The incident which gave rise to the death occurred the day before inside the toilet/bathroom of Ward L4, Block LM of Kwai Chung Hospital (a mental hospital). Both the defendant and the deceased were in-patients of the hospital at the time.
There was in fact little dispute at the trial that the death was caused by the defendant pushing the deceased inside the toilet/bathroom of the ward. After the push, the deceased’s head bumped onto the wall before he fell face down onto the floor. As a result, the deceased sustained serious neck injuries which, according to the Forensic Pathologist PW5, was the cause of death.
The prosecution case is one of ‘unlawful and dangerous act manslaughter’. The base offence being common assault. The major issue for the jury to decide was whether the defendant was or might be acting in lawful self-defence at the material time. Another live issue for the jury was whether the defendant’s act was ‘dangerous’ in all the circumstances.
The Incident
It can be seen from the recording of the CCTV installed in the ward that, at about 2047 on 4 November 2018 that the defendant was pushing the deceased back and shoulder, swearing at the deceased and kicking the deceased’s slippers. This episode was also witnessed by other patients including PW1 and 2.
It is an admitted fact that the defendant was then taking the deceased to the Nurses Station. It is also an admitted fact that at the Nurses Station, the defendant complained to the staff there that the deceased had wanted to hit him with hands. Of course, whether the deceased had actually wanted to hit the defendant, there is no evidence on that. The defence case, as revealed in the defendant’s out of court statements, is that the defendant was upset about the deceased getting close to him drooling and keeping on following him.
To carry on with the narrative, having made the complaint, the defendant returned from the Nurses Station to the common area of the ward. About 20 seconds later, the deceased returned as well. It is an admitted fact that at about 2049, the defendant and the deceased starred at each other at a distance. From what can be seen in the CCTV footage, the defendant came over to the deceased, grabbed hold of the latter’s upper garment and both of them were then seen walking in the direction towards the Nurses Station. But they turned right en route and entered the toilet/bathroom. The time then was about 2050.
About 21 seconds later, carers of the ward were notified that the deceased had fallen and was lying on the floor of the toilet/bathroom. The deceased was quickly moved to a sitting position. A doctor was also summoned. The deceased was found to be still breathing but was unresponsive. On the following day, he died.
What happened inside the toilet/bathroom between the defendant and the deceased was witnessed by PW1 and PW2. Both of them said that the defendant pushed the deceased, which led to the fatal fall, but their evidence differs from each other in a number of details, including how the deceased had responded to the defendant’s conduct, the number of time that the defendant had pushed the deceased, whereabout inside the toilet/bathroom the push took place.
For the present purpose, it is unnecessary for me to go into all those details. It suffices for me to say that the jury, by their verdict, is satisfied that:
1. The defendant pushed the deceased at least once and that push was a significant cause of the death of the deceased;
2. the push was intentional;
3. the push was unlawful in that it amounted to an assault of the deceased, and that the defendant was not acting in self-defence; and
4. the push was ‘dangerous’ in the sense that it was one which all sober and reasonable people would realise must subject the deceased to the risk of some harm, albeit not serious harm.
It is on the above basis that I am going to sentence the defendant.
Antecedence and Criminal Records
The defendant was born in April 1985. He was aged 33 at the time of the offence and he is now aged 36. He has received secondary education and worked as a delivery man. He suffers from psychotic disorder and anti-social personality disorder. He also had history of asthma, left facial nerve palsy and chronic hepatitis B.
He does not have any siblings. In addition, I am informed by Mr Mughal that the defendant had been married with three children now aged 13, 9 and 5 respectively. However, after the incident which was the subject matter of this case, the wife left him with his children.
In the mitigation letters tendered on behalf of the defence, I am given more information about the defendant’s family background. I am told that the defendant grew up in a broken family as his parents has separated when he was only 2 years old. He was then taken to the mainland to be taken care of by the paternal grandmother, only to be taken back to Hong Kong under the care of his maternal grandmother at the age of 3.
Owing to the lack of supervision, he led a wayward life and took drugs under the influence of his peers. Continuous drug abuse and ever-escalating dosage had landed him repeatedly in mental hospital.
Turning to the defendant’s criminal records. Between 8 October 1999 and 11 July 2018, the defendant had nine court appearances culminating a total of 12 convictions, most of which related to use of violence including common assault, assault occasioning actual bodily harm, wounding with intent and criminal damage. There were also two previous of possession of dangerous drug. For his last conviction, which was assault occasioning actual bodily harm in July 2018, he was sentenced to 8 weeks’ imprisonment. That was only a few months before the incident in question.
Sentence
This court had considered whether psychiatric report should be called for before sentence. However, Mr Mughal informs that the defendant is no longer psychotic and it is his firm instruction that such reports are not required. I note also that the defendant had been granted bail and he was not staying in hospital some time before trial.
The courts have long recognised that it is not possible to lay down any guideline tariffs for manslaughter because of the infinite variety of ways in which the offence can be committed. That said, there must be some internal consistency of sentence, so that those guilty of manslaughter in broadly comparable circumstances receive broadly comparable sentences, R v Ko Kam Hung.
I note that the fatal incident under consideration arose out of a relatively trivial matter. The base offence was a common assault consisted not of a sustained attack but a single push at the deceased’s shoulder. The assault was of a relatively minor nature, but for its tragic and unfortunate circumstances. The offence involved no use of weapon, nor was there any triad element or overtone. Although the defendant did not call for medical help immediately after the incident, the situation was unlike that of HKSAR v Tsang Siu Ching where the appellant in that case went out with a third party for meal, callously leaving behind the injured victim who could otherwise have been saved.
I bear in mind that the defendant was then receiving treatment in a mental hospital. Out of abundance of caution, I am prepared to accept that the defendant might have overreacted to the situation, owing to his then condition and the medication he received. On the other hand, I cannot lose sight of the fact that the defendant had a series of previous, which show that he is no stranger to the use of violence and that starting from 2014, he had been sentenced to imprisonment on various occasions.
I have been referred to a number of case authorities as comparable, including HKSAR v Ma Fat Man, HKSAR v Rashid Khan, HKSAR v Tsang Siu Ching, R v Wong Tak Sing, R v Ko Kam Hung, HKSAR v Chan Siu Keung, R v Kan Wah Cheung and HKSAR v Yip Hon Ming. I bear all those in mind. However, as I have said, they are comparable rather than tariff cases. The degree of violence used in those cases varied and the resultant sentences were fact sensitive, and none of those took place in the setting of a mental hospital.
In all the circumstances, I am of the view that an immediate custodial sentence is called for and that the starting point after trial of 2½ years is appropriate.
Turning to mitigation, I trust that Mr Mughal had said all that can be said on the defendant’s behalf. In particular, I note that the defendant has converted to Christianity and become a volunteer in Wu Oi Christian Centre, which is a charitable organisation devoted to in-patient gospel drug rehabilitation treatment.
Having read the mitigation letters, I accept not only that the defendant has got rid of his drug habit, but also that he has now completely turned over a new leaf and become a different and better person. I do not think that it is in the public interest to impose such a sentence on the defendant which might have the effect of discouraging and frustrating his rehabilitation. These factors assume a greater importance in sentencing in view of the delay in the prosecution process through no fault of him, Attorney General v Ling Kar Fai (No. 2), R v William Hung and Secretary for Justice v Chan Boon Ning.
In the present case, the incident occurred on 4 November 2018. The defendant was arrested two days later but had been granted bail ever since. I am told that the police swiftly submitted their investigation report to the Department of Justice on 22 November 2018. However, the preliminary legal advice was not available until one-and-a- half years later on 28 May 2020. Two months after that, on 31 July 2020, the police resubmitted the case for further legal advice, apparently after some additional investigation. It took another two-and-a-half month for the final legal advice to be available on 12 October 2020. The defendant was soon re-arrested on 27 October 2020. For the sake of completeness, I should also mention that after a few court appearances, the case was eventually committed to the Court of First Instance for trial on 19 April 2021 and the trial duly commenced on 12 December 2021.
From the above history, it can be seen that the delay was caused by the prosecution. I can understand that the past few years has not been easy for the prosecution in view of the workload they fixed. However, no matter what the reasons were, the fact is that from the date of the incident on 4 November 2018, through to the defendant’s re-arrest on 27 October 2020, for a period of almost two years, the defendant had been kept in the dark as to whether he would be charged. That in any view is far less than satisfactory.
In view of the inordinate debate by the prosecution and the rehabilitation of the defendant in the interim, in the exercise of my discretion, I grant him a discount of 6 months.
The defendant is sentenced to 2 years’ imprisonment.