HKSAR v. Lai Man Sang

HCCC 404/2018

[2019] HKCFI 2129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 404 OF 2018

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

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COURT:

This is a very sad case involving manslaughter by reason of diminished responsibility. At the time of the offence, the defendant was suffering from dementia but he has never previously been in any sort of trouble with the police. The defendant was 79 years old. The deceased was 73 years old. And the deceased had been drinking just before his death. The amount of alcohol found in his blood, that is the deceased’s blood, was enough to have impaired his judgment.

On 22 November 2017, the defendant was seemingly listening to his radio which was tied around his neck. He was in the open space near to his home at the Kwong Yuen Estate, Sha Tin. The sound from the radio appears to have irritated the deceased who was seen to be holding a small knife in one hand to threaten the defendant. An estate inspector saw the deceased holding the knife while the two men were arguing. He also saw the deceased walked towards this defendant, and this was followed by a struggle. The defendant fell down on his back into the flower bed and the deceased also went down onto the flower bed while the struggle continued.

It was then that the estate inspector went to break the two men up in their struggle, and actually had to physically separate them. And by that stage, the defendant was holding the knife and it was only then the deceased realized that he had been stabbed for all of this happened within seconds.

At some stage during the struggle, the deceased had apparently lost control of the knife because the defendant said to the police that he had been able to pick it up from the ground while they were struggling. And he then used it to stab the deceased three times, but only one of the wounds was fatal, it was into the chest and had penetrated the left lung.

When the defendant was seen at the place where the struggle had taken place by the first officer at the scene, PC Chong, he found the defendant unconscious on the ground. Ambulances duly arrived, and within a short time the defendant quickly regained consciousness. Senior ambulance-man Lee described the defendant as having injuries to his upper and lower lips which were reddened and swollen. In addition, he had red marks on his neck and throat and his mouth was bleeding.

Later in interview, the defendant referred to the deceased as having grabbed his neck. He said the deceased was very strong and had been drinking beer. The two men apparently were only known to each other by sight. The defendant himself had not been drinking. He told the police that the argument was because he had been listening to songs on his radio and it seems that the noise from his radio was the cause of this incident. He said that he had paid no attention to the deceased or his complaint.

The evidence of diminished responsibility on the part of the defendant is provided by Dr Bonnie Siu who is well-known in these courts. She stated that at the material time of the offence, the defendant had been suffering from an abnormality of mind induced by dementia, which substantially impaired his ability to form rational judgment and to exercise self-control. In other words, what might otherwise have been self-defence if this defendant had only stabbed once rather than three times, this is explained by an impaired ability to exercise self-control or judgment which a person without the mental illness would have been able to do.

The whole matter would never have arisen if the deceased had not attacked the defendant whilst holding a knife. And this was all because of the volume of the defendant’s radio was perhaps louder than the deceased wanted it to be. Needless to say, the defendant is not requiring in-patient treatment at a hospital. Dementia is not curable.

I have heard from the granddaughter of this defendant that prior to the incident, he and his wife, aged 69, were living at the same flat as the granddaughter and posed no problems. The course which I propose to take is one which is highly unusual in a case of homicide, but there are really four reasons for this.

First of all, the defendant was not the instigator of the violence. It is quite clear from an eye witness account, that is from the estate inspector, that it was the deceased who was holding a knife and who went to attack the defendant. The defendant only acquired possession of the knife because, at some stage, the deceased seems to have dropped it.

Secondly, the deceased had picked on a victim who was not only very frail but was suffering from dementia. And as the psychiatrist put it in her report, this illness affected his cognitive function which substantially impaired his ability to form a rational judgment. As to his frailty, on Friday when the indictment was put to the defendant, he actually passed out.

Thirdly, the actions of the defendant where at least as far as the first stab wound which he inflicted on the deceased is concerned, is what might be considered to be no more than the instinctive act of self-defence. The two further stab wounds are the product, no doubt, of the illness suffered by the defendant whose responsibility is reduced for that reason.

And fourthly, the defendant whilst he had some difficulty in explaining to the police what had happened because of his dementia, has never denied responsibility for stabbing the deceased, and he has pleaded guilty in these proceedings. I shall not, in view of his mental illness, hold it against him that his guilty plea came at the last moment because I accept there have been considerable difficulties in communication between the defendant and his legal advisors.

So having regard to all these circumstances, I shall impose a sentence of 20 months’ imprisonment, that is 1 year and 8 months, which in view of the time he had spent in custody, will mean that the defendant can be released today. His granddaughter has kindly come to court and I trust that she will be able to take him home after these proceedings have concluded.