HKSAR v. Wong Yuet Ming

HCCC 302/2017

[2018] HKCFI 2230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 302 OF 2017

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

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COURT:

The defendant, Mr WONG Yuet-ming, faces one count of murder contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Chapter 212. The particulars of offence are that the defendant on the 22nd day of December, 2016, at ground floor, Lung Wai House, Lower Wong Tai Sin Estate, Kowloon, in Hong Kong, murdered SAN Kai-chung. He pleads guilty to manslaughter, but it is not accepted by the prosecution. He is convicted of manslaughter by reason of provocation by a jury after trial.

Evidence during trial

On 22 December 2016, at about 7 pm, the defendant returned to Lung Wai House, Lower Wong Tai Sin Estate, where he lived on the 22nd floor, after walking his dog. He entered the lift and was followed by the deceased, Mr SAN Kai-chung. A row developed between the two of them and the deceased who had not yet gone inside the lift retreated, chased by the defendant who attacked him. The two of them struggled together and the security guard stationed there tried to stop them, but in vain.

During the scuffle, the front mid-neck of the deceased was stabbed with a knife, penetrating the underlying tissue including the strap muscles and isthmus of the thyroid gland and entering the windpipe to a depth of 6 centimetres. It caused massive bleeding into the lumen and there was aspiration of blood into the airway resulting in an acute respiratory dysfunction and subsequent asphyxia, being the cause of death of the deceased.

The defendant left the scene and went to a friend's place where he borrowed $300 and changed into clothes lent to him by his friend. The defendant then left the place of his friend. He surrendered to Wong Tai Sin Police Station the next day where he was arrested and cautioned by a police officer for the offence of murder. He remained silent under caution.

The deceased was notorious for asking the residents, including the security guard of Lung Wai House, for money in the lobby of the building. He was a drug addict and had a poor relationship with his family who lives on the 13th floor of Lung Wai House. He occasionally slept at the staircase of the floor on which his family live and for most of the time he slept in the park outside Lung Wai House. He was also seen by the security guard stationed at Lung Wai House murmuring to himself that he was going to kill somebody.

The defendant gives evidence during the trial. He says that he suffered a stroke in 2002 and has since been walking with a noticeable limp. He cannot work and relies on CSSA for a living. In October or November 2016, he came across the deceased who was sweating and moving his head side to side. The deceased looked like he was getting high. The defendant jumped aside to avoid the deceased bumping into him. He was scolded by the deceased in foul language. Since then, the deceased swore at him whenever they met, calling him "Damn limper" and threatened to beat him up. The defendant always swore back at the deceased. On an occasion, the deceased even produced a knife to threaten the defendant and threw bottles at the defendant. The defendant felt upset and angry.

On the day in question, the defendant returned to Lung Wai House after walking his dog and met the deceased on the way. The deceased looked hostile and aggressive. After the defendant had entered the lift of Lung Wai House intending to go home on 22nd floor, the deceased followed and blocked the lift door. The deceased swore at the defendant calling him "Damn limper" and "Damn rubbish" and threatened to beat up the defendant. The defendant swore back. The deceased did a gesture to beat up the defendant by holding both hands in fists. The defendant was scared and lost control. He took out a fruit knife which he always took along for peeling and cutting fruit when he walked the dog. He used the knife to scare the deceased and the deceased retreated. The defendant chased after him and hit him with a fist. They fought against and scolded each other. The defendant stabbed the deceased in the neck with the fruit knife which was then dropped on the floor with the handle detached and taken away by the defendant.

The defendant left the scene and, as pointed out above, he borrowed $300 and clothes from a friend to get changed. He turned himself in to the Wong Tai Sing Police Station the next day and he was arrested and cautioned for the defence of murder. The defendant says that he did not have any intention to kill the deceased or cause him grievous bodily harm. He lost control and he stabbed the deceased through carelessness.

Criminal record

The defendant has 36 previous convictions, not similar to the offence in the present case. He was last convicted of possession of a dangerous drug on 30 July 2001 for which he was sentenced to 14 days imprisonment with a suspended sentence of 6 months imprisonment activated and to run consecutively.

Mitigation

The defendant is aged 55, married and has a daughter aged 15. He suffered a stroke in 2002 and as a result walks with a noticeable limp. He cannot work and relies on CSSA. Counsel for the defendant points out that there are no sentencing tariffs for the offence of manslaughter by reason of provocation, although, the sentences range from 5 years up to 10 years imprisonment.

The defendant had been subject to verbal provocation of the deceased since October 2016 and that took place on about 12 occasions. The deceased was the instigator of the incident on 22 December 2016, although the defendant pursued and attacked him when he retreated. The counsel for the defendant emphasises that there was only one single stab wound to the deceased, signifying that it was not a frenzied attack.

The defence counsel cites the cases of HKSAR v Wong Kam Shing Jackie CACC 197/2009, HKSAR v Reynaldo [2003] HKLRD 688 and HKSAR v Sin Kwai Ching CACC 176/2004 for the reference of the court. The defence counsel asks the court to be lenient to the defendant.

Sentence

As rightly pointed out by the counsel for the defendant, there are no sentencing guidelines for the offence of manslaughter by reason of provocation. This is understandable as the circumstances under which this offence is committed can vary substantially in different cases, so do the sentences. The court, therefore, has to look at the facts of each case to decide the appropriate sentence to be imposed. While the sentences in similar cases can serve as reference to the court, the sentence for each individual case has to be determined according to its facts.

The provocation which the defendant was subjected to in this case was no doubt the repeated humiliating and taunting remarks and the threats made against him by the deceased. The defendant could have handled what the deceased did to him in a more sensible manner. He could have reported the case to the police, particularly when the deceased produced a knife to threaten him. If he had done that, the chances are the tragedy in the present case could have been avoided.

The authorities cited by the counsel for the defendant do not establish any sentencing tariffs, but as pointed out above, serve as reference to the court. In the case of Reynaldo, the appellant was convicted of manslaughter for killing his girlfriend after his girlfriend belittled his sexual power and comparing it unfavourably with another man. The girlfriend also kicked at the private parts of the appellant when the appellant grabbed her shoulder. The Court of Appeal considered that a starting point of 6 years imprisonment is appropriate.

In the case of Sin Kwai Ching, the appellant was charged with murder and his plea of manslaughter by reason of provocation was not accepted by the prosecution. The appellant killed the deceased because of the provocation of the deceased about his crippled leg. He was convicted of manslaughter by reason of provocation by a jury after trial. He was sentenced to 10 years imprisonment which was approved by the Court of Appeal.

In the case of Wong Kam Shing Jackie, the appellant incurred heavy debts at a usurious rate of interest because of gambling. He killed the deceased who was responsible for pressing him for repayment. This person had on a number of occasions harassed the appellant with, inter alia, menaces aimed at the family of the appellant. The deceased also demanded 'tea money' of up to $2,000 from the appellant for granting extension of time to the appellant for the repayment of the debts. The appellant was charged with murder and his plea to manslaughter by reason of provocation was not accepted by the prosecution. After trial, he was convicted of the lesser offence. The Court of Appeal considered that a term of 5 years imprisonment was appropriate.

It is not always easy to compare the culpability of the defendants in different cases of manslaughter by reason of provocation because no two cases would have facts which are similar on all fours. The court is of the view that the culpability of the defendant in the present case is quite similar to that of the appellant in the authority of Sin Kwai Ching, although there was no evidence in the authority that there had been past provocative behaviour of the deceased towards the appellant before the incident in which the deceased was killed.

The court is of the view that the provocation in the present case was not of a particularly great scale and was confined largely to oral humiliating remarks and threats which, as pointed out above, could have been resolved in a peaceful manner. The reaction of the defendant to the provocation was out of proportion to the degree of the provocation.

Although, the defendant has a number of previous convictions, none of them was connected with violence and the last conviction took place in 2001. The court, therefore, will not enhance the sentence because of his criminal record.

Having considered the abovementioned authorities and other cases of similar nature, the court is of the view that a term of 8 years imprisonment can truly reflect the culpability of the defendant and the court so sentences the defendant.