HKSAR v. Lee Sau Kwan

HCCC 52/2018

[2019] HKCFI 1753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 52 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

Background and the Killing

The defendant stood trial for one count of murder and he raised the issue of self-defence. Given the evidence adduced before the jury, I directed them to consider not only the issue of self-defence but also that of provocation although the latter was objected to by the defence. In the end, the jury returned a verdict of not guilty of murder but guilty of manslaughter by reason of provocation, clearly rejecting the defendant’s claim of self-defence.

In this case, there was not much dispute that the defendant and the deceased had known each other for a long time and that they did not get along. There was also the matter about loans between the two with the defendant claiming that the deceased had borrowed money from him a long time ago. On the other hand, Madam Peng, the first prosecution witness, testified that she heard the deceased asking the defendant for the return of money shortly before the stabbing.

Moreover, according to the defendant, the deceased bore grudges against him as the deceased considered that the defendant had badmouthed him by talking about the deceased’s previous stealing act. All these set the scene about the general relationship between the deceased and the defendant as the jury had heard.

Insofar as the defendant’s condition is concerned, it is not disputed that the defendant had been suffering from mental illness and was, at the time of the incident, taking medicine and attending regular follow-up treatment. At trial, the prosecution did not challenge the evidence that the deceased was in the habit of teasing and verbally abusing the defendant which included taunting the defendant about his mental illness. Such evidence did not only come from the defendant’s video-recorded interview but also from Mr Lam, a prosecution witness.

Further, it was not challenged that, in the past, whenever the defendant was subject to verbal abuse by the deceased, the defendant’s reaction was to simply ignore the deceased and pay no attention to such abusive behaviour on the part of the deceased.

Both parties agreed that, on the day in question, the deceased had drunk a lot and when he was in the premises where the defendant was, the deceased again verbally abused the defendant to the extent that the deceased had to be pulled away by the others present. According to Mr Lam, the deceased was taken down to the street and had a taxi hailed for his return to home. However, unbeknownst to anyone, the deceased made his way back to the premises.

According to the defendant, he was then lying on his bed in his bedroom at that time. The deceased, however, kicked open his room door and said words to the effect that he would bash the defendant to death. The deceased, according to both the defendant and Madam Peng who witnessed that scene, was holding a wine bottle in his hand and was raising it above his head. Madam Peng then heard the defendant saying roughly that if the deceased wanted a fight, the defendant would fight with him.

According to the defendant’s own admission, he then pushed the deceased out of his room, grabbed a folding knife from the kitchen and stabbed the deceased in his chest a few times until the deceased fell onto the ground. Afterwards, the defendant went to the kitchen to wash his hands and the knife, walked back to his bedroom, had his dinner, got changed and waited there for the police arrival as he knew that Madam Peng had called the police.

When the defendant was questioned by the police, he frankly admitted that he had stabbed the deceased but made the utterance that the deceased was annoying as the deceased kept asking him for money which utterance the defendant later corrected during the scene-reconstruction video.

The Defendant’s Background and Mitigation

The defendant is now aged 65 and is divorced. He was born in the mainland and received education up to Primary 6 there. At the time of the offence, he was living alone in one of the rooms in the premises and was responsible for looking after the mahjong room where the deceased and others used to frequent.

The defendant arrived in Hong Kong illegally in 1979. Thereafter, he managed to obtain a Hong Kong identity card and had worked as a construction site worker; a technician in a watch factory; a security guard; and a cleaner. He stopped working in 2006 as he said that he was then suffering from depression. Afterwards, the defendant lived on social security.

The defendant has got a total of 19 criminal convictions, including four assault-occasioning-actual-bodily-harm convictions and one of possession of offensive weapon in a public place. In addition, three were theft offences and the others were mostly unlawful possession of dutiable goods. In the past, he had been sentenced to Siu Lam Psychiatric Centre and the longest imprisonment term imposed on him was one of 4 months, the sentence of which was passed in December 2009 and which was also his most recent detention prior to the commission of this offence.

In the psychiatrist’s report which I called for, it was revealed that the defendant had an episode of mental illness in the mainland when he was 20 years old. After he had come to Hong Kong, he was sent to the Castle Peak Hospital in 1984 for hearing voices and he was last treated in Kwai Chung Hospital in 1997 for unstable mood and incoherent speech. He was diagnosed to have been suffering from schizophrenia and was put on antipsychotic injections. Since then, the defendant attended outpatient care for regular injections and his mental condition was noted to be settled in the past few years. He gave no history of abuse of drugs and alcohol.

As to the defendant’s behaviour while admitted in Siu Lam Psychiatric Centre, it was reported that he followed routines and caused no trouble.

In mitigation, Mr Surman for the defendant emphasized that it was the deceased who returned and barged into the defendant’s room with a wine bottle in his hand, saying that he would bash the defendant to death. The defendant was, at the time, lying on his bed and doing nothing wrong. Mr Surman also submitted that the defendant was co-operative during the police investigation and that from his own dealings with the defendant, it is clear that the defendant is remorseful and the taking of a life would remain on the defendant’s conscience.

Sentencing Considerations and the Sentence

Clearly, given the very different circumstances under which a killing by reason of provocation could take place, there are no tariffs for this offence. In R v Wong Kwai Chuen, CACC 605/1994, 24 May 1995 unreported, where the defendant who suffered from Post-Traumatic Stress Disorder was provoked to kill the woman with whom he was associating over the woman’s beating of her own children, the Court of Appeal made this observation at paragraph 7 of the judgment:

“As has been said often before, it is almost impossible to give precise guidance for sentence in cases of manslaughter. It is especially so in a case such as this where the mental condition, the level of control and the provocation are so inter-related. The fact is, however, that this was a deliberate killing. Within the variation of manslaughter it is not one of those cases which can be categorised as an accidental killing at one end of the scale nor is it at the other end of the scale which would attract a very heavy sentence.”

The Court of Appeal described that case as an unusual case.

In short, when sentencing in cases of manslaughter by reason of provocation, the court is not only required to look at the nature and magnitude of the provocation and the culpability of the defendant which could vary greatly but also that a human life has been lost.

As the evidence in this case revealed, there is no doubt that the defendant was not the initial aggressor. Further, there is also no dispute that the deceased had verbally abused the defendant in the past and according to the defendant, there had been taunts about his mental illness. These abuses must have been hurtful to the defendant and must have aroused his anger.

It would appear that if the deceased had left the premises without returning, this tragedy could have been avoided. However, he did return, and returning with a wine bottle in his hand and saying words to the effect that he would bash the defendant to death.

Judging from the defendant’s remaining in the scene for the arrival of the police and his frank admission to the police of the killing, I take the view that the defendant was then prepared to face the consequence of the killing. I also take note of the undisputed evidence that in the past, the defendant just ignored the deceased and paid no attention to him, but that after the killing, when he was interviewed by the police, he described himself as “boiling inside”.

I consider this a rather unusual case and having taken into account all the relevant matters, in particular, the fact that the defendant was not the original aggressor but was, on the other hand, repeatedly pursued by the deceased on the day in question; that the deceased had barged into the defendant’s private room and that the defendant’s role was rather passive; as well as that the defendant had been subject to the deceased’s taunts over a period of time, I take the view that a starting point of 5 years is appropriate.

As the defendant was found guilty by the jury and no plea to manslaughter had been put forth, he would not be entitled to any reduction in sentence resulting from a guilty plea.

Hence, I sentence the defendant to a term of 5 years.