderly friends in Tin Shui Wai area. At the material time, the defendant was 61 years old, and the deceased, Mr Fung, was 63 years old. Mr Fung was also known as “Four Eyes Boy” among the group.
On 25 June 2022, the group of elderly friends gathered for a dinner in Tin Shui Wai to celebrate the birthday of a lady called Madam Kwok. During the dinner, the group had been drinking and there was an argument between a couple, Mr Cheng and Madam Tsang. Soon, the defendant and the deceased joined in the argument by taking sides.
The group left the restaurant at about 9 pm but the argument between Mr Cheng, the defendant, and the deceased continued. The deceased was seen pushing Mr Cheng from behind, causing the latter to fall onto the ground. At that time, the defendant and the deceased continued with their argument in the vicinity.
Suddenly, the defendant, who was standing face to face to the deceased, launched a punch at the face of the deceased with his left hand. Following that punch, the defendant used his right hand to hit the deceased again. As a result of that strike, the deceased immediately fell on his back and landed on the ground, with the back of his head hitting the ground. The assault lasted only a few seconds.
In due course, the remaining members of the group also left the scene. A passer-by reported the incident to the police. The assault was in part recorded by a passer-by using his mobile phone, and I have, before hearing mitigation, watched the video footage concerned. It captured the physical altercation between the defendant and the deceased and the two strikes of the defendant.
At about 9.16 pm that night, police arrived at the scene and found the deceased lying supine on the ground. He was bleeding profusely in the head and left ear. He was unconscious and totally unresponsive. He was rushed to the Tuen Mun Hospital for medical treatment and was admitted in the intensive care unit. Eventually, he was certified dead at 3.34 pm on 28 June 2022.
Autopsy was performed by the forensic pathologist Dr Kwok Ka-ki. In the expert opinion of Dr Kwok, the head injuries of the deceased were compatible with blunt force trauma which could have been caused by bumping against a hard surface or impact with blunt objects. Judging from the pattern of the injuries, they were likely to have been inflicted when the moving head bumped against a hard unyielding surface, such as during a fall with the back of the head impacted against the ground. Dr Kwok concluded that the direct cause of the deceased’s death was head injuries with bronchopneumonia.
The defendant was arrested for wounding on 27 June 2022 and he stated under caution, “I saw red that instant and hit Four Eyes Boy. I did not know the outcome would be so serious”.
In the subsequent video recorded interviews, he said that he had known the deceased for about one month and met the deceased on several occasions. There was no grudge or monetary dispute between them. On 25 June 2022, the group of them had dinner to celebrate the birthday of a lady and they had been drinking since the afternoon. During the dinner, there were arguments between the deceased and some other people.
The defendant said he tried to mediate the dispute. Afterwards, they left the restaurant and the argument continued. The deceased pushed Silly Fook, that is, Mr Cheng, causing Silly Fook to fall on the ground. The deceased then challenged the defendant whether he would like to “take them under his wing”. The defendant replied in the affirmative. The deceased swore at him in foul language. Out of anger, the defendant punched the deceased once with his left hand and the deceased fell down. He started bleeding some 2 to 3 minutes later. Being in panic, he left the scene with his girlfriend and returned to his residence.
He also said that the deceased was his friend. In the course of the argument, he tried to mediate the dispute but the deceased kept pointing at and scolding him. He therefore could not help but hit the deceased.
In the fifth video-recorded interview, he was informed of the death of the deceased. The defendant stated that he was saddened by the death, but stressed that it was unintended and he expressed regret.
The defendant now accepts and admits that he had, on 28 June 2022, in Hong Kong, killed the deceased by his unlawful and dangerous act.
The defendant is now 64 years of age. He was 61 years old at the time of the offence. He has attained Form 2 education in mainland China and he has worked as a cleaner.
In respect of previous criminal record, he has a total of five convictions. In May 1982, he was convicted of the offence of possession of offensive weapon in a public place and possession of imitation firearms. He was 21 years old at the time and he was sentenced to the detention centre. In 1985, when he was 25 years old, he was convicted of manslaughter and robbery, and sentenced to a total of 10 years’ imprisonment. In August 1990, at the age of 29 years old, he was convicted of the offence of assault occasioning actual bodily harm. I was informed by counsel that this related to an incident with a prison inmate. He was discharged from prison in 1994, and since then, for over 30 years, he has stayed out of trouble. The defendant is divorced. He has two daughters and one son.
In mitigation, counsel Mr Richard Donald urged me to take into account the fact that the defendant had pleaded guilty at the earliest opportunity, that he had full and complete cooperation with the police and he was extremely remorseful. Counsel said he had no intention to cause any serious injury to the deceased, and he was desperate to reconnect with his 85-year-old elderly mother before it was too late.
In respect of his criminal record which includes a conviction for the offence of manslaughter, counsel rightly conceded that it was a factor that this court would need to address. But counsel pointed out that he had no offending for 30 years. Counsel urged this court to take into account that this was clearly a one-punch case, and he submitted that the appropriate sentence would be once between 18 months’ and 3 years’ imprisonment.
There is no tariff for the offence of manslaughter, because this is a category of offence that can vary greatly in gravity and can be affected by many different considerations and factual scenarios. In sentencing, I should take into account the overall view of the matters both of aggravation and mitigation to reach an appropriate sentence.
This is a so-called one-punch manslaughter which led to the tragic death of an elderly man. As the Court of Appeal stated in the case of the R v Lo Bing Sun, CACC 660/1993, “Hong Kong is a very crowded and tense environment and the unlawful and dangerous act constituted by a blow … must be deterred.” and one must be conscious of the fact that a human being has lost his life.
In this particular case, I take into account the aggravating feature that more than one blow had been delivered. According to the Summary of Facts to which the defendant has admitted, at paragraph 7 it is stated that the defendant suddenly launched a punch at the face of the deceased with his left hand. Following that punch, he used his right hand to hit the deceased again. So a total of two punches or two blows were delivered by him.
And the second thing that I take into account as an aggravating feature is that after the deceased had fallen onto the ground, apparently unconscious and his head bleeding, the defendant, instead of attempting to seek medical assistance or to summon for help, actually soon left the scene together with his girlfriend.
Counsel in mitigation submitted that he may not be aware of the bleeding or the condition of the deceased. However, according to the video-recorded interview, indeed, if I may quote from the Summary of Facts, at paragraph 25, he stated in the video-recorded interview that:
“Out of anger, (he) punched the deceased once with his left hand and the deceased fell down. The deceased started bleeding some 2 to 3 minutes later. Panicked, he left the scene with his girlfriend … and returned to his residence.”
So he was aware that the deceased was bleeding on his head at the time and he chose to leave the scene instead of summoning for any assistance or staying there to keep him company to see if he can help.
In respect of his previous criminal conviction, no doubt I take into account the fact that he was convicted of manslaughter. But at the same time I see from his criminal record that the manslaughter was committed apparently together with a robbery offence when he was convicted at the age of 25 years old. Since after his last conviction for assault occasioning actual bodily harm, he remained out of trouble in over 30 years.
Bearing in mind the length of the period that he kept out of trouble, I will not treat his previous conviction for the offence of manslaughter, or indeed for any violent offence such as assault occasioning actual bodily harm, as aggravating feature. I will not increase his sentence for that matter.
So the two main aggravating features are first of all, the involvement of more than one blow to the deceased, and secondly, the fact that he did not attempt to call for any medical assistance to help the deceased despite he saw that the deceased was lying unconscious on the ground with his head bleeding. On the other hand, I take into account the fact that he pleaded guilty at a very early opportunity, and that he is remorseful.
Bearing in mind all the circumstances and that the facts of this case including there was no grudges between the parties and they were slightly more than acquaintances, I consider that the appropriate sentence for the defendant would be one of 4 years’ imprisonment, and this is the sentence that I impose, 4 years.