On the defendant’s admission to the Summary of Facts, I convicted the defendant of the offence of manslaughter on the basis of diminished responsibility. The count of murder was ordered to be left on court file, marked not to be proceeded with unless with leave of the court.
In sentencing I have considered the whole circumstances of the case, in particular its nature and facts, circumstances leading to this tragic incident, personal background and remorse of the defendant as well as mitigation put forward on his behalf.
The facts of the case may be summarised as follows. The deceased and the defendant were a married couple. At the time of the incident, the defendant was of the age of 56 and the wife, 54. They lived together in the private tenant flat together with the youngest sister of the defendant.
In October 2018, the wife was diagnosed with lung cancer stage 4. To take care of her, the defendant resigned from his job. The condition of the wife became worse and worse. In December 2019 and January 2020, she expressed to the sister that she felt very painful and wanted to die. One day, after making such expression on 28 January 2020, the wife was hospitalised as she was in great pain. She was in serious health condition and the prognosis was that the life expectancy was limited. Such situation was explained to both the defendant and his wife. The wife decided to return to home.
After repeated requests, she was allowed to do so on the following day. She signed the “Do-Not-Attempt CPR” form before she was discharged. When she was home, she told the sister that she hoped there was euthanasia in Hong Kong.
At 3.36 am on 30 January 2020, the police received a 999 call in which the defendant said he had killed his wife. When officers arrived at the couple’s home, the deceased was found unconscious. A wok containing burnt charcoal was found on the floor inside the bedroom of the couple. First aid was applied to the wife and she was conveyed to the hospital, there she was certified death.
No physical injury nor significant trauma was found on the wife. Autopsy finding is consistent with her history of terminal lung cancer. There was also a high saturation of carboxyhaemoglobin which is consistent in the case of carbon monoxide poisoning. Morphine level in her blood sample was in the fatal range.
Medical opinion of the direct cause of death was adverse effect of carbon monoxide and morphine and the lung cancer was a significant condition contributing to the death.
The defendant was arrested. Under caution he said he had killed his wife by burning charcoal in order to lessen her pain.
In a subsequent video-recorded interview, the defendant made statements including the following. With treatment and medication, his wife initially got better but the improvement did not last long. His wife kept complaining about the pain and she could only walk very slowly.
About two weeks before the incident, the doctor said there was no other available treatment and his wife’s condition could get much worse in the next two months. His wife was not able to sleep and was constantly woken up by pain. She felt pain during eating and she needed to take medicine every four hours. Even though she took double dose of the prescribed medicine she still felt pain.
On 28 January his wife was admitted into hospital because of pain. He was not able to visit her because of the hospital measures. He was told by a doctor that his wife was going to pass away in a few days. When he made the telephone call to his wife, she told him she would like to leave the hospital as there was nobody even to help her change her diaper. He wanted to take care of the deceased and he did not want her to pass away alone in the hospital.
Despite the doctor said his wife would only have a few days left and was not fit for discharge, she decided to return to home and was eventually permitted to do so. Seeing the suffer of his wife, he bought charcoal just in case she wanted it.
On the night in question, despite his wife took a morphine pill and a sleeping pill, she still could not fall asleep and was in pain. He felt the doctor was right and that his wife would only survive for a few more days. He asked his wife whether she could tolerate the pain and said if she could not, he could help her with the last journey. He asked a few times and saw the deceased nod. He massaged his wife and she fell asleep.
Then he put a wok of burnt coal in the bedroom, kissed his wife and left the room with the door gap blocked with clothes. When he later found out his wife had passed away, he informed family members and made a report to the police.
The defendant was examined by two psychiatrists, both opined that at the time of the killing, the defendant was suffering from a major depressive disorder due to the stress of looking after his very sick wife and his thinking capacity was impaired. The major depressive disorder was considered to have caused an abnormality of mind and substantially impaired the defendant’s mental responsibility for his actions.
The defendant did not have any criminal conviction record before. The court was told that he had received only Form 1 education and had worked as an electrician. His wife was a nurse. They had been married for more than 30 years and have no children. The court was told that the couple all along had a harmonious marital loving relationship. The wife was rather introverted.
The defendant had been very accommodating to her and withdrew from his social circle to spend more time with her. As the wife disliked children, the defendant gave up his wish to become a father.
After having known the cancer diagnosis, the defendant gave up his job to take care of her full-time. When he witnessed the losing battle of his wife against the illness, the defendant’s mental state progressively deteriorated. He constantly blamed himself for the late discovery of the illness.
About one month before the incident, the wife’s condition deteriorated rapidly and all physical treatment options exhausted. The defendant who had been suffering from caregiver stress developed into major depressive disorder but he was not aware of it. His wife was in a very bad state when she returned home from her last admission into a hospital. She felt extreme pain and required high doses of morphine.
In the circumstances as learned counsel for the defence Mr Cheung said, the defendant was overcome by extreme grief and guilt in witnessing the suffering, being stretched to the breaking point, the defendant formed a desire to put an end to the suffering of his wife by means of what he had done.
The defence produced a letter written by the defendant. In this touching letter, the defendant set out details of the happening of the incident and the circumstances leading to it, as well as an account of his relationship with his wife starting from their first dating to her last day which illustrates his love, care and concern for his wife. The couple had been together for 30 years, hugely dependent on each other, in particular, sentimentally and emotionally.
The defendant also mentioned how difficult it was for him to cope with the situation and the stress and emotional pain he had to bear when he witnessed the pain and suffering his beloved wife had experienced. He is full of self-blame. The measures of not permitting visit in hospital during the COVID pandemic added to the agony.
There is no sentencing tariff for the offence of manslaughter as this offence can be committed in a great variety of circumstances. The maximum sentence is one of life imprisonment. It is to cater for the most serious case which falls short of murder.
The court has to gauge the degree of culpability of the defendant as revealed by the whole of the circumstances which include the way the defendant caused the death and the circumstances leading to his acts. At the same time, the court has to bear in mind that at the time of the present offence, the defendant was suffering from an abnormality of mind induced by the deceased of major depressive disorder which has substantially impaired his mental responsibility for his actions.
In this nature of manslaughter cases, the court has to consider with the benefit of professional opinion whether the impairment to the mind of the defendant has been brought about the conduct of himself and whether the defendant poses a long term danger to the society. I do not think the defendant can be blamed for becoming ill. He was a victim of the situation. There is nothing to indicate that the defendant will be a long term danger to the society.
This is a tragic case. From what I have been told, I have no hesitation to find that the defendant loved his late wife. That said, the protection of human life is the foremost objective of our system of criminal justice. Unlawful taking of a life would normally be denounced by punishment that was appropriate to the circumstances.
The defendant cannot be said to have acted in a spur of a moment. There was some planning but I recognise that throughout the whole course, the defendant was acting under a state of diminished responsibility which cannot be said to be a result of his own fault.
In any case, the course of action the defendant chose to take was a clear indication that he decided his wife to depart in peace. At that time sadly his wife was already in the final stage of her life. The extreme situation which the defendant was in is readily appreciated. He did what he believe would be to let his beloved wife to an ultimate relief from all the sufferings.
It was said that the consequence of the case represented the desire of the wife herself. It does not appear to me that there is contrary evidence in this there are some indications that it was the case.
It may be said that the defendant should have sought help but the desperate situation a helper of this sort can face is well-known. The defendant unfortunately did not attend to his own health situation but realistically he could have done so only if he had been aware of it.
In the light of the ill state of mental health which the defendant laboured at the material time, I have considered the following matters: one, whether the defendant needs treatment for his mental health situation and if so to what extent he needs such treatment; two, the extent to which the offence was attributed to the mental impairment; three, the extent to which punishment is required; and four, the protection of the public.
The professional assessment of the defendant’s mental state at the time of the offence is as stated. The present observation is that over the time left after the incident as the stress of the defendant arising from his wife’s illness and suffering had passed, the mood of the defendant has settled. In the circumstances there is no recommendation for further psychiatric or psychological follow-up.
The court cannot regard this case as not serious since defendant had, with his own hands, taken away a life. In normal course of event, an immediate imprisonment term is called for.
That said, I have considered whether in the overall circumstances of the present case, a sentence for the welfare of the defendant is appropriate and whether such sentence will serve both his own interest and at the same time the interest of the community. In the report, a probation order has been recommended. Despite there is no longer any need for the defendant for further psychiatric or psychological follow-up, learned counsel for the defence, Mr Cheung, impressed upon the court that such an order still has its purpose as support and advice from a professional will help assure the defendant can resume his normal life.
Mr Cheung stressed that the defendant, a kind family man who had been and will still be well loved by other members of the family had be in custody for 2 years deserve assistance instead of further punishment.
In all the circumstances, I am of the view that the case should be considered with compassion, bearing in mind the interest of public justice. In addition, I bear in mind the defendant had been in custody for this case for about 2½ years and such length of period in custody is in line with the range of sentence which would have been appropriate for a case like this, bearing in mind the discount the defendant would be entitled to for his guilty plea.
The defendant pleaded guilty to the charge as soon as the opportunity for him to do so arose. In my judgment, the interest of criminal justice does not call for a longer period of custody of the defendant.
In the special circumstances of the case, I am persuaded that imposing a probation order will best serve both the interest of the community as a whole and that of the defendant, as it help assure his resuming of normal life and integration into the community again.
For the reasons above and with the consent of the defendant I impose a probation order of 12 months on the defendant.
This case reveals the tough situation of a patient and a helper which we have heard from time to time. A patient in serious health condition obviously desire to live with dignity. More people than before decide to spend their final days at home. The extreme difficult situation a helper of this sort is in can be readily appreciated.
The defendant mentioned the worsen situation because of the visiting policy of the hospital during the pandemic. Whilst the court fully appreciates the need for social distancing measures adopted in medical institutions, such measures can at times magnify the agony in particular of those in need of palliative care. I believe the government and probably the Hospital Authority as well have been working on enhancement of facilities and measures to provide people in similar situation with the necessary flexibility, help and support.
The case also reminds us of the issue of whether legal provisions should be put in place to address the desire of those who are in similar extreme desperate situations. This is of course a matter which calls for very careful and thorough discussions amongst policy makers, experts in different fields and in the whole community. It is for the government to consider whether to orchestrate the way forward.
So defendant please stand up. For the reasons I have said, I impose a probation order of 12 months on you.
I have to advise you that if you fail to comply with the order or if you broke the probation order within the 12-month period, you will be sentenced again and the likelihood is that the probation order will be discharged. And if you commit any further offence during the probation period, the probation order may also be discharged and you will be sentenced again for the present case and you will be prosecuted for the further offence you commit. Do you understand, defendant?
ACCUSED: I do.