HKSAR v. Wong Kok Man

HCCC 94/2018

[2019] HKCFI 223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 94 OF 2018

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

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COURT:

The defendant, Wong Kok-man, was charged with murder, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Chapter 212. He pleaded not guilty to the charge but guilty to the lesser offence of manslaughter on the basis of diminished responsibility. His plea was accepted by the prosecution and he was duly convicted of manslaughter after he admitted to the Summary of Facts. So now, I will recite the Summary of Facts.

The deceased, Lem Mae-kim, was the wife of the defendant. She was 76 at the time of her death. The defendant was 80 years old when he killed his wife. The defendant and the deceased, I use the term very loosely, “married” in 1980 although they did not go through a proper marriage ceremony of some kind. They had a son, but their son committed suicide in 2007. The deceased suffered from a stroke in 2015 and other illnesses including hypertension, rheumatoid arthritis and hypothyroidism. She was admitted to a home for the elderly at first but she moved back home to live with the defendant later. The defendant had been the deceased’s primary carer since then.

On 6 June 2017, the defendant called the emergency service, asking for a hearse to take his wife away as he had strangled her. He told the operator that he killed his wife out of mercy as she had been suffering from various illnesses. Firemen and ambulancemen arrived at the address provided by the defendant and the deceased was found lying in bed unconscious. She was certified dead.

The defendant was arrested and under caution, he said he had killed his wife as she had chronic illnesses. He was willing to bear the legal consequences. The police found a bamboo stick and three notes written by the defendant: one to the Housing Authority to dispose of properties in the flat and two to the police, giving them the power to deal with his corpse.

The defendant attended a video-recorded interview. He gave particulars of his family background and circumstances of the killing. The deceased suffered from a stroke and was paralysed on her right side. She lost her mobility and her sense of taste. She suffered from falls and was in pain. She had also lost her eyesight so she could no longer watch television with the defendant. The defendant started to worry about dying before his wife and fear that she would be starved to death. The defendant became more and more concerned when his own health started to deteriorate. He thought of ending his wife’s life many times but did not have the courage to do it. While the deceased never told the defendant that she wanted to die, she repeatedly remarked on her pain and immobility, saying that she was sick and tired of her life.

On the night prior to the killing, the deceased again told the defendant how dissatisfied she was with her life. After the defendant cooked for her, she asked him why she had to eat when she could taste nothing. At around 5 am on 6 June 2017, when the defendant woke up, he saw his wife lying face up, exposing her neck. He took a bamboo stick which he used to scratch his back and pressed it against his wife’s neck for about 30 minutes. There was no struggle from his wife. He stopped when he felt tired and he could feel no heartbeat from his wife.

The defendant then washed his face, did some housework and he went out for a walk and had breakfast before returning home to make a report. He felt that he had to bear the responsibility for killing his wife. Defendant could not recall when he wrote those notes. At first he thought of ending his own life. He eventually did not kill himself as he wanted to give an account to what had happened so that he could take the responsibility for his action.

Post-mortem examination reveal the cause of death of the deceased was pressure on the neck. There was a prolonged, unremitting and substantial amount of pressure applied onto the deceased’s neck for a period of time. The presence of prominent asphyxia signs on the deceased with injuries and bamboo fragment found on her neck were in keeping with the description provided by the defendant to the police.

The defendant was examined by three psychiatrists: Dr Cheung Hung-kin, Dr Kavin Chow and Dr Oliver Chan. All three psychiatrists were of the view that at the time of the killing, the defendant suffered from Major Depressive Disorder which substantially impaired his judgment and his ability to control over his actions. The defendant admitted that he caused the death of his wife, the deceased, and he pleaded guilty to manslaughter on the basis of diminished responsibility.

Now the background of the defendant. The defendant is now 81 years old. He was born in Macau and he lost his mother when he was 12. Educationwise, he did not finish primary education as he was required to work to help support the family. He joined the China Motor Bus Company as a technician until the business was closed down. He then joined the New World First Bus and worked until he retired in 1963.

The defendant is not a man without any previous convictions; he had two previous. The first was a conviction of wounding, section 19 in 1982 for which he was given a 3 months’ imprisonment suspended for 18 months and was ordered to pay costs of $1,000. The second one was fighting in a public place in 1988 and he was fined $500. Judging from the sentence imposed, the offences were not too serious. Moreover, the offences were committed 30 years and more ago.

The deceased was the defendant’s second wife. He and the deceased only had one son. The son suffered from Crohn’s disease and tragically killed himself when he was 23 or 24 years of age. At that time, the defendant was already a 70‑year-old man. Then in 2015, the deceased suffered from a stroke and together with other illnesses, she became dependent on the defendant who acted as her primary carer.

The physical condition of the deceased worsened while the defendant’s own physical condition also deteriorated. Defendant began to worry about his wife and their future. All three psychiatrists were of the view that the defendant suffered from Major Depressive Disorder which substantially impaired his judgment and his ability control over his actions. It was under such circumstances that he killed his wife as an act of mercy. He planned initially to kill himself after killing his wife; hence, the three notes he wrote regarding disposal of the belongings and his body. He then changed his mind as he wanted to shoulder the responsibility.

Now, the mitigation. First of all, the defendant and his siblings have written to me, asking for leniency. The defendant basically repeated what he had already told the various psychiatrists, namely that he killed his wife as an act of mercy to end her sufferings. The defendant’s siblings tender their apologies for having failed to take care of the defendant. They promise to this court that they will look after the defendant from now on.

Mr John McNamara, counsel for the defendant, submitted that this case was a tragedy. A loving and caring husband killed his wife when suffering from Major Depressive Disorder with no underlying animosity or any problem with alcohol or drugs. Although the defendant is no longer suffering from the mental disorder, two psychiatrists suggested the defendant to have outpatient consultation. So your counsel urged me to consider imposing a probation order on you so that with the assistance of a probation officer, possibly a welfare officer and the defendant’s siblings, the defendant could then have help when he is released. I acceded to the request and adjourned the case to today for a PO report.

Now, the PO report. The probation officer, Mr Roger Laine, gave a very detailed report on the background, not just on the defendant but also on the deceased and their departed son as well. Most of the information supplied in the report are already known to me. I did not know, however, that the defendant’s son was also diagnosed with CA colon which stands for carcinoma colon, a form of cancer, before he jumped to his death. I also did not know that the defendant and his late wife had kept their departed son’s room intact, even though the son had committed suicide in 2007.

According to Mr Laine, both the defendant and his siblings have told him - that is Mr Laine - that the deceased had mentioned her desire to end her life to them. Mr Laine formed the view that the defendant’s killing of his wife was a case of “assisted suicide”.

According to the facts admitted by the defendant, the deceased had never indicated to him that she wanted to die. Nevertheless, the deceased’s repeated remarks on her pain and immobility, saying that she was sick and tired of her life, could be interpreted as her wish to end her life. So I do not think it is proper to treat this case as one of “assisted suicide”.

The defendant’s loving care for his late wife was borne out by comments from their neighbours and also one of the security guards contacted by Mr Laine. Mr Laine informed me that the defendant’s siblings had reclaimed the defendant’s public housing unit and had the place cleaned up in anticipation of the defendant’s return. The defendant’s siblings and the Housing Officer are supportive of the defendant’s home restoration. Should the defendant have any adjustment problems, he could seek assistance from the social welfare system. Mr Laine is of the view that probation supervision is redundant for the time being.

Section 7 of the Offences against the Person Ordinance, Chapter 212 provides:

“Any person who is convicted of manslaughter shall be liable to imprisonment for life and to pay such fine as the court may award.”

There are no guideline tariffs for manslaughter cases as they varied significantly in their circumstances. Sentences in other manslaughter cases are seldom of much utility as in the case HKSAR v Chiu Wai Kan Vicken (No 2) [2011] 5 HKLRD 422.

This is indeed a tragic case. The defendant and his wife lost their only son when their son was only in his early twenties and the defendant was already 70 years of age. The defendant did not have anyone to share the responsibility of taking care of his wife. This was the case of one aged person taking care of another aged person. One can imagine the hardship faced by both: for the wife, the pain and suffering and the indignity of having to rely on her husband to help her in almost all aspects of daily life; for the husband, the physical difficulty of taking care of the wife and the mental anguish in watching her suffer. As the defendant was suffering from Major Depressive Disorder which substantially impaired his judgment and his ability to control his actions, he felt that killing his wife was an act of mercy, the only way available to help her and her suffering.

The defendant had taken the life of another human being which of course is a very serious matter. Having considered all the circumstances of this tragic case, I am of the view that this Court can temper justice with mercy when considering the appropriate sentence. The fact that this defendant is already of advanced age and that he is no longer suffering from any mental illness suggest that he does not pose any danger to the society. As there is no recommendation for the defendant to be placed on probation supervision, there is no other sentencing option but one of imprisonment. In my view, public interest does not demand the defendant’s detention for a long period of time. The defendant has been in custody since the offence that is 6 June 2017. That means he has been in custody for 18 months. I will pass a sentence which will enable him to be released immediately.

So for the offence of manslaughter, the defendant is sentenced to 2 years’ imprisonment.