HKSAR v. Yip Hon Ming

HCCC 62/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 62 OF 2016

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

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COURT: The defendant had pleaded guilty to one count of manslaughter, that on 17 June 2015 in Hong Kong, he unlawfully killed Wong Loi-shing. The facts show that at the time of the offence the accused was 26 years old and the deceased was 55 years old. The deceased was a taxi driver who, in the early hours of 14 June 2015 at about 1.30 am, had picked up the defendant and driven him to a place near Tai Yin House, Fu Tai Estate, in Tuen Mun. According to a security guard, who was at his guard post, he noticed around that time that there were noises of quarrelling coming from the direction of a roundabout nearby.

He looked in the direction of the noise and saw a male in a yellow t-shirt, whom he subsequently identified as the defendant, pull open the door of the driver’s seat and drag the taxi driver out by force. He noticed that there was a scuffle and the defendant punched the face of the driver two to three times, and the driver fought back also by punching the defendant’s face once. They continued to scuffle and a second male walked up to the accused and, where the taxi driver was also, and PW1, the security guard noticed that the second male also scolded the taxi driver and punched the taxi driver’s face two or three times with his right fist. He observed this some 30 feet away.

Now, around that time the second prosecution witness, who just happened to have exited a car park, was passing by the scene and noticed the deceased and the defendant grabbing at each other’s neck and arms. He was the first of the two good samaritans that happened to pass by that night. He stopped his car because he noticed that the deceased had white hair and appeared elderly and so he tried to stop the dispute.

He noticed that the deceased’s face was bleeding and he smelt alcohol on the accused. This second witness then pulled the accused away and separated the accused from the deceased, but the accused continued scolding the deceased in foul language and threatened him by asking him not to go away because he will be in trouble once his followers, and I quote, “Once my followers arrive, as you cursed my mum”.

Then, not desisting, the accused then suddenly rushed up to the deceased and punched his head again several times. So the second prosecution witness came forward again to pull the defendant away and told the deceased to leave the scene. The deceased then retreated a few steps and, according to the second prosecution witness, another male appeared at the scene and appeared to reinforce the defendant by scolding the deceased with foul language.

It is to be noted here that this second prosecution witness did not see the second male assault the deceased. Then the second prosecution witness said he saw the deceased walk towards the guard post where the security guard, the first prosecution witness was, and before the second prosecution witness could stop the defendant, the defendant had rushed to the front of the deceased and punched him on his upper body twice with both his fists.

And it was PW2’s observation that the deceased did not appear aware of the attack and fell backwards to the ground after being punched. The defendant was seen kicking the deceased’s feet a few times, but not with great force, appearing by his action to ascertain whether the deceased was conscious. The defendant continued to scold the deceased and then the third prosecution witness, the second good samaritan of the evening appeared. She was on her way home and she saw the defendant bend down and slap the face of the deceased whilst he was on the ground and told the deceased not to play dead, but get up.

So she walked up to the defendant and told him not to beat the old man anymore and the defendant told her fiercely to leave. So she left and called the police. Then both the defendant and the other male who had come on the scene then left the scene. The deceased was taken to hospital subsequently and was conscious for a short while, and a statement, or rather part of a statement was taken from the deceased. The deceased said in his statement that he had picked up the defendant from Tsim Sha Tsui East and he had been told to go to this Fu Tai Estate. When the taxi arrived, the male, the defendant, was asleep during the journey so he had to wake up the defendant who then proceeded to tell him that he actually wished to go to Tin Shui Wai, and the defendant then started to scold him for not being familiar with the roads.

He said the male then got off the taxi without paying the fare, so he alighted to ask the male to pay. Then he was punched in the face and head. He said another male arrived who appeared to reinforce the defendant, but at that stage the statement taking had to stop because the deceased had to be taken away for an x-ray check. Unfortunately, these were the last words from the deceased, because it was subsequently discovered that he had severe head injuries and he went into a coma and three days later he was certified dead. The forensic pathologist examined the deceased and found bruising over his face and also on his front middle chest, and also that his skull had been fractured and the brain was congested and swollen, amongst other injuries.

The forensic pathologist, Dr Foo, was of the opinion that the deceased had died as a result of unsalvageable head injuries as a result of blunt force trauma. The defendant, after his arrest, under caution said he was too drunk and he could not remember anything that had happened. The defendant was subsequently identified at the identification parades by both the second and the third witnesses. And DNA obtained from the bloodstains found on the deceased’s shirt collar could have originated from the accused and DNA from saliva found from the offside rear of the taxi could have originated from the accused too.

The defendant has a criminal record, and I do accept from Mr Donald that his earlier crimes were committed when he was just a teenager. He had assault occasioning actual bodily harm convictions in both 2003 and 2007. And in 2009, he was convicted of blackmail and false imprisonment in the District Court. And then in 2012 and 2013, he was convicted of very minor offences, really basically to do with motor vehicle offences.

In mitigation, Mr Donald submitted that the defendant is a noodle chef and earns between 15,000 to 18,000 a month and has been married for the past nine years. He has three children, aged between two years to 10 years. The defendant was supporting his family and has endeavoured to lead a crime-free life after his marriage. This is a senseless tragedy, resulting in the loss of a life. I do accept that the defendant is remorseful, as he has said so in his letter to the court and that it will be forever on his conscience that he has caused the loss of a life so unnecessarily. I accept that the defendant has shown his remorse by his early guilty plea and that there is no premeditation in this offence. However, this case is more serious than the cases that have been submitted to this court for consideration.

This is not a one-punch manslaughter case as most of the cases submitted in the English courts were. In those cases, on many occasions, it’s because of drinking in pubs and these people come out of the pub and cause unnecessary violence, and someone is knocked backwards and then hits his head on the pavement and dies. The deceased in this case was going about earning his livelihood. He was doing his lawful job as a taxi driver to earn a living. And the aggravating factors in this case is that the defendant, after initially hitting the deceased, was actually pulled away by a passerby, but he did not desist, he continued to run up to the deceased to attack him.

And whether the final blow on the deceased was as a result of a hefty push or punches on his chest, nevertheless at that time the deceased had retreated from the scene and gone away, trying to go towards the guard post, and it was the defendant who rushed up to him to give him this final assault. Also an aggravation I consider is the fact that the defendant was heard to threaten the deceased, that he was waiting for his followers to come because the deceased had insulted his mother. So it is not a case of a one-punch manslaughter. This is a case also which calls out for an appropriate sentence as a general deterrence for people not to act violently on our streets.

There appears to be a growing tendency for our taxi drivers to be attacked, after being accused of driving the wrong way or a longer distance than necessary. If that is the case, a report to the police would have helped matters and there is no necessity to resort to violence. Resorting to violence, even if the taxi driver had overcharged or been in the wrong, is nowhere a mitigating factor. Taxi drivers, particularly those who ply their trade at night, have to be protected from this unnecessary violence as they are very susceptible to what is commonly called ‘stranger violence’; that is, violence from strangers. And in this case, this unnecessary violence had resulted in the loss of life.

As can be seen from the cases submitted by both counsel, the sentences for this type of offence are very fact sensitive. I am very grateful to both counsel, Mr Cheng and Mr Donald, for submitting the various cases for my consideration. I would also like to refer to the Court of Appeal case, HKSAR v Wong Shiu Mouk which is CACC 239/2007, where the Vice-President of the court, Stuart-Moore J, as he then was, had said at paragraph 14, when a judge considers an appropriate sentence in manslaughter cases it is not helpful to actually indicate a starting point. The learned Vice-President said that:

“This is one category of offence which can vary so greatly in gravity and can be affected by so many considerations, both adverse and favourable to a defendant, that a starting point becomes a hindrance and an irrelevance in the quest for a just resolution to this complicated task.”

In R v Lee Sau Ping, CACC 189/1995, Chan J, as he then was, expressed the difficulty as follows:

“This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide-range of sentence, from probation to life imprisonment. A sentencing judge may well feel having taken an overall view of the matter that all he can finally do is to decide on the appropriate sentence.”

Having considered the facts of this case, and the mitigation and the defendant’s background, I consider that the appropriate sentence in this case, with also the aggravated features that I can see in this case, that an appropriate sentence would be one of 5 years’ imprisonment. So I sentence the defendant to 5 years’ imprisonment.