Secretary for Justice v. Wan Hoi Ming

CAAR 2/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 2 OF 2016

(On Appeal From HCCC NO. 75 OF 2015)

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J U D G M E N T

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Hon Lunn VP (giving the for Judgment of the Court) :

1.With the leave of Cheung CJHC, granted on 8 March 2016, the Secretary for Justice appeals against the sentence of 3 years’ imprisonment imposed on the respondent on 16 February 2016 by Barnes J following the respondent’s conviction on his plea of guilty of the manslaughter on 8 April 2014 of Tse Wai-lam, his 67-year-old mother‑in‑law, contrary to Common Law and punishable under section 7 of the Offences Against the Person Ordinance, Cap. 212.

2.On 6 January 2016, the prosecution informed the judge that the Department of Justice was prepared to accept an offer by the respondent to plead guilty to manslaughter and that it wished to amend the indictment, which alleged murder against the respondent, to a count of manslaughter on the basis of an unlawful and dangerous act without intent to kill or cause grievous bodily harm.  On 15 January 2016, the respondent pleaded guilty to an amended indictment and accepted the summary of facts as the factual basis for the court accepting that plea.  In the course of mitigation, for the first time Mr Luk SC advanced the explanation for the respondent conduct as being that:[1]

“ the defendant’s wife was actually held hostage by a loan‑shark called Li Shing Ho...Li threatened to kill his wife and son of the defendant did not make full repayment that day.”

3.Having been told that the respondent owed a total of about $18 million to various people and that he owed $1.1 million to Li, the judge indicated that she was not prepared to act on that bare assertion in mitigation from counsel.  As a result, the proceedings were adjourned and at the adjourned hearing on 16 February 2016, the judge received the evidence of the respondent, his wife and submissions from counsel, following which she made a ruling.

The facts

4.At about 14:58 hours on 4 April 2014, the respondent telephoned the police and informed them that he had suffocated the deceased to death at their home in Mei Foo Sun Chuen where the deceased, the respondent, his wife, their son and a domestic helper lived.

5.At about 15:00 hours, ambulancemen arrived at those premises, to which they were admitted by the respondent.  He told them again that he had suffocated the deceased.

6.The ambulancemen found the deceased lying supine on the floor of the living room.  Although cardiopulmonary resuscitation was administered to her, no heartbeat was detected.  The deceased was taken immediately to Princess Margaret Hospital by ambulance, where she was admitted to the A&E ward at 15:17 hours.

7.On admission, the deceased had no spontaneous breathing nor peripheral pulses and no heartbeat.  However, her circulation was restored with the aid of a mechanical ventilator.  She was observed to have erythema over her face and neck regions, an abrasion at the tip of her nose, bruising over her right knee and an abrasion on her left knee.  Swelling and bruising was noted on the knuckle region of her right hand.  The odour of thinner solution was detected.

8.At about 16:06 hours, the deceased was transferred to the medical ward and then, at 18:05 hours to the Intensive Care Unit, where she remained comatose.  She had chemical burns over her face, severe metabolic acidosis, liver failure and acute lung injury noted.  She required a high level of ventilator and inotropic support.

9.On 7 April 2014, the deceased showed features consistent with hypoxic-ischemic brain damage with diffuse cerebral oedema.  An electrocardiogram indicated a poor neurological prognosis.  At 03:34 hours on 8 April 2014, the deceased was certified to be dead.

10.An autopsy on the deceased conducted by a forensic pathologist on 11 April 2014, revealed well-demarcated areas of erythema and excoriation of skin with a few small abrasions over the lower face and neck.  An internal examination revealed: widespread hypoxic brain damage; severe aspiration pneumonia and microscopic focus of acute myocardial infarction.  The findings of brain-damage and aspiration pneumonia appeared to be the cause of death.  Those injuries could have been caused by inhalation of organic solvent, smothering due to the blockage of external respiratory orifices or a combination of those events.

The respondent’s admissions

11.Following the arrival of the ambulancemen at the respondent’s family home at about 15:00 hours on 4 April 2014, the respondent gave the following explanation to PC 7022:

(i) The deceased was in a coma, after being suffocated by him with a towel in the premises;

(ii) at about 14:00 hours on 4 April 2014, he asked the deceased to lend him money for a mortgage on the premises.  For that reason, a quarrel between the two ensued and he requested the domestic helper to leave the premises temporarily;

(iii) whilst the quarrel was continuing, between 14:00 and 14:30 hours he went to the balcony from his bedroom six or seven times and each time he picked up a bottle of thinner which he splashed onto a towel;

(iv) at about 14:40 hours, when the deceased was sitting in front of the computer desk with her back to the respondent, he picked up the towel from the desk, onto which he had splashed thinner, grabbed her neck from behind with his left hand and pressed the towel onto the deceased’s nose and mouth for about five minutes, until she lost consciousness and fell to the floor;

(v) at that juncture, the respondent was petrified, as a result of which he telephoned the police. 

12.Having been arrested and cautioned at 15:15 hours on 4 April 2014 by PC 7022, the respondent stated “on impulse I thought of making my mother-in-law faint by suffocating her with a thinner splashed towel”. 

13.At 21:13 hours on 4 April 2014, having been cautioned again, the respondent participated in a video-recorded interview in which he gave an account of the circumstances leading to the death of the deceased to the following effect:

At the time of the death of the deceased he had accumulated debt to a total of about $18 million.  Some of those debts arose from gambling losses in horse racing and football.  He was receiving a lot of telephone calls pressing him to make repayments.  As a result of the pressure on him on 31 March 2014 he attempted to commit suicide by cutting his wrists.  On 3 April 2014, he bought a bottle of the thinner, which he intended to use in another attempt at suicide.  However, he determined not to do so, having decided that it would have been irresponsible conduct given his responsibilities to his wife and son.  At about 14:00 hours on 4 April 2014, he received yet another phone call in which demands were made for the repayment of a debt.  As a result, he asked the deceased to lend him $1 million.  However, she refused to lend him the money.

14.It was in those circumstances that he began to consider incapacitating the deceased, so that he could then search for valuable property in the premises. As a result, at his request the domestic helper absented herself from the premises. Then, he approached the deceased from behind covering her mouth and nose with a towel impregnated with thinner. She resisted him and they both fell to the floor where she continued to struggle as he maintained the towel in position over her mouth and nose. Eventually, she became motionless. The attack had lasted less than five minutes. Next, whilst the deceased lay motionless on the floor he searched her bedroom unsuccessfully for valuables. Having observed that the deceased remained motionless, he telephoned the police.

15.The respondent asserted that he had not intended that the deceased should die. Rather, he thought the thinner would make her lose consciousness quickly, so that he could ransack the premises to search for valuables with which to repay his debts.

Ruling

16.Of the evidence that the judge received from the respondent and his wife as to the circumstances leading up to the commission of the offence, the judge said:[2]

“ The defendant claimed that his wife was being held hostage by a creditor “Y” who had threatened to harm her and their son should he fail to repay the loan $1.1 million on that day, that is 4 April 2014.  As he was concerned for their safety and in a desperate attempt to get some money to repay Y, the defendant soaked a towel with thinner to render his mother-in-law unconscious in order to get two expensive watches from her. He did not divulge to the police such an incident as he was threatened by Y to mind what he said after Y learned of what the defendant had done to his mother-in-law.”

17.Having determined that “the defendant only has to show on a balance of probabilities that what he and his wife had said were true”, the judge said:[3]

“ I accept that the defendant was told by Y at the time that should he fail to repay, harm will be done to his wife, that is, to collect her corpse. I accept that the defendant was really worried about the safety of his wife at the time. I accept the evidence of the defendant’s wife which does have a ring of truth about it.

I accept that she was slapped by Y and she could not help but cry when she heard the defendant’s voice over the phone.  I accept that the defendant’s wife was not allowed to leave at the beginning and was effectively being held hostage until she was allowed to leave later.  I accept at the time, believing that Y meant what he had said, the defendant resorted to rob his mother‑in-law by rendering her unconscious, never expecting that she would eventually die as a result.  I accept the reason given by the defendant for not telling the police about this incident at all and for his wife not disclosing the same to the police either.”

Reasons for sentence

18.In her reasons for sentence, the judge noted that the respondent was then 39 years of age and that he had no previous criminal convictions in Hong Kong.  Of matters advanced in mitigation, she said :[4]

“ ...the defendant bought the thinner as he thought of killing himself. Mr Luk informed me, as instructed by the defendant, that at the time in question his wife was being held hostage by one particular loan shark. This loan shark threatened the defendant that if he did not repay the money he should prepare to collect his wife’s corpse.

The defendant was worried and he asked his mother-in-law for a loan.  As the mother-in-law refused, he then decided to rob her by first rendering her unconscious.  This episode was never mentioned to the police as the loan shark knew the particulars of their young son’s schooling.”

19.Having averted to her acceptance of the evidence of the respondent and his wife as to the circumstances leading up to the commission of the offence, the judge noted salient features of the report of the clinical psychologist and the psychiatrist.  The former said:[5]

“ ... that the defendant is a rigid person who overly valued financial capability and achievement in establishing his self-worth. He persistently attempted to present himself as a tough and capable person, despite the fact that he owed people a huge sum of money. He was unable to cope with the stress and he had poor problem‑solving skills. His risk of reoffending is low. Counselling is recommended but declined by the defendant.”

The judge noted that the psychiatrist said the respondent was “not diagnosed to be suffering from a form of psychiatrist illness.” [6]

20.Having noted that a person convicted of the offence of manslaughter was liable to imprisonment for life, the judge said:[7]

“ Normally speaking, a person convicted of manslaughter would be looking at a long term of imprisonment if not a life sentence. But that does not mean that a person convicted of manslaughter must be locked away for many years. The sentencing judge must consider all the circumstances of any particular case to decide the appropriate sentence.”

21.Then, the judge said:[8]

“ On the information before me, the defendant clearly acted totally out of character in this incident.  It was the huge debts he owed and being hard pressed by debt collectors, particularly when he believed that the loan shark “Y” would harm his wife and son, should he fail to make repayment on that fateful date, then he stupidly adopted the scheme of rendering his mother-in-law unconscious so as to get her valuables to stave off the debt collector, and causing the death of his mother-in-law as a result.”

Starting point for sentence

22.Having said that she accepted the opinion of the clinical psychologist there was a lower risk of the respondent reoffending and that she accepted that the respondent was “truly remorseful”, the judge stipulated a starting point for sentence of 4½ years’ imprisonment.

Discount

23.Next, having determined that there were no aggravating circumstances in the commission of the offence relevant to an enhancement of that starting point, the judge afforded the respondent a discount of sentence of one-third for his plea of guilty.

Sentence

24.In the result, the judge sentenced the respondent to 3 years’ imprisonment.

The Secretary for Justice’s grounds of appeal

25.Ms Anna Lai SC submitted that the starting point of 4 years and 6 months’ imprisonment and the resulting sentence of 3 years’ imprisonment were wrong in principle and/or manifestly inadequate.  Accordingly, she asked this Court to set aside that sentence and substitute an appropriate sentence.  She advanced three grounds of appeal:

(i)   she submitted that the judge had failed to give sufficient regard to the aggravating features in the present case: namely, the risk attendant in using an organic solvent to disable the deceased; the fact that the attack was to some extent premeditated; and the degree of violence visited on an elderly woman;

(ii)   then, she submitted that the judge erred in giving undue weight to pressure faced by the respondent at the time of the commission of the offence, namely the threat by the loan sharks to the safety of his family members; and

(iii)   finally, she submitted that the sentencing imposed by the judge was an unduly lenient sentence, which fell outside the range of sentences which could reasonably be considered appropriate, having regard to all the relevant factors.

26.In support of her submissions that circumstances of the commission of the offence merited the imposition of a higher sentence, she referred the Court to various judgments of this Court, including HKSAR v Luo Fu Di [9], HKSAR v Cheung Tak Wa [10], HKSAR v Tse Kwok Cheong [11], HKSAR v Yip Chu Sum [12] and HKSAR v Kwok Cheuk Man [13]. 

27.In her oral submissions, Ms Lai said that she did not seek to challenge the determinations made by the judge in respect of the evidence that she had received from the respondent and his wife as to the circumstances leading to the commission of the offence.

28.Ms Lai invited the Court to note that the respondent acknowledged that he had persisted for some time in his conduct in rendering the deceased unconscious, in the face of her struggle to resist him.  In his oral admissions to a police officer at the premises in the afternoon of 4 April 2014, the respondent had admitted having pressed the towel ...onto the deceased nose and mouth for about five minutes until she lost consciousness and fell to the floor.”  Also, in the summary of the video record of interview set out in the Summary of Facts the respondent accepted that he had said that having covered the mouth and nose of the deceased with a towel:

“ ..the deceased had pushed him away and they had both fallen to the floor where the defendant continued to cover her mouth and nose with a towel. The deceased continued to struggle on the floor and then became motionless. This incident lasted less than five minutes.”

29.Also, Ms Lai invited the Court to note that in rendering the deceased unconscious, the respondent had visited violence on the deceased which had cause injuries, other than those immediately connected with her death. On admission to hospital it had been observed that there was “… erythema over her face and neck regions, an abrasion at the tip of her nose, bruising over her right knee and an abrasion on her left knee. Swelling and bruising was on the knuckle region of her right hand.” [14]

The respondent’s submissions

30.For the respondent, Mr Joseph Tse SC submitted that the respondent had failed to establish that the sentence was wrong in principle or manifestly inadequate. He submitted that the respondent’s use of a stupefying substance to render the deceased unconscious was to be distinguished from the authorities relied on by the applicant. In those cases, the applicants had been motivated by greed to commit a crime, such as robbery. However, the respondent was responding to circumstances in which his wife was held hostage and her life threatened. He was doing so in the hour long period which he had been given to raise the money against the threat to his wife’s life. He submitted that there was no real element of premeditation. The respondent came to the decision to attack the deceased only shortly before doing so. Mr Tse acknowledged that he had been unable to find any authority relevant to the weight to be afforded to the mitigation advanced on behalf of the respondent in this case.

31.Mr Tse submitted that the fact that the respondent had reported the matter to the authorities, remained at the premises and explained to those that attended the premises the circumstances in which the deceased had been rendered unconscious were all factors of mitigation to which regard was to be had.

A consideration of the submissions

32.Notwithstanding the judge’s acceptance of very specific aspects of the respondent’s account of the circumstances leading up to the killing of the deceased, which are not challenged by the applicant, there remains one striking part of his account with which the judge did not deal. The respondent accepted that he had not told the deceased, when he sought to borrow money from her “that her daughter and grandson were being threatened with death.” In that context, the following exchange ensued in cross examination:[15]

“ Q. Did you not think that if you had told your mother-in-law that her daughter was being threatened with death she may have helped you very quickly to find the money?

A. Because I had already told her that I would like to borrow $1 million from her because my wife was together with a person of a financial company.

Q. You didn’t tell her that her daughter and grandson were being threatened with death.

A. That’s right, I didn’t.

Q. Do you not agree that if you had told her that she may have been far more inclined to lend you the money to save her daughter?

A. It didn’t occur to me.

Q. No. So instead you attacked her.

A. That’s right because she had already refused me and that was what I done to her.”  [Italics added.]

33.The respondent’s explanation that it did not occur to him that informing the deceased that his request for a loan was in order to secure the life of the deceased’s daughter and grandson might have made her more inclined to give him a loan, beggars belief.  The respondent had embarked upon the enterprise of stupefying the deceased in order to rob her without pursuing the most obviously available method of securing her assistance, first and immediately, to protect his wife, and secondly, to protect her and their son in future.

34.In a similar vein was the respondent explanation to the judge as to why it was that in the course of this evidence he was prepared to provide the name and mobile telephone of Mr Y in court, when he had not been prepared to disclose anything at all about Mr Y’s role to the police.  In his evidence-in-chief, he said that he had not told the police about Mr Y “...for fear that if I tell the police about the incident I would put my wife and my son in danger so I decided not to say a word about that incident.” [16] At the conclusion of his evidence, the following exchange ensued with the judge:[17]

“ COURT: So what is so different today or on 15 January that you would tell the court about this incident and you couldn’t tell the police earlier? The same position, your son is still in the same school and Y would still be able to get hold of him. What I mean is that you are scared if you divulged this incident, your son would be in danger because the creditor Y can go and get him from school but your son had not changed schools so whenever you say anything about Y, Y still could go and get your son and endanger your son. So why did you tell me now or tell me on the 15th?

A. Because that did not amount to an act of reporting it to the police. I was simply telling your Ladyship about that in an open court only.

Q. Because Y said you can’t tell the police so telling the court doesn’t amount to telling the police so that was alright, is that what you mean?

A. Well because telling the court about it is not equal to reporting that to the police and the purpose of my telling your Ladyship about that to serve as a mitigating factor in order to let your Ladyship know more of what a situation I was in.”

35.There being no challenge to the judge’s findings in respect of the account of the respondent and his wife as to the circumstances leading to the commission of the offence we approach sentence on the basis of the judge’s findings.

36.In considering the respondent’s culpability in the commission of the offence, it is to be noted that section 21 of the Offences against the Person Ordinance, Cap. 212 provides that it is an offence, punishable by life imprisonment, inter-alia, to apply a “...stupefying or overpowering drug” to a person with intent to commit an indictable offence.  Given that the respondent was charged with and pleaded guilty to manslaughter by an unlawful act, it is perfectly understandable why no separate count averring that offence was laid.  Nevertheless, clearly the respondent’s conduct in the commission of the offence of manslaughter fell with them the acts proscribed by that section.  We are satisfied that it was an aggravating factor in the commission of the offence by the respondent.

37.In HKSAR v Cheung Tak Wa [18], this Court said that the use of a stupefying drug in the course of the commission of robbery was an aggravating factor.  That was so, because of the dangers attendant to the use of a stupefying drug, in that case chloroform:[19]

“ ...it is important to bear in mind that the risk to health and even life posed by the administration of chloroform to a person lies in the adverse consequences to the respiratory and cardiac systems of inhalation of chloroform. In the illicit administration of chloroform, commonly the assailant holds and presses a cloth soaked in chloroform over the victim’s mouth and nose until unconsciousness results.”

Of course, that is exactly the way in which the respondent rendered the deceased unconscious.

38.It is to be noted that the forensic pathologist had said of the use of thinner as a means of stupefying the deceased:[20]

“Toluene is a common ingredient of a thinner which is widely used in industry and in the home as an organic solvent...

Inhalation exposure may cause respiratory irritation, nausea, headache and dizziness.  Large exposure may cause systemic toxicity such as coma, seizure cardiac arrhythmia and cardiac arrest.”

39.The pathologist went on to conclude:[21]

“ Since the erythmatous and excoriated areas involved the nose and mouth, the towel could have blocked the nose and mouth causing cardiac arrest, hypoxic brain-damaged and/or aspiration of vomit due to smothering if these external respiratory orifices had been blocked completely for some minutes. The hypoxic brain-damaged and aspiration pneumonia could have been caused by inhalation of organic solvent, smothering due to blockage of the external respiration rate or offices or a combination of them.”

40.In HKSAR v Cheung Tak Wa the applicant had used chloroform in the course of robbing a prostitute in the premises in which she operated a one-person brothel.  The applicant pleaded guilty to counts of theft of chloroform, robbery and administering chloroform to the victim with intent to rob her.  The judge sentenced the applicant to 2 years and 8 months’, 8 years and 4 years’ imprisonment respectively, which sentences were ordered to be served concurrently.  In doing so, the judge had stipulated an overall starting point for sentence of 12 years’ imprisonment.

41.This Court noted that the manner in which the applicant had administered the chloroform was “utterly bizarre”, in that the applicant had blown the fumes of the chloroform towards his victim telling her that it would make her feel “higher”.  Then, he had splashed the chloroform on her inflicting on her the pain from the burning of the chemical on the skin.  In those particular circumstances, this Court determined that the appropriate overall starting point for sentence was 10 years’ imprisonment not, 12 years’ imprisonment.[22]

42.In HKSAR v Yip Chu Sum [23] this Court considered the weight to be given to the factor of “stress and fear” on the applicant in the circumstances of the commission of the offence.  In that case, the applicant pleaded guilty to attempted murder and was sentenced to 13 years’ imprisonment.  The judge stipulated a starting point for sentence of 20 years’ imprisonment.  This Court quashed the sentence and, stipulating a starting point of 16 years’ imprisonment, imposed a sentence of 10 years’ imprisonment.

43.The applicant attacked the victim when he was sitting in a taxi, hitting him over the head with a spanner. As the victim tried to escape from the attack, he pursued him continuing to hit his head until the victim fell unconscious to the ground.  The victim sustained no fractures, but suffered multiple lacerations, which were sutured.  He was discharged from hospital about a week after the attack.

44.The applicant was the driver of a taxi which he rented from the victim.  In addition, he borrowed money from the victim.  At the time of the offence he owed $45,000.  In sentencing the applicant, the judge said that he took into account the fact that “he was under some pressure at the time of the offence”.  That was a reference to the fact that the victim was pressing for repayment of the monies owed to him, making threats to his safety and that of his family.

45.This Court acknowledged that the attack was premeditated, in that the “applicant had planned to attack, and had armed himself to do so.”  On the other hand, the Court acknowledged that the applicant was:

“ a hard-working family man who was clearly under considerable stress, stress cause in the first instance by his own folly and gambling and running into debt but, on the facts put forward, and which were not contradicted, there was also considerable stress deliberately created and provocation offered by the complainant....in the present case stress and fear were real factors...there was evidence that he had cause to fear that the threats levelled against him were seriously intended.”

46.Nevertheless, this Court said:[24]

“ One has to take considerable care before according to stress and fear too much weight lest it be thought that it in any way justifies what was done, yet, in this case, its significance is that it explains why this applicant acted out of character. That he ought, despite the provocation and stress, not to have acted as he did, and take(n) the law into his own hands, speaks for itself...” [Italics added.]

47.The relevance of duress as a factor in mitigation of sentence to be imposed on any defendant was considered by the Court of Appeal of England and Wales in R v Taonis [25].  The applicant pleaded guilty to two counts of importing into the United Kingdom 47.5 kg of cannabis resin and 2.5 kg of liquid hashish.  However, it was accepted that he had done so in circumstances of duress.  He had been ‘set up’, so that it appeared that he had stolen £30,000.  When it appeared that he was prepared to defend that allegation, he was beaten up and tortured.  In face of threats that he and the woman with whom he lived would be treated in a similar fashion, the applicant had travelled to Beirut, from which he had returned to the United Kingdom with baggage containing the dangerous drugs given to him in Beirut.  In quashing the sentences of 4 years’ imprisonment, ordered to be served concurrently, imposed in respect of each count and substituting sentences of 2 years’ imprisonment, ordered to be served concurrently, Scarman LJ (as Lord Scarman was then) said in the judgment of the court “...the judge failed to give full or proper weight to the duress and threats to which this man was subject”.  Also, he said that the judge had failed to give sufficient weight to the applicant’s pleas of guilty and his cooperation with the authorities.

48.In sentencing this respondent, the judge said “the defendant clearly acted totally out of character.”  As noted earlier, of the immediate circumstances, which had led him to act as he had done, the judge said:[26]

“ It was the huge debts he owed and being hard pressed by debt collectors, particularly when he believed that the loan shark “Y” would harm his wife and son, should he fail to make repayment on that fateful date, then he stupidly adopted the scheme of rendering his mother-in-law unconscious so as to get her valuables to stave off the debt collector, and causing the death of his mother-in-law as a result.”

49.In stipulating a starting point for sentence of 4½ years’ imprisonment, the judge said that she had regard to “...all the circumstances of the commission of the present offence.”  She went on to find “There were no aggravating circumstances to enhance the starting point.” [27]

50.Earlier, the judge had cited passages from the description in the Summary of Facts of the respondent’s oral admissions to police officers at his home and subsequently in a video recorded interview.  She said that in the video record of interview the respondent had asserted that:

“...on 4 April at around 14:00 hours he received phone calls and was pressed by someone to repay that debt. The defendant felt under a lot of pressure and he asked the deceased for a loan.”

In fact, it is clear from the Summary of Facts that the respondent said that at 14:00 hours he had received but one phone call pressing for repayment.[28]

51.Although the judge cited the out-of-court accounts given by the respondent as to the sequence of steps he had taken which led to the commission of the offence, in sentencing the respondent she did not refer specifically to an element of premeditation as a factor in the commission of the offence.  On the respondent’s account, his attack on the deceased was not a ‘spur of the moment’ event, perhaps in frustration or anger at the deceased’s refusal to lend him the money, which he had requested.  Rather, it was something that he calculated over the course of about 40 minutes, so as to enable him to steal from the deceased.

52.Of that sequence of events, the judge noted that the respondent had said in his out‑of‑court statements that he made the request for the loan “...at about 14:00 hours that day” and that had led to “a quarrel between them.” [29]  Also, that the respondent had said:[30]

“ He told the domestic helper to leave the flat to give him time to think about whether to knock the deceased out to see if there were valuable items in the flat which he could use to make repayment. The domestic helper left the flat.”

53.Clearly, there was more to the respondent’s direction to the domestic helper to leave the flat.  In her absence from the flat, there was nobody to observe, intervene or call for help when the respondent attacked the deceased.

54.Of other steps that he had taken during the course of the quarrel, the judge noted that the respondent had said:[31]

“ The quarrel continued and he went to the balcony from his bedroom six to seven times, and each time he picked up a bottle of thinner and splashed the thinner onto a towel.

He finally took the thinner-splashed towel into the living room and placed it on a desk.  He continued to quarrel with the deceased.”

Finally, the respondent said that “...after thinking for about 6 to 7 minutes” [32] at about 14:40 hours he had attacked the deceased.

55.We are satisfied that there was an element of planning and premeditation by the respondent in the commission of the offence, albeit that those acts occurred in a period of only 40 minutes prior to the attack on the deceased.

56.Similarly, although she referred to the respondent’s out‑of‑court statements in respect of the manner of the attack on the deceased, the judge did not refer specifically to the fact that the attack was sustained and violent as a factor in aggravation of the commission of the offence.

57.Of the nature of his attack on the deceased, the judge summarised what the respondent had said in his out-of-court statements:[33]

“ At about 14:40 hours, when the deceased sat in front of a computer desk with her back to the defendant, the defendant picked up the towel, grabbed her neck from behind, and pressed the towel onto the deceased’s nose and mouth for about five minutes until she lost consciousness and fell to the floor.”

58.In his video recorded interview, the judge noted that the respondent added detail to that account:[34]

“ ...he went and knocked the deceased out by grabbing her arm from behind and covering her nose and mouth with the towel splashed with thinner. The deceased pushed him away and both fell to the floor. The defendant continued to cover the deceased’s mouth and nose with the towel. The deceased continued to struggle and then became motionless. The incident lasted about five minutes.”

59.We are satisfied that the sustained violent manner in which the respondent overcame the deceased as she resisted his attack, in which she continued to struggle even after they had fallen to the floor until she was rendered unconscious, was a factor in aggravation of the commission of the offence.

60.With respect to the judge, we are satisfied that she erred in stipulating a starting point for sentence of 4½ years’ imprisonment and imposing a sentence of 3 years’ imprisonment on the respondent. The sentence was unduly lenient.  While she was correct to state that “the conviction of manslaughter is very serious” in stipulating that starting point for sentence, the judge failed to reflect the culpability of the respondent.

61.This Court has said on a number of occasions that in cases of manslaughter it may not be possible to stipulate a starting point for sentence.[35] In The Queen v Lee Sau Ping the applicant was arraigned on a count of murder, but her plea of guilty to manslaughter by reason of diminished responsibility was accepted.  She was convicted of that offence and sentenced to 10 years’ imprisonment.  In sentencing the applicant, the judge did not stipulate a starting point or indicate what discount he afforded the applicant for her plea of guilty.  In refusing the application, in the judgment of the Court P. Chan J, as Chan NPJ was then, said:[36] 

“ This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide-ranging 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 decide on the appropriate sentence. In our view, the learned judge had properly done so in this case.”

62.In HKSAR v Cheung Hoi Ying the applicant was tried on a count of murder of which she was found not guilty, but she was found guilty of manslaughter by reason of provocation.  In sentencing the applicant to 13 years’ imprisonment, the judge stipulated a starting point of 15 years’ imprisonment.  Of the fact that the applicant had tendered a plea of guilty to the offence of manslaughter, and having noted that the plea was tendered on the basis of a suicide pact, a wholly different basis from that which she was convicted, the judge said “...it does not appear that that shows either serious remorse or a realistic view of what actually occurred.”[37]  Nevertheless, in the judgment of this Court, Stuart‑Moore VP said that whilst the fact of the tendering of a plea of guilty “carried some weight” it did not carry the same weight as if it had been entered on a “proper realistic basis.” [38]  Having, cited the passage from the judgment of P. Chan J in The Queen v Lee Sau Ping, cited earlier in this judgment, Stuart-Moore VP said that, although the judge had stipulated a starting point for sentence, she was in no sense bound to do so.[39] In quashing the sentence and imposing a sentence of 9 years’ imprisonment, this Court did so adopting the approach identified by P. Chan J.

63.In HKSAR v Wong Shui Mouk, the applicant was tried and acquitted of murder, but convicted of manslaughter by reason of an unlawful and dangerous act.  In the judgment of this Court, Stuart‑Moore VP noted that “the applicant, through his counsel, expressed the possibility of an offer of a plea of guilty to unlawful act manslaughter at the start of the trial which the prosecution had rejected, the applicant’s defence at trial was run on the basis of a combination of self-defence and accident.”[40]  In sentencing the applicant, the judge said:[41]

“ Apart from his clear record, the mitigation presented involves the plea that was offered initially to manslaughter. A deterrent element is necessary in sentencing so as to discourage other potential offenders from resorting to violence and from taking up weapons to solve what are, in essence, very minor disputes.

In manslaughter cases, it’s not always possible to set a starting-point to sentence and I do not take a starting-point in this case.  In imposing sentence, however, I do take into account the plea that was offered.  I sentence the defendant to 7 years’ imprisonment.”

64.Of the approach taken by the judge, Stuart-Moore VP, having cited the passage from the judgment of P. Chan J in The Queen v Lee Sau Ping, Stuart-Moore VP said:[42]

“ There are, we should add, sound and pragmatic reasons for a judge who is called upon to decide an appropriate level of sentence for manslaughter, after weighing in the balance the many factors in aggravation and in mitigation which are often present in such cases, to do so without first indicating a starting point. 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.”

65.In the instant case, on arraignment the respondent pleaded guilty to the count of manslaughter averred in the amended indictment.  This was not a case in which the judge had the difficult task of honouring the verdict of the jury, whilst at the same time identifying the factors of aggravation in the commission of the offence reflected by their verdict, before having regard to the factors of mitigation.  On the contrary, the judge herself had received evidence from the respondent and his wife and had made detailed determinations of the factual circumstances of the commission of the offence.  In those circumstances, it was entirely appropriate that the judge stipulated a starting point for sentence and that she went on to state the discount in sentence that she afforded the respondent for his plea of guilty.  One obvious merit of taking those steps is that it afforded complete transparency to the sentencing process.  We are satisfied that in this case it is appropriate that this Court stipulates both the starting point taken for sentence and the discount it affords to the respondent.

66.We are satisfied that, giving some weight to the factor of duress, the appropriate starting point to be taken for sentence should have been 10 years’ imprisonment.  Affording the respondent a discount of one‑third from that starting point, the sentence which ought to have been imposed on the respondent was 6 years and 8 months’ imprisonment.

Further discount in sentence

67.It is to be noted that, although the Chief Judge of the High Court granted leave to the Secretary for Justice to apply to this Court to review the sentence imposed on the respondent on 8 March 2016, the respondent was discharged from custody, having served his sentence, on 2 April 2016.  The delay, between 8 March and 16 December 2016, in this Court hearing the application is in large measure attributable to applications made by the respondent for proceedings to be adjourned, whilst he obtained legal representation.

68.It is to be noted that in the judgment of this Court in the Attorney General v Wong Kwok Wai, [43] Silke VP said that in a successful review of sentence generally this Court “...should impose the sentence that it thinks the trial judge should have imposed and without a discount.”  Nevertheless, he went on to say:[44]

“ A discount can, however, be properly considered in cases where the respondent is very close to the end of this sentence or where the sentence imposed by this Court is greatly in excess of the original sentence.”

69.In the judgment of this Court in the Secretary for Justice v Tseung Mang Ka, Stuart Moore CJHC (Ag.) said:[45]

“ When a downward adjustment is made, which is not on every review, it is usually only a token one to take into account the element of double jeopardy to which the prisoner has been subjected. ...

The token downward adjustment nowadays usually only applies where there has been a substantial increase in the sentence originally imposed or where the prisoner either has been or is about to be released.”

70.In the result, given that the respondent has already been discharged, having served the sentence of imprisonment imposed on him and having regard to the substantial increase in sentence, we are satisfied that the respondent is entitled to a further discount of 6 months’ imprisonment.

Conclusion

71.Accordingly, we allow the application for review of sentence and quash the sentence of 3 years’ imprisonment imposed on the respondent.  In its place, we substitute a sentence of 6 years and 2 months’ imprisonment.

Ms Anna Y K Lai, SC, DDPP (Ag.), of the Department of Justice, for the applicant

Mr Joseph Tse, SC and Mr Wilson Tam, instructed by L & L Lawyers, for the respondent