HKSAR v. KWOK LIN CHOI

HCCC 237/2021

[2022] HKCFI 1951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 237 OF 2021

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant was charged with the murder of her 16-year-old daughter. She pleaded guilty to manslaughter on the ground of diminished responsibility.

On 10 October 2019, police arrived at Tin Hang Estate, Tin Shui Wai, after a report had been made that the defendant sat on the edge of the windows of her apartment. Police officers broke open the entrance and found the daughter was lying on the bed covered with blanket. The daughter was confirmed to be dead by ambulanceman (the deceased).

Post-mortem examination revealed the direct cause of the daughter’s death to be pressure on neck, with adverse effect of Trazodone and Zolpidem. Trazodone was detected in the blood at toxic level, whereas the level of Zolpidem was found to be at fatal level. The two, according to the government chemist, could produce a synergistic effect which cause respiratory depression and coma. A conjunctival petechiae was also found on the eyes. This, together with bruises on the neck of the deceased, suggested that the neck being compressed by blunt object. In other words, the deceased was strangled to meet her demise.

The defendant had been known to the mental health service since 2004. She had depression on top of dysphoric personality. She also had history of repeated suicidal act. She was treated with antidepressant and sleeping bill on a need-to basis.

The defendant was last seen by psychiatrist on 28 August 2019. The offence took place on 10 October 2019, so slightly more than a month.

At the time, the defendant expressed her worry about the love affair of her daughter and the social unrest in Hong Kong. She, however, appeared to be normal with no psychotic symptoms or suicidal idea. She was prescribed with Trazodone an antidepressant and Zolpidem, hypnotic tablet.

Subsequent to her arrest, she was examined by two psychiatrists. Dr Wong Yee-him was of the opinion that the defendant at the time of the killing suffered from major depressive disorder. Dr Bonnie Siu was of the opinion that the defendant suffered from severe depression with psychotic symptoms.

At the request of Mr Beel in the last hearing, a probation/background report was called for. The report detailed the upbringing, the family background and the medical history of the defendant. In short, probation supervision is not recommended.

In mitigation, Mr Beel essentially submitted that given the fact that:

(1) the defendant had been detained for slightly more than two and a half years,

(2) her much improved and stable mental state with no inpatient treatment required; and

(3) the defendant would not pose any danger to the public, an imprisonment term which allow her immediate release should be adopted.

In sentencing the defendant in a case of this nature, the court is mainly concerned with two determining factors:

(1) the degree of the defendant’s responsibility; and

(2) the danger that she might pose to the public or other people.

In the present case, the deceased was looked after by the defendant solely. The killing was not done in a spur of moment. The defendant dissolved only her medications, ie, Trazodone and Zolpidem tablets, into a mixture of hot water and wine. From the video-recorded interview, it seems that the defendant was fully aware of the side-effect or the effect of her own medications. She then asked the deceased to drink the mixture as the deceased was suffering a cold at the time.

The defendant then used a knife to cut the wrists of the deceased, but apparently that did not contribute to the demise of the daughter. Ultimately, the defendant put a blanket over the deceased and strangled her to her death.

I, of course, accept the defendant was suffering from major depression at the time of the killing. That is the sole reason why the murder charge has been reduced to one of manslaughter. However, the defendant was aware of what she was doing. The killing, as I pointed out, was to a certain extent planned, ie, by dissolving her own medications with hypnotic effect, knowing that the deceased was suffering from cold, by inducing the daughter to take the mixture as instructed. She then suffocated the daughter further.

As pointed out by the court in HKSAR v Lee Fung Yee [2011] 5 HKLRD 351:

“Whatever the circumstances, parents had no right to decide whether their children should live or die. It was simply not an option. Here D’s conduct, the defendant’s conduct, called for a substantial term of imprisonment to demonstrate society’s abhorrence of a deliberate plan to kill innocent children, and as a means of deterrence.”

As to the second consideration, ie, the danger that the defendant may pose to the public or other people, it seems from the probation report that the son of the defendant was far from reassuring. I note, in particular, paragraph 6 of the probation report which I shall not read in open court.

It was pointed out in R v Lee Sau Ping, CACC 189/1995, (unreported, 6 September 1995) that:

“Danger to the public certainly includes danger to the people she knows and danger to the people to whom she is related. As my Lord said, one cannot relate this element of danger to any definite period of imprisonment. It is a factor to be taken into account in imposing an overall sentence.”

Had the defendant been charged for murder of her daughter, she would, of course, receive the mandatory life imprisonment upon conviction.

Having considered all the above, I am of the view that a starting point of 6 years’ imprisonment would be appropriate in the present case.

Given the defendant’s plea, she is therefore sentenced to 4 years’ imprisonment.