On 3 September 2021, the prosecution informed the court that the Department of Justice was prepared to accept an offer by the defendant to plead guilty to manslaughter on the basis of diminished responsibility.
On 20 September 2021, the defendant pleaded not guilty to the charge of murder and guilty to manslaughter on the basis of diminished responsibility.
Facts of the Case
The defendant accepted the Summary of Facts dated 20 September 2021. On 9 September 2019, sometime after 5.40 pm, the defendant, then aged 57, killed his girlfriend, Ms Jiang Xiaoying, the deceased, aged 42, by strangling her to death with his left arm in her residence at Oi Ming House, Yau Oi Estate, Tuen Mun, New Territories (“the premises”). I shall refer to Ms Jiang as the deceased. The defendant was arrested the following day when police attended the premises.
The defendant and the deceased had been dating for approximately one year after they first met each other in September 2018. The defendant was an electrical repairman whilst the deceased had started working as a housekeeper at a hotel since May 2019.
After the defendant’s arrest, he said under caution during a video-recorded interview the following:
(a) After attending a follow-up consultation at Castle Peak Hospital on 9 September 2019, he met up with the deceased at On Ting Estate in Tuen Mun and they went to the deceased’s residence.
(b) At the deceased’s residence, he asked the deceased why her temper was so different from before and what was wrong with her. The deceased then called him insane and bonkers and he became very angry, hurt and nervous.
(c) A quarrel ensued between the defendant and the deceased who kicked the defendant on his left leg and bit his chest.
(d) Later, he used his left arm to strangle the deceased from behind. The deceased struggled and he kept strangling until she became motionless. After the deceased became motionless, he moved the deceased onto the bed next to the main door. He covered the deceased with a blanket up to her neck and put an eyeshade mask on her eyes. He was afraid the deceased would shout. Thus, he used adhesive tapes to cover her eyes, nose and mouth. He then took numerous pills that he got from Castle Peak Hospital and wrote a note to his family, friends and employer about how sorry he was. He did not any memory of what happened thereafter. He woke up and found himself at Tuen Mun Hospital.
Discovery of the Deceased’s Body on 10 September 2019
At around 10.34 am on 10 September, the deceased’s sister, Ms Tseung Siu-wa (“Ms Tseung”) received a call from the deceased’s employer informing her the deceased did not show up for work and asked if she could reach the deceased. Ms Tseung therefore tried to call the deceased at her mobile phone number but no one answered.
At around 10.40 am, Ms Tseung asked her boyfriend, Mr Lee Kiu-wen (“Mr Lee”) to call the defendant to ask about the deceased’s whereabouts. At about 10.44, after talking to the defendant, Mr Lee called Ms Tseung and told her that something felt wrong about the defendant who talked gibberish. As such, Ms Tseung and Mr Lee became worried and they went to the deceased’s residence.
Around 11.08 am, Ms Tseung and Mr Lee arrived at the deceased’s residence. Ms Tseung knocked and the defendant answered the door. However, the defendant was unable to open the metal grille and was looking blank, expressionless and “sort of abnormal”. Ms Tseung asked the defendant to get her the keys so she could open the metal grill herself. Seeing the defendant acting like this, Mr Lee immediately called the police.
After entering the deceased’s residence, Ms Tseung saw the deceased lying on a single bed with her eyes covered by a sleep mask and her body below her neck covered by a summer quilt. Ms Tseung realised the deceased was dead when she touched her right hand as it was cold.
An ambulance crew arrived at the deceased’s residence at around 11.22 am and the police arrived two or so minutes afterwards. The deceased was certified dead at the scene.
The police seized, inter alia, a note “Sorry Son, Son, Older Sister, Younger Brother, Younger Sister, Friend, Cheung Kwo” written by the defendant from a table and also three empty medicine bags from the sofa.
The defendant was admitted to Tuen Mun Hospital on the same day for decrease in general condition with suspected drug overdose. He was admitted to the intensive care unit on 10 September 2019. He was diagnosed with mixed anxiety and depressive disorder and was put on suicidal precaution. He refused voluntary admission and was arranged compulsory admission to Castle Peak Hospital on 12 September 2019.
The Psychiatric History of the Defendant
The onset of the defendant’s illness dated back to around May 2019. He developed pervasively depressed mood, reduced energy level and insomnia, poor appetite, and began having profuse sweating and weight loss. He also had difficulty in controlling his ruminations and he had suicidal ideation. The defendant also underwent heart surgery in June 2019. One of the defendant’s sons observed the defendant became emotionally unstable after the surgery.
The defendant initially sought medical care from a private doctor and investigations revealed no physical abnormality. He later presented himself to the casualty of Tuen Mun Hospital in June 2019. The defendant was first known to the service for mood symptoms and depressive mood of Tuen Mun Hospital when he was referred to the service on 22 June 2019. He was impressed to suffer from mixed anxiety depressive disorder. He was prescribed with anti-depressant. His mental condition remained suboptimal.
The last clinical interview by a clinical psychologist of Tuen Mun Hospital was on 10 July 2019. He revealed that he had a suicidal gesture of hanging two days before the interview. The defendant defaulted the clinical psychological follow-up since 2 August 2019.
From 3 August 2019 to 22 August 2019, the defendant was hospitalised at the Castle Peak Hospital through the Accident and Emergency Department. He was diagnosed with mixed anxiety and depressive disorder with panic attacks.
After treatment, the defendant was granted discharge with special privilege, that is home-leave, on 22 August 2019. He attended ward follow-up before due on 23 August for anxiety symptom and was given a tranquiliser alprazolam on need-basis. According to the records, at the ward follow-up on 29 August 2019, the defendant reported having occasional anxiety attacks despite being infrequent. He felt more secure with the prescribed medication alprazolam. He showed concerns over his health.
At the ward follow-up on 9 September 2019, the defendant reported still suffering from anxiety symptoms at times and that alprazolam was not always effective. Alprazolam was switched to lorazepam and the defendant was formally discharged on 9 September, on which the defendant attended a follow-up consultation at Castle Peak Hospital.
Reports
Prior to sentencing the defendant, I called for a probation report and two psychiatrists’ reports. The psychiatrists, Dr Liu Ching-yung Amy and Dr Yip Kimberly Kin Yan, concluded that the defendant has received inpatient care since his arrest at both Castle Peak Hospital and Siu Lam Psychiatric Centre. His depressive anxiety symptoms showed gradual improvement with medication titration. They were of the opinion that the defendant has progressed from being severely depressed and actively suicidal to gradually stabilised mental state. Inpatient treatment is not recommended. However, given the severity of his depressive illness and gravity of the offence, the defendant is recommended to continue regular outpatient follow-up and treatment.
Probation Report
The probation officer states the defendant expressed deep remorse for killing the deceased and wanted to apologise to her family in person. His adult sons, aged 27 and 24, were supportive, caring and close to the defendant. His sons and his youngest son’s wife lived at the defendant’s premises and will continue to do so. The probation officer was of the view based on the information collected that the defendant is able to manage attending psychiatric follow-ups as scheduled and maintaining stable drug compliance. The sons who were caring and living together can look after the defendant and provide him with immediate assistance.
The probation officer took account of the assistance from social welfare officers of SRACP and ICCMW that was effective enough to make sure the defendant is on the right track together with rehabilitation of the defendant by the professionals and his family.
Given the resistance of the defendant and his family towards probation, probation was not recommended. However, if the court required probation, the probation officer listed the special conditions.
Mitigation
Mr Ian Polson, counsel for the defendant, urged this court to place the defendant on probation. He emphasised that the defendant and his sons did not fully understand the probation order. Since the compilation of the probation report, the instructing solicitors informed the defendant about probation and Mr Polson emphasised that the defendant was now willing to be placed on probation.
Mr Polson stressed that there was no planning or weapon used. The killing was as a result of a severe depressive mode which was wholly out of character and through no conscious conduct of his own.
The defence also produced letters from numerous relatives, friends and colleagues of the defendant as well as the defendant himself. They all speak highly of the defendant, describing him as a caring, filial son, brother, father, friend and colleague. They have all asked this court to give the defendant a chance to return to society and impose a lenient sentence on the defendant, all, however, recognising that the defendant has taken the life of the deceased and punishment is deserving.
Much of the contents of the letters state that after the demise of the defendant’s wife and mother, in a short period of time the defendant was burdened to take on the responsibility of both his own job and the maternal role in the family. The defendant had suffered a lot of stress in relation to these matters which caused him to be really depressed and caused his mood to change dramatically.
Consideration of Principles in Sentencing
Mr Ian Polson, counsel for the defendant, in mitigation referred me to the case of HKSAR v Chiu Wai Kan Vicken, CACC 438/2009, judgment dated 30 August 2011. The Court of Appeal considered factors to be taken into account for sentencing in manslaughter on the basis of diminished responsibility. He referred to paragraphs 16 and 31 of the judgment where Stock VP giving the judgment of the court said the following at paragraph 16:
“It is correctly said that sentencing is an art; that is particularly so in manslaughter cases because manslaughter is committed in an extraordinary variety of circumstances, for which very reason there are no guideline tariffs, and sentences in other manslaughter cases are seldom of much utility. So too, cases of manslaughter by reason of diminished responsibility vary significantly in their circumstances and tend to import difficult questions of public protection.”
Paragraph 31:
“It seems to us that the situation of an accused who suffers from serious psychiatric illness which has come upon him through no conscious conduct of his own and which affects his responsibility for his acts, is deserving of a considerably more sympathetic approach than a person whose free choice has led to an altered mental condition; in the former case, there is little relevance in deterrence. But where an accused has become addicted to alcohol or drugs he must, generally, be treated as carrying responsibility for that state of affairs, especially where he has sought no assistance to take himself out of the cycle. And it follows that whilst his culpability for the act of killing is diminished by reason of his mental condition, the degree of diminishment is itself affected by the circumstances which created that condition.”
In this case, there is no recommendation for a hospital order. As stated in Vicken Chiu above, at paragraph 26, the court said:
“...it is to be remembered that the consequence of every act which has resulted in a conviction for manslaughter is the taking of a life and the maximum permissible sentence for manslaughter is life imprisonment.”
A case referred to by the court in Vicken Chiu was the Australian case of R v Blacklidge, unreported NSWCCA 12 December 1995, Gleeson CJ said at page 4 that:
“At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case.”
The defendant has taken the life of the deceased. The Court of Appeal said in SJ v Chan Man Yum Candy, CAAR 1/2020(2010?) at paragraph 46 said:
“...the protection of human life is a foremost objective of our system of criminal justice. As such, when a life is taken unlawfully, as it is in the present case, the community is entitled to expect that the conduct be denounced by punishment that is appropriate to the circumstances.”
The principle to be taken into consideration as derived from the cases above is that:
(1) Protection of human life is a foremost objective of our criminal justice system. The community is entitled to expect that the conduct of unlawful taking of life be denounced by punishment that is appropriate to the circumstances;
(2) particular recognition is given to the need to protect the vulnerable; and
(3) an assessment of the gravity of the objective circumstances of the case.
Consideration of Sentence
I accept in the case before me there was no premeditation and no weapon used. The defendant is of good character with no history of violent tendencies or episodes.
In the numerous letters I have received from his family, relatives, friends and colleagues, they have spoken of him to be a caring, compassionate, friendly and mild man. I accept his serious psychiatric illness came upon him through no conscious conduct of his own.
Once he was aware of his changing mood and loss of weight, he reached out for help by attending the Tuen Mun Hospital. Despite his attendance to his follow-up and assistance from medical professionals, his condition, more particularly his highly sensitive and volatile emotion, was not recognised. This led to the tragic end of the deceased’s life.
The defendant is now 59 years of age. He had worked as a foreman in electrical works and had worked for the same electrical and mechanical engineering company for over 20 years, since 1994 until the date of his arrest. He married his late wife in 1984 who gave birth to their two sons. However, she passed away in 2015. He found the death of his wife a trauma in his life which eventually led to severe depressive illness.
Dr Amy Liu stated that the defendant presented with deteriorated mental condition from January 2019. She said he suffered from significant work stress, he lost over 10 pounds in one to two months, he had insomnia, free-floating anxiety and worries. He had somatic symptoms including sweating, chest discomfort and tremor. He held a negative cognition of guilty feeling towards his son, hopelessness and worthlessness.
From May 2019, the defendant could only work half day due to his decline in functioning, pervasively low mood, decreased energy, and he developed a suicidal ideation of jumping from a height and hanging. His sons needed to take leave from work to look after him. He himself, he presented himself to the Accident and Emergency Department of Tuen Mun Hospital in June 2019 and was hospitalised for about a week for his persistent sweating, weight loss, dizziness and multiple somatic complaints. The remainder of his psychiatric history is listed as above.
Dr Amy Liu in her report dated 23 August 2021, in her medical opinion recognising that the issue is for the jury, stated that the defendant was suffering from a severe depressive episode which is a mental disorder and is regarded to be an abnormality of mind. In the defendant’s case, he suffered from significant negative cognitions. His severe depressiveness was considered to have significant influence on his judgment and substantially impaired his condition when he killed the deceased.
This tragic death happened on the day the defendant was formally discharged from the Castle Peak Hospital after he had attended the follow-up at the ward of the Castle Peak Hospital. The defendant met the deceased and planned to have dinner with her. However, she had changed her mind. When they returned to her home, the defendant questioned the deceased about her cold attitude towards him. A quarrel occurred which became heated.
The deceased accused the defendant of being crazy and a madman. The defendant got angry and completely lost his mind. He strangled her to her death, then took pills prescribed by the Castle Peak Hospital to kill himself. He wrote the note to his family and friends. The defendant explained that he was unable to accept the stigma of being a mental patient and at that time, he asked the deceased not to say the words “crazy” or “madman”. As explained by Dr Amy Liu, he was suffering from a severe depressive episode at the time of the killing.
In sentencing the defendant, I must assess the degree to which -- or whether the defendant poses a risk of danger to the public or society. Is there any danger of repetition of violence or risk of reoffending? It is always difficult to predict but there is nothing in the psychiatric reports that there is such a risk. However, he is a person with a history of severe depressive illness who is recommended regular treatment.
It is of importance to note that both Dr Amy Liu and Dr Kimberly Yip were of the opinion that the defendant’s depressive illness can be regarded as largely in remission.
Having taken into account that the defendant is remorseful, he having pleaded guilty to manslaughter, and having considered all the circumstances of the case, including the psychiatrists’ opinions, the probation officer’s report and recommendation, moreover, I bear in mind the defendant has received psychiatric care whilst he has been remanded in custody for the past three years.
The fact the serious psychiatric illness which came upon him was through no conscious conduct of his own rather than his free choice, ie by the voluntary consumption of alcohol and drugs, and which the defendant had taken himself to seek treatment and assistance for, this case is one such case where observed by Stock VP in Vicken Chiu, that is deserving of a sympathetic approach.
I consider a sentence which will represent an appropriate balance amongst the interest of public justice and interest of the defendant to be one such that I should impose a probation order for a period of 12 months. This, in my view, will be the most effective way to assist the defendant in his rehabilitation.
COURT: Thank you. Defendant, having confirmed that you agree and consent to be placed on probation, I sentence you, the defendant, to a probation period of 12 months with the following conditions. You shall keep in contact with the supervising probation officer in accordance with such instructions as may from time to time be given by the supervising probation officer. You shall inform the supervising probation officer at once of any change of your residence. You shall, if so required, receive visits from the supervising probation officer at your residence. You shall receive psychiatric and/or psychological treatment as directed by the supervising probation officer, and you shall participate in any programmes and activities the supervising probation officer deems conducive to your rehabilitation as and when directed. Do you understand?
ACCUSED: Understand.
ACCUSED: Yes.
COURT: Let me now explain to you what probation means and the consequences of breach of your probation order. As I mentioned to you, you will need to follow the conditions as I have stated to you earlier today for the following 12 months and abide by the probation officer’s conditions and participate in any of her programmes. You must comply with all the conditions in the order. If you do not comply with even one condition or if you commit any further offence during the next 12 months or the course of this probation, you will be in breach of your probation order, and being in breach of your probation order, you will be remitted back to me. The consequences are such that this probation order may be discharged and you will be sentenced afresh for this present case.
ACCUSED: Understand.