HKSAR v. Shum Man Fai

HCCC 87/2019

[2019] HKCFI 2938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 87 OF 2019

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

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COURT:

The defendant is convicted after trial of one charge of manslaughter.

He was the ex-boyfriend of PW1 and PW1’s current boyfriend was the deceased, and he was seen by the deceased walking along with PW1 in the streets of Kowloon City. The deceased arrived when PW1 was collecting her car. He assaulted her in the face and she cried out to the defendant for help. The defendant who was already in his car some three to four car spaces away came out of his car, and on seeing that the deceased dashed towards him, mounted a fighting position and managed to bump the deceased off. Thereafter, they had a conversation on the pavement. PW1 joined them later.

The conversation became heated and the deceased plunged forward towards the defendant again to throw a punch. The defendant warded off and punched the deceased in the head, missed, and whilst the deceased was retreating, the defendant punched on the deceased’s head. It was not sure whether there was a third punch when the deceased, having hit his back against a rack, fell. The deceased fell backwards and his head hit the ground, resulting in three fractures in the skull. He was rushed to the hospital and he died seven days later.

There are clear authorities that sentencing court must consider the consequence of the blow, even if not foreseen or desired, as there was a loss of life. There are undoubtedly English authorities which suggest where death resulted from a single blow or punch and the deceased losing balance and knocked his head against hard objects, commonly known as “one-punch manslaughter”, a 2 years’ imprisonment would be appropriate. The Court of Appeal in Lo Bing Sun, CACC 660/1993 commented that the situation in Hong Kong is very different from that of England as people here lived in a very crowded and tense environment, and the unlawful and dangerous act constituted even by a single blow or push needed to be deterred.

The defendant in this case is now aged 44 and is married. He has three previous convictions, two of which involve violence, although they are back in 1997 and 1999. I have taken into account all the features of the present case. There are mitigating circumstances, namely that the deceased was the aggressor to both PW1 and the defendant. It could be said that what the defendant did was to defend himself or even PW1, albeit that what he did did not amount to self-defence in the legal sense. The provoking aggression by the deceased had contributed to a certain extent to the reaction, albeit overreaction on the part of the defendant.

It has never been suggested that the defendant intended to cause the injury or the death of the deceased. He stayed behind at the scene and told PW1 to call the police. When the ambulanceman arrived, he asked him to attend to the deceased first rather than his own injuries. Having said all that, however, I cannot lose sight of the fact that a life was lost as a result and the sentence must reflect the gravity of the offence.

Stand up, defendant. Stand up. All that could have been said on your behalf has been advanced by your counsel. I am of the view that a sentence of 3 years is appropriate and this is the sentence that I pass.