HKSAR v. Leung Yuk Ping

HCCC 297/2017

[2018] HKCFI 1519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 297 OF 2017

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

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COURT:

Defendant, you are charged with murder. The jury convicted you of manslaughter, by reason of provocation.

On 8 October 2016, at your residence in Tai Po, you killed the deceased by stabbing him with a knife once in his chest. The stab wound injured the deceased’s heart, causing massive blood loss which caused his death. The stab was just below the left nipple and penetrated to a depth of about 6 centimetres.

The deceased was a friend of yours aged 22 years old. In the present case, at the outset, your defence was that this was an accident. You never stabbed the deceased, but the deceased himself projected himself onto the knife, which you were holding at the time and threatening him with it.

The evidence of the incident came from your alone, in your video-recorded interview to the police and at the trial. There were no witnesses to this killing. There was no violence and no struggle.

The deceased had gone up to your residence, which was a room, and annoyed you whilst you were trying to sleep. The deceased kept asking you to assist him to go and borrow money, despite your refusal to assist him. The conduct of the deceased was mere words spoken by him, asking for your assistance. There were no insulting words as to your character, or any demeaning words. You, in fact, had accused him of stealing your money, which he denied. There was some foul language used. You then picked up the knife, you say to just threaten him, to shut him up.

The jury accepted the prosecution case that you had not only picked up the knife, but that you used this knife and stabbed the deceased with it. The majority of the jury accepted that you were provoked at that time.

In my sentence, I base it upon the fact that you were provoked. The period of provocation was for a very short time of some two to three minutes. You reacted to his words by picking up a knife and stabbing him once in his chest. The degree of provocation was on a very small scale. This was a disproportionate reaction by you in taking a knife and stabbing him with it.

As was said at paragraph 30 in HKSAR v Yau Kit Keung [2010] 6 HKC 473 at paragraph 30, the Court of Appeal stated:

“It is trite to say that when provocation reduces what would otherwise be murder to manslaughter, it does not thereby render the moral culpability of the perpetrator the same in and every case. A sustained and deadly attack in reaction to the provocation that, in the balance of things, is found to be minimal, depending on all the circumstances will no doubt be considered of graver moral culpability than a single blow from a fist in answer to provocation of a greater degree.”

You are 42 years of age. You have 17 previous convictions, mostly related to dangerous drugs. You were sent to Siu Lam Psychiatric Centre on three separate occasions in 2010, 14 and 15. After your conviction by the jury, I called for two psychiatric reports. They have concluded that you are not suffering from any mental illness.

One of the doctors, Dr Chan, says that you have a history of psychosis and methamphetamine abuse. Your current mental state is stable and in a drug-free environment. You do not require psychiatric in-patient treatment. You should continue visiting the outpatient clinic for further monitoring and advice.

The other psychiatric report, written by Dr Lui states that you are mentally stable, free from symptoms and do not require medication, however still advises you to attend the Psychiatric Substance Abuse Clinic, where you were attending at the North District Hospital.

The previous convictions in respect of criminal intimidation and possession of an offensive weapon and criminal damage in 2014 and 15, you were sent to the Siu Lam Psychiatric Centre.

I have had from the prosecution the allegations of the facts in those cases, whereby for the criminal damage, you had gone to a game centre with CCTV installed. Suddenly you spoke nonsense, picked up the chairs and smashed game machines.

For the criminal intimidation, after that you left the game centre for 10 minutes and returned with four bottles of industrial fluid, alcohol. You told the cashier you would burn down the game centre. You then took out a lighter, threw it on the ground to crush it.

As for the possession of offensive weapon, with which you were convicted in 2015, a knife found wrapped in newspaper was found inside your plastic bag. The knife was a knife of 34 centimetres in length and a blade of 22 centimetres with a handle of 12 centimetres.

MR KHOSA: I do apologise, my Lady. I think in item 16, that knife was not proceeded with. The knife event at the AGC, but it’s the next case, the last page, that’s a separate incident where during a stop and search...

COURT: I see.

MR KHOSA: So, item 17. So for some reason, the possession of the knife in the AGC was not proceeded with.

COURT: I withdraw that then.

In any event, I withdraw that, but you were convicted of possession of offensive weapon, which was a knife.

I, of course, accept that your sentence was to Siu Lam Psychiatric Centre as it does appear you were suffering from some mental illness. However, looking at your past and previous criminal convictions, you appear to have a tendency to resort to knives when you are agitated or annoyed or to carry that with you. This is, in my view, a danger to the public and society as a whole.

Clearly, this is what you did on this occasion. You took out a knife to react to the provoking words said by the deceased.

You were charged with murder and pleaded not guilty. You had not entered a formal plea of guilty to manslaughter upon your arraignment. At the outset of this case, however, your counsel informed this court that you had offered to plead guilty to manslaughter, however the prosecution had refused your offer.

Upon his advice, and on the defence as was run, that this was an accident, it was open to the jury to find you not guilty of both manslaughter and murder.

As stated in HKSAR v Yau Kit Keung, the law in regard to discounts is now well settled. A defendant who faces a murder charge can fight the case on the basis that he is not guilty of murder but guilty of manslaughter. Or he can fight the case on the basis that he is not guilty of any homicide. There is a considerable difference between these two courses.

If the defendant is convicted of manslaughter, after pursuing the first course, an appropriate credit is given. But if he is convicted of manslaughter having pleaded not guilty to any form of homicide, then depending on the circumstances, it is open to the judge to determine whether any form of discount is warranted. The defendant falls within the second scenario, that he pleaded not guilty to any form of homicide.

I do accept, however, that the defendant had all along, despite his defence, had indicated to the prosecution that he was willing to plead guilty to manslaughter. I therefore consider that a discount is warranted.

In this case, defendant, you had used a small sharp knife to inflict the stabbing at a very vulnerable area of the deceased’s body, that is, near his heart.

Clearly the jury accepted the existence of an intention to kill or at least cause grievous bodily harm to the deceased. But because of the provocation, they convicted you of manslaughter. It cannot be ignored that there was the loss of a very young life.

Given the facts of this case, an appropriate starting point is one of 8 years’ imprisonment. Credit is to be given to you for your offer to plead guilty to manslaughter, and that term shall be reduced to one of 6 years and 9 months’ imprisonment, to which you shall be so sentenced.