HKSAR v. Liu Qing Chao

HCCC 177/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 177 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 indicated that he would plead guilty to this charge at the pre-trial review and so on 16 August this year he pleaded guilty to manslaughter, and the facts of the case were that on the day of the incident, 10 July 2015, the defendant and his friend, who was the 2nd defendant, had been sitting in Ping Kee store since about noon, drinking. They had consumed around 10 bottles of beer during that afternoon. It was a social occasion for both of them, and the deceased arrived outside the store at about 5 pm.

The deceased and his relatives sat at a table which was opposite to the table of the defendant. It is not in dispute that the deceased, having recently lost his son in a traffic accident on the Mainland, was terribly distraught and emotional, and was ranting and raving when he was with his relatives at the Ping Kee store.

At one stage, the deceased actually rolled around on the floor and banged his head against the ground. The relatives who were with the deceased then called his wife to come to the scene to try and calm her husband. By that time, the store had closed, but leaving these two tables of people still outside the store.

The defendant approached the deceased’s group and said to them in Mandarin to stop making so much noise. At that time, the first prosecution witness, who was the nephew of the deceased, apologised and explained that the deceased had just lost his son. The defendant, upon hearing this, then returned to his table.

However, the deceased was inconsolable and was still very emotional and distraught. At that stage, the defendant, who had been drinking all afternoon himself, shouted loudly again, complaining about the noise the deceased was making and said something to the effect that his son’s death had probably been the fault of the deceased.

Unfortunately, these words provoked the deceased and he grabbed a chair and rushed towards both defendants. The three of them then subsequently got into a fight with each other, throwing punches at each other, and some of those punches were aimed at the head. Chairs were also picked up and thrown around during the fight and the scene was quite chaotic.

The deceased at one stage then lost his balance when pushed by both the defendant and his friend and fell onto the floor, and after the defendant’s friend was seen to whisper some words to him the defendant and his friend then rushed towards the deceased and started kicking the deceased on his legs.

At that exchange, the nephew of the deceased intervened to stop them and the defendant then picked up an empty glass beer bottle and smashed it on the deceased’s head twice. Then, the nephew of the deceased shouted to the defendant to stop what he was doing and then the nephew moved away from Ping Kee store to make a call to the police.

The other relative of the deceased who was present at the scene was someone called “Sai B(?)”, who during this time had gone to the toilet. When Sai B returned to the Ping Kee store, he noticed that there was blood on the defendant’s face and, according to Sai B, the deceased was still sitting near the entrance of the store with his head down.

Then, according to the facts which had been admitted by the defendant, the defendant and his friend had exchanged a few words and subsequent to that the defendant’s friend then walked towards Sai B with a glass beer bottle in his hand. Sai B picked up a chair to shield himself and then he saw the friend of the defendant using the empty beer bottle and swung the bottle at the deceased’s head three times, and at that stage the deceased collapsed on the floor.

The ambulance crew and the police arrived and initially only the defendant and the deceased were arrested for fighting in a public place.

The deceased was sent to hospital and it was noted that the deceased himself smelt of alcohol, had a strong smell of alcohol on him, and initial assessment showed that he was in a confused state and when CT brain scans became available it was seen that the deceased had a fractured skull and cerebral contusion, haemorrhage and haematoma, and also that he was suffering from intracranial bleeding with a depressed skull fracture.

The deceased was admitted to the ICU section of the Prince of Wales Hospital. His condition deteriorated and finally on 12 July 2015 he succumbed to his injuries and died.

The defendant, in his video recorded interview, confirmed that he and his friend had been drinking beer since about 1 pm on the day of the incident, that he was drunk. He said he did not notice how the fight started, but he did remember that the deceased did hit him on his head, but he could not remember how many times. He denied that he had hit the deceased on the head with a bottle.

The defendant was identified at an identification parade by the nephew of the deceased as the person wearing a black T-shirt and had hit the deceased on the head twice with a beer bottle.

The autopsy report confirmed that the deceased had died from traumatic head injuries and the pathologist opined that the bruising observed could have been inflicted by a blunt object hitting on or against the affected areas of the head, and the medical notes indicated that the head had suffered from significant blunt force injuries with substantial force, leading to scalp bruising, skull fracture, intracranial haemorrhage and brain contusions.

The pathologist’s opinion was that the fatal injuries could have been caused by punches on the head during the fight and/or punches on the head by throwing chairs and/or direct hits on the head by bottle by the defendant and/or direct hits on the head by bottle by the friend of the defendant, or a combination of any of these actions.

The pathologist confirmed also that the act of the deceased hitting his forehead on the ground did not significantly contribute to his own death.

Now, the defendant himself, his background was that, as Mr Chiu said, of a hardworking man. He has a clear record in Hong Kong. He is aged 49. The defendant came to Hong Kong in 2012 and he has a younger brother in Hong Kong. He did not have much education so he worked as a car cleaner.

Mr Chiu also noted that the defendant’s family is in the Mainland and he worked in Hong Kong in order to send money back for their living expenses and his only bad habit really is drinking on social occasions when he meets his clansmen. Although he liked drinking, he had never been in any fights or committed any violence until now.

This is a most unfortunate incident, as I can see, with both parties having drunk alcohol. The deceased had drunk alcohol so much so that his breath was noted to have a strong smell of alcohol, and the defendant and his friend had been drinking since noon that afternoon.

Although it is not a defence, being drunk or intoxicated, however I can see that it is a contributing factor to what happened that afternoon. Perhaps, had both parties, both sides not been drinking, then things would not have been exacerbated so quickly and turned into violence, leading to the death of one party.

There is no doubt that the initial fight was initiated by the deceased having heard the provocative words said by the defendant. The deceased actually went over to the table where the defendant and his friend were sitting. They fought, they punched each other, they threw chairs at each other, and things very quickly deteriorated, leading to the time when the defendant lifted up the glass bottle to hit the deceased on the head.

The defendant also suffered some injuries to his face. He had laceration and abrasions over his forehead and face and had to be treated but was discharged on the same day.

I agree with Mr Chiu there was no pre-meditation that day. There was no advance planning. It all happened on the spur of the moment, with the parties losing control. I do accept that the defendant is remorseful and that, according to his letter to the court, he sincerely wants to be punished for what happened.

The fact is, the tragic result was that, as Mr Chiu noted, the wife of the deceased not only lost her step-son, but also lost her husband. It is a tragedy overall.

There is no sentencing guidelines in manslaughter cases. Sentencing varies in different circumstances. I have considered the background of this case. I have considered the defendant’s background and that this is his first offence and his first imprisonment at the age of 49.

So, having considered all this, I would consider an appropriate starting point in the case would be one of 7½ years’ imprisonment.

As I said, I accept the remorse of the defendant and I will give him the full one-third discount in this case, so he goes to prison for 5 years.