HKSAR v. Chan Siu Keung

HCCC 16/2019

[2019] HKCFI 3158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 16 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 was convicted unanimously by jury of one count of manslaughter by a dangerous and unlawful act. Video footage depicted the defendant accidentally bumped into the deceased outside Lek Yuen Estate Car Park on 21 March 2018. Evidence from witnesses indicated that verbal exchanges involving foul languages took place. After some heated exchanges between the two, the defendant was seen at one stage intending to leave the scene. However, the deceased then decided to take out his mobile phone and took a picture of the defendant. That in turn provoked the defendant from returning and further exchanges ensued. CCTV footage showed that soon the deceased and the defendant engaged into physical contact with each other.

The deceased appeared to kick the defendant once. In return, the defendant put down the backpack he was carrying at the time and started to punch back. Exactly how many punches the defendant inflicted onto the deceased could not be ascertained with any precision due to the partial blocking of the CCTV camera. It, however, can be said that given the injuries sustained by the deceased on his face and the partially blocked video footage, the deceased received more than one blow before he fell onto the ground. The punches caused a tear of 4 millimetres of the deceased’s vertebral artery, resulting in massive bleeding in the brain, and he died as a result.

The defendant is now 72 and has been a recipient of comprehensive social benefit since 1997. He has six criminal records involving eight criminal charges. Six of them are violence-related.

On the last hearing, this court adjourned his sentence so as to obtain case files relating to those cases. Unfortunately, all those files have been destroyed. The only place one can glean into the details of these cases can only be found from the background report prepared by the probation officer. The background report is, as usual, very thoroughly prepared and provides all the necessary personal details of the defendant for this court’s perusal. I am not going to recite all the details save to say that in relation to those violence-related cases, it appears that the defendant had been, at certain stages of his life, suffering from a mental disease and/or behaviour problem. As a result, the defendant received outpatient treatment at various hospitals and that may be the reason why despite repeated offending, he was only put on probation.

More importantly, it seems clear from the background report that the defendant, since his last commission of the offence in 2005, had been leading a normal life prior to the commission of the present offence.

There is no tariff in manslaughter case. Counsel from both sides provide this court two cases, namely HKSAR v Yip Hon Ming, CACC 240/2016 unreported dated 24 February 2017 and R v Lo Bing Sun, CACC 660/1993 unreported dated 23 May 1994. As it has been pointed out in the past, no two cases are exactly the same in relation to manslaughter by a dangerous and unlawful act and, nevertheless, it was pointed out in Lo Bing Sun:

“This city is a very crowded and tense environment and the unlawful and dangerous act constituted by a blow such as the one here must be deterred. The huge variety of circumstances in which the offence of manslaughter is committed leaves sentencing very much at large. We must be conscious of the fact that a human being has lost his life.”

The present case is not a one-punch case. The attack took place on broad daylight on a public place. Having looked at the video, it is clear that it was the defendant who collided into the deceased at the beginning. Instead of an apology and given his personality and character, the defendant decided to engage in argument with the deceased. Then the defendant, as stated in his video interview, “used the deceased to practise his boxing skill”. After the fall of the deceased, the defendant fled the scene. Further, the defendant has a history of violent behaviour as he had been convicted six times for either assault occasioning actual bodily harm or common assault. This, in my view, increases the criminality of the present case.

Although the defendant is 72, I am fully aware of that, and has behaviour problem in the past, given the circumstances of the case and the loss of a human being life, I am of the view that the appropriate starting point in this case is one of 5 years’ imprisonment. As the defendant was convicted after trial, I fail to see any other mitigating factors. I, of course, understand the defendant’s siblings’ desire that they wish this court to pass a lenient sentence. But as I say, a human being’s life is lost and that individual personal circumstances play very little in a case as serious as a loss-of-life case.

For the offence the defendant stands convicted, he is therefore sentenced to 5 years’ imprisonment.