HKSAR v. Li Kit Chun

[English Translation – 英譯本]

HCCC 470/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 470 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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Court:

The defendant Li Kit-chun was charged with one count of murder. She pleaded not guilty and after trial was found guilty by the jury of manslaughter on the basis that she was provoked at the material time.

Turning to the facts now, the evidence adduced in court shows that this is a case of family tragedy. The deceased was the ex-husband of the defendant. They married in 1988 and their only son was born the next year. Since the defendant came to Hong Kong in 1996, the family —— a family of three members —— had been living in a public housing unit in Lek Yuen Estate. Actually, one year, one year before that, in 1995 their son already came to Hong Kong.

After the defendant came to Hong Kong, at the beginning family life was happy. Both she and her husband then were gainfully employed. However, in 1997, the deceased was laid off due to the financial crisis. At the time, there was severance pay in the sum of two hundred thousand odd dollars, but the deceased spent all of it on drinking and gambling, without giving even a cent to the family. After the deceased became unemployed, apart from working for a very short time as a watchman, basically he did not work and the whole burden of supporting the family fell on the shoulders of the defendant.

Sometimes, the defendant had to juggle with two jobs in order to earn enough money to keep the family going. When she could not make both ends meet, she applied for allowance for low income families. According to the defendant, life was really hard. The deceased behaved very roughly after drinking. He swore at the defendant in foul language and sometimes even used force on her. However, the defendant had never reported these incidents, these domestic violence incidents to the police or asked for help. At times she had thought of killing herself but because she was unwilling to leave her son behind, in the end she did not do anything to end her life. The defendant many, many years ago, ten odd years ago, actually already stopped occupying the same bedroom with the deceased and moved to her son’s bedroom. She would rather sleep on the floor, on the floor beside her son’s bed. In this way she was separated from the deceased, because very often the deceased did violence to her when he got drunk.

Evidence before the court shows that the deceased damaged the door of the bedroom which the defendant and the son occupied with his fist and I also saw the signs, the, the places on the door damaged by the deceased by hacking it with a chopper. From the photographs I also noticed that although such things happened, the door was not changed, not replaced by a new one. They just covered the damaged areas by putting Chinese New Year scrolls over them.

When the defendant realized that she was no longer able to support the family financially by her effort alone, she and the deceased came to an agreement that they would divorce, and in 2013 their marriage was formally dissolved. After divorce the deceased could apply for CSSA and the burden of the defendant could be lessened. In fact, after the divorce, a halfway housing unit, which was situated in Yuen Long, was allocated to the deceased by the Housing Department, but the deceased refused to go there because he felt that Yuen Long was too far away. The defendant was willing, despite the fact that they were divorced, she was willing to let the deceased continue to live in the same flat in Shatin.

On the material day, 3 March 2014, the defendant returned home after work. At that time she was working as a watchman, as a security guard and had to work 12 hours a day, from 7:30 am to 7:30 pm. She got off work, came back home and felt exhausted. She sat down to have a rest. The deceased asked her to go out to buy something, to buy some cooked rice for him to eat. The defendant replied by just saying that she was very tired and that she wanted to have some rest. All of a sudden the deceased, without giving any warning, picked up a very big and very, quite heavy spanner and hit her on the head with it, with the result that her head was badly hurt and bled. At that moment, her eyes were covered with blood. She groped about and found a pair of scissors. She stabbed the deceased with the scissors, but I saw that -- in the final report it was stated that the injuries caused by her stabbing him with the scissors were only superficial injuries. When the defendant stopped stabbing the deceased, she found the deceased sitting on the sofa bleeding. She went over to see how injured he was, but he pushed her away and she fell down. She got up and went to him again, intending to check his injuries. At this juncture, either the deceased actually hit the defendant again with the spanner or the defendant perceived that she was going to be hit by the deceased again, under one of these two situations, she snatched the spanner out of the deceased’s hand and hit him on the head, causing him serious body, head injuries, as a result of which and other complications, including pneumonia, he died five days later.

The evidence shows that after this incident occurred, ie after the deceased was wounded, the defendant became very anxious. She tried to staunch the bleeding for him, asked her son to call the police and asked the ambulancemen to treat her husband first. As what I said just now, the deceased did not die instantly; he died five days later in the hospital. This is a summary of the facts.

As for the defendant’s background, in fact much of the defendant’s background already came out in the evidence at the trial; still, I called for a psychologist’s report on the defendant. What the defendant told the psychologist was essentially very much the same as what she said in court. She reiterated that she was acting in self-defence at the time and emphasized that she injured her husband only because of that. And she -- The defendant told the psychologist that she did not accept the conviction of manslaughter, but she accepted that -- She regretted; she blamed herself. She said if she had bought food and took it home, this incident would not have happened. She regretted very much for causing the death of her ex-husband by acting in the way she did.

The psychologist assessed the condition of the defendant. She said -- After she examined your condition and had knowledge of your background, she commented that you managed your marital conflict, your pent-up frustration and aggrieved feeling poorly, and that’s why you committed the present offence. She stated that in view of your poor coping with your -- the problems arising from your relationships with other people, the risk of your repeating, that’s the re-emergence of violent behaviour was moderate. She considered that you needed to receive further counselling from a psychologist so that you can learn how to manage your emotions and improve your interpersonal relationships.

All right, turning now to mitigation, I have received quite a number of mitigation letters, including those from you defendant, your son, your younger sister, the person who was your supervisor when you’re at work, your colleagues, your kaifongs and a group of people who called themselves “fellow sufferers”, who sympathized very much with you defendant in your sufferings, and also from a member of the Legislative Council, his assistant, and a pastor. All of them essentially asked me to be lenient with you, to give you a lenient sentence as far as possible. I do not intend to retell all the contents of these many letters. I will just briefly mention some of them.

Both you defendant and your son told me about the condition of your family life at the material time, emphasizing particularly the fact that you defendant were the sole breadwinner of the family, and that after you returned home, you still, when you were after work you still had to deal with the household chores, to look after the family. You still had to work when you were on holiday. You dedicated yourself wholeheartedly to looking after the family. It can be said that whatever good things you came by you gave them to your son and your husband, and what you yourself used were the worst things. Both of you also mentioned the violent manner in which the deceased behaved after he drank alcohol. I am not minded to go into details.

A member of the Legislative Council Mr Fernando Cheung and his assistant Ms Liu wrote to me to mitigate on your behalf. The gist is that you asked Mr Cheung to help your son and for this reason he came to know you. You did not ask Councillor Cheung to help you yourself. You were concerned for your son. You didn’t know how your son would be able to cope with this radical change in your family. Worse still, your son tends to keep himself to himself, that means he doesn’t like meeting people socially. When social workers or his neighbours wanted to see him, to help him, they couldn’t find him. You worried about your son very much, and in these circumstances you went to see them.

During mitigation, when Mr Luk was making mitigation submission on your behalf, I raised this point, that was, both Councillor Cheung and Ms Liu (his assistant) queried whether there was anything improper in the allocation of accommodation under the public housing policy in the case where the couple involved were divorced and were at loggerheads, but actually in the present case this point is not material, because, as I said before, and defendant you also said in evidence that the main reason for the divorce was not that you could not live with your husband at all; the reason was only a financial one. You wanted your husband to be able to apply for CSSA, thereby reducing your burden. In your evidence you frankly said that even though there was no love, in the sense of love between man and woman, any more, there was still a feeling of care and concern, so you treated him -- when your husband said he didn’t want to move to Yuen Long, you were willing to let him go on living in Shatin. Therefore, this is not a case in which the two parties are incompatibly hostile to each other but are still forced to live together.

In his mitigation submission, Mr Luk referred me to a case decided in 2002, called Hui Kwan Yuen, and he emphasized paragraph 11 of the judgment, in which it was held that even if the manslaughter took place in a domestic setting, that is to say, took place in the wake of family disputes, it did not mean that the sentence would automatically be lower than that in a manslaughter case where the parties were unrelated; that’s not automatic, and that each case had to depend on its own facts. In that case, after reviewing some manslaughter cases in which provocation was pleaded, the Court of Appeal saw that, held that where the defendant had offered to plead guilty to manslaughter, but was not accepted by the prosecution, and that in the end the jury found that manslaughter was established, the sentence for such a case was in the range of four to six years.

Mr Luk also urged me to consider the English sentencing guideline about manslaughter by reason of provocation, which was issued in 2005. He asked me to consider the factors mentioned therein, to consider which factors would make the sentence, would make the case more serious, which factors would make the case less serious. Later I will refer to that, refer to this guideline in greater detail. In short, Mr Luk asked me to take into account all the circumstances of this case and pass a sentence as leniently as possible on you defendant.

In law, any person who is convicted of manslaughter after trial is liable to imprisonment for life and to pay a fine. It is -- If the court decides to impose a fine, it can be any amount.

No one would dispute that manslaughter is a serious crime. Generally speaking, a person convicted of manslaughter can expect that he would have to serve a rather long sentence even if it is not a life sentence, but of course it does not follow that a person convicted of manslaughter must be locked away for many many years, because the sentencing judge is required to consider all the circumstances of the case in question, in particular whether there are special features in the case, before he decides on the appropriate sentence. In Hong Kong there is no sentencing guideline which specifies any applicable range of sentence for a person convicted of manslaughter. There is no such sentencing guideline and it is up to me to consider what the appropriate sentence for this case should be.

Now I consider the English sentencing guideline. In this case, in this sentencing guideline 11 points or 11 factors are enumerated for me to take into account. I will not read out these 11 factors. In a nutshell, it says that in considering the sentence, the sentencer has to take into account the need to protect the people, the public. Are there any aggravating factors? Any mitigating factors? What was it by which the defendant was provoked? How serious was it? Right, the defendant was, well, was caused to lose his self-control. In what way did he lose self-control? To what extent? Was any weapon used? After the event, after the deceased was wounded, what was done subsequently? These are to be considered by the court.

I do find the, these, the factors listed in the sentencing guideline useful. I mean when considering the gravity of the present case and whether there are aggravating or mitigating factors, these, this guideline is applicable. However, I do not follow the sentence ranges specified in the guideline for specific circumstances, because the English guideline is not binding on courts in Hong Kong, and I have to take into account local conditions in Hong Kong and the persons involved, so I will not simply follow the part in the English guideline concerning sentence ranges, though I will consider the factors.

Well, judging from the facts, from the evidence given in this case, the psychologist’s report subsequently obtained and the mitigation letters, the impression I have is that you defendant can be said to be a typical, rather old-fashioned Chinese woman. You put your husband and your son before everything else, rather than -- You didn’t pay much attention to your own interests. When your husband stopped working, became unemployed, you became the sole breadwinner of the family. Furthermore, when you returned home after work and when you were on holiday, you still looked after, dealt with household matters, household chores, went to buy food and cooked. It can be imagined that under such circumstances how exhausted you must have been, both physically and mentally.

I accept that you defendant were indeed a victim of domestic violence when your husband was drunk. I believe that he not only abused you with foul language, that was, verbally upset you, but he also did violence to you. All these were done when he was under the influence of alcohol. Unfortunately, despite the fact that such things happened to you, you did not seek help but only kept these unhappy emotions to yourself. You didn’t even reveal your problems to your colleagues when you went to work. Perhaps you had no friend who could help you to solve these problems.

There is one thing I must emphasize, that is I think that you defendant, when you gave evidence, you were actually quite fair, because you did not paint your husband as a monster who would at all times treat you roughly. Your evidence was that he would do that only after he had taken alcohol, but unfortunately he often drank. In my view, at the material time defendant you received, you were subjected to behaviour which provoked you and the provocation was grave, because I take into account the fact that by that time you had already worked for 12 hours. When you returned home after work, you were exhausted to the utmost, and surely I do not forget that the 12 hours on that day was not the only period you had worked. The exhaustion you suffered were cumulative. You worked everyday. Everyday you had to work for 12 hours and you had to work even on holidays.

Well, under such circumstances you came back home. When the deceased asked, asked you to go out to buy something for him to eat, you just said that you wanted to take some rest. You did not flatly refused by saying “I won’t, you go out to buy it yourself.” In these circumstances, the deceased went so far as to hit you on the head, hit you defendant with a big and heavy spanner for no reason and without giving any warning, so that your head was badly hurt and bled. I have regard to the fact that the part hit was the head, your head, not elsewhere on your body. One can imagine that at the moment you must have been very frightened, very shocked by what happened, by the attack which made you bleed. Your instant reaction was to get -- picked up a pair of scissors and stabbed your, your ex-husband, that’s the deceased with it.

I take into account the fact that at that moment you did not intend to kill him, because the injuries, the injuries inflicted by the pair of scissors were rather superficial. Well, later when you saw that the deceased was sitting on the sofa bleeding, you wanted to go to him to see how badly he was injured, but he pushed you. Well, whether the deceased actually hit you, or whether you felt that he hit you, or you perceived that he was going to hit you, [in one of these situations] you snatched the spanner and hit him in return. Here, I must stress that the jury’s verdict shows that they did not accept that you defendant were acting in self defence at that juncture. They considered that at that juncture you were provoked. Nevertheless, the evidence shows that what happened was not premeditated; that is to say, defendant you had never thought of wounding your husband in this way, because you did not expect that your husband would hit you on the head with the spanner in this way, hit you on the head so unreasonably. The weapon you used was not deliberately brought from outside, brought to your home for hitting the deceased. Further, actually the weapon was used by the deceased himself to hit you, to attack you defendant first. I have to take this into account too.

After you wounded your husband, your immediate reaction clearly shows that you deeply regretted and that you were anxious that the deceased could receive medical treatment, receive help right away. I have no doubt at all that at that time defendant you were already full of remorse and at present you still regret very much, very -- You think that you caused the death of your husband, late husband, your, perhaps, ex-husband. You think that what you did was the cause, and for that you feel very very sorry.

As regards the psychologist’s report, well, the psychologist certainly is an expert. After she examined you, she made the assessment that the risk of your doing violent acts in future is moderate. Apart from the report, I have to bear in mind that you had never done any violent act to any person before for so many years. There is no such evidence. On this occasion it was under very very unusual circumstances that you wounded your ex-husband resulting in his death. I do not think that you will pose any threat to the Hong Kong public or do any violence to them. I understand that you certainly worry about your son very much. In this incident, obviously many things happened. Father passed away and mother is in jail. It is of course very difficult for the son, your only child, to accept this, to cope with this. You, being his mother, are concerned for your son. This is an expression of human nature and is fully understandable.

I have considered all the circumstances of this case, including the defendant -- including the violent acts the deceased did to you defendant, the circumstances of acts of domestic violence, the fact that you have no criminal record whatsoever, and that there is no information which shows that you have a tendency to violence or you had done any thing improper to any person. Your neighbours and colleagues all spoke highly of you. They described how friendly and easy of access you were, how obliging and eager to help others you were. That means basically you are a person of very good character. In addition, you’re in your 50’s and you have a clear criminal record. You are 50 odd years old and had not committed any offence. What’s more important is of course how come this incident occurred, in what circumstances you defendant received what kind of provocation before you did what you did. I consider this case to be a very special case. Defendant, you were a victim of domestic violence. I think I have to take this into account; that is to say, what happened at the material time was not just a single occasion of provocation; rather, it was a case in which you had been suffering maltreatment in silence for many years and then in one go it exploded. Taking this into account, I am of the view that a starting point of three and a half years is appropriate.

All right, defendant you did not plead guilty to manslaughter. You fought the case on the basis of self defence, which was rejected by the jury. Nevertheless, I accept that initially you were acting in self defence, because judging from all the circumstances, it is impossible that you were acting other than in self defence, because at the beginning he really -- you were hit on the head by your ex-husband with a big spanner. Your first reaction must have been to defend yourself. Therefore, it cannot be said that in this case you did not do any act of self defence, though in the end you were not acquitted by reason of self defence; rather, manslaughter was established on the basis of provocation. Further, from the very beginning you were very cooperative with the police. From the very beginning you made a clean breast of everything and it can be said that you did not engage in any unarguable argument. Apart from cooperating with the police all along, when you were in court you did not waste the court’s time at all. In these circumstances, even though you did not plead guilty to manslaughter at the very beginning, I will give you a discount. I give you a discount of six months.

Well, I now come to the stage after you defendant -- I am referring to what you did after you wounded your husband, ie everything you did after you committed the offence. I consider it to be a very important mitigating factor, because your behaviour shows that you were extremely remorseful at the time. That’s why you were so anxious about your husband’s injuries, tried to stop his bleeding and asked other people to save -- to help you. In the circumstances at that time, clearly defendant you had no idea at all that your husband would die five days later. I mean you at that time thought that you had just wounded your husband. You had done your best to enable your husband to receive medical treatment as soon as possible. You even told the police what you used to wound your husband. I think that these are very important mitigating factors. I will give you discount of another six months. After all deductions were made, the term of imprisonment should be two and a half years.

I understand that defendant you have been in custody for 19 months, right? If you all along are of good behaviour, for a sentence of two and a half years, in fact you can be released right away; but I would like to confirm that first. If it is not so, I shall reduce it to the extent that you can be released right away. That’s because I think it is sufficient, but I shall make sure that it is so first before I formally pronounce the sentence of two and a half years. Am I correct? Can the Correctional Services officers help me to do the calculation?

Correctional Services officer: I will notify Tai Lam Correctional Institution to work it out.

(It is not necessary to transcribe the hearing between 12:06 pm and 12:44 pm)

Court: Stand up. I now formally sentence you defendant to imprisonment of two and a half years for this case.