The defendant Lau Ka-wai pleaded guilty in the court below to two counts of aiding, abetting, counselling or procuring the suicide of another (Charges 1 and 2), contrary to section 33B(1) of the Offences against the Person Ordinance, Cap 212, and admitted the facts pertaining to the charges. The defendant confirmed his pleas of guilty and admission of the Summary of Facts dated 13 April 2022. The two charges concern the suicide of the defendant’s parents on 10 February 2021.
Facts
The Summary of Facts dated 13 April 2022 reads:
“The suicide of the Defendant’s parents on 10 February 2021
(1) D, D’s father Lau Shiu-bung (“D’s father”, aged 73) and his mother Hui Chui-fong (“D’s mother”, aged 66) resided together in a flat in Ho Choi Building, No 50 Yuen Long On Hing Street, Yuen Long, New Territories (“the Building”). The Building consisted of 13 floors and a rooftop which was not locked and could be accessed by residents.
(2) D worked as a driver in a company. At about 12 noon on 9 February 2021, female Yung, human resources manager of D’s company, received messages from D suggesting that he was planning to commit suicide with his family. Yung made a police report. Police located D. Yung was later told by officers that after conversation with D and D’s parents, the officers were satisfied that they were not going to commit suicide.
(3) Later at about 2239 hours on 9 February 2021, D again messaged Yung about his intention to commit suicide. Yung again made a police report. Yung was told by D that D was in financial difficulty. Officers visited D’s residence but no one answered the door.
(4) At about 0147 hours on 10 February 2021, further reports were received by the police concerning D’s father and D’s mother jumping from height from a local resident at the Building, from male Chung who was D’s friend, and also from female Ng who was a close friend of D’s mother. The latter two made a police report after receiving messages respectively from D and D’s mother which suggested they wanted to commit suicide.
(5) Chung made a police report because in the evening on 9 February 2021 and at about 0131 hours on 10 February 2021 Chung received WhatsApp messages from D suggesting that he was about to commit suicide. At about 0146 hours, Chung received a WhatsApp call from D saying that he had witnessed his parents jumping off the Building, but he himself was too scared to jump and asked for Chung’s company. Chung made a police report and went over.
(6) At about the same time, Yung also received a call from D who in crying voice told Yung that his parents had passed away, he was very scared and he wanted police to come. Yung informed the police.
(7) Fire Services and ambulance arrived at the scene at about 0153 hours with D’s father and D’s mother found lying on the podium of the Building, both in a pool of blood. D’s father had obviously passed away at scene while D’s mother was rushed to hospital but was shortly certified dead.
Enquiries at scene
(8) Officers arrived at about 0157 hours. At that time, D was found at the lift lobby on the Ground Floor of the Building. D was emotional and kept crying. D led officers to 13th Floor of the Building and walked to the rooftop via the staircase. The rooftop was surrounded with walls of about 1.5 metres tall. A chair of about 90 cm tall was found next to the wall which was facing the direction where D’s father and D’s mother were found. There was no sign of fighting or suspicious incident on the rooftop. A suicide note of D dated 7 February 2021 was found in the rubbish bin on the 13th Floor of the Building.
(9) Enquiry was made with D who expressed that he went to Hung Hom with his parents at about 2100 hours on 9 February 2021 for a last dinner. They returned to their residence after midnight. During the dinner, they talked about killing themselves together. At about 0139 hours on 10 February 2021, they arrived at the rooftop of the Building. D’s mother jumped off the rooftop first, followed by D’s father. D was too scared and abandoned the idea of jumping down.
(10) D was arrested and cautioned for ‘suicide pact’, upon which D stated ‘I did have an agreement with my family members to commit suicide, but at that time when I saw my mum had jumped down, just before my dad jumped, he said it was time for the two of them to jump. After I saw that, I was too scared that I did not dare to jump and abandoned the decision to commit suicide.’
(11) Search of D’s residence found, among other things, the followings:
(a) A suicide note of D’s mother dated 9 February 2021;
(b) HK$79,800 apparently belonging to D’s mother;
(c) Renminbi 2,500 apparently belonging to D’s mother;
(d) Bank passbooks of D’s mother;
(e) Mortgage documents;
(f) Insurance documents;
(g) An undated letter from D’s father to D;
(h) A suicide note of D dated 9 February 2021.
(12) Among other things, items 11(a) to (f) were shown to D who under caution stated that the items belonged to his parents.
Cautioned interview of the Defendant
(13) Between 1623 to 1820 hours on 10 February 2021, a cautioned video-recorded interview was taken with D, during which he stated, among other things, that:
(a) D lived with his parents, D’s father and D’s mother, in a flat in the Building.
(b) D has been in debt for 8 to 9 years with outstanding debt of about HK$500,000. He became in debt because of overspending and gambling.
(c) D had also borrowed HK$1.8 million from his ex-boss before, and had settled that debt with the help of his parents who sold their self-occupied property.
(d) D knew D’s mother had borrowed money from others to help him.
(e) D said D’s father suffered from chronic illnesses including heart and prostate gland disease while D’s mother suffered from knee problem.
(f) Since January 2021, D’s home received calls chasing him for repayment. D said he and D’s mother were harassed by moneylenders via WhatsApp by text messages, voice messages and photos.
(g) On 8 February 2021, D disclosed his financial difficulty to his parents. D said the idea of committing suicide together was raised by his parents because life was difficult given the financial situation. According to D, apart from the difficulty posed by D’s debts, his parents were also worried of the pain of illnesses they would have to endure as they become older. Instead of living in a difficult manner just to repay debts, they would rather die. D’s mother said the three of them were to live together and die together. All three of them agreed.
(h) On 9 February 2021, his parents did not go to work and instead the three of them went to have dim sum breakfast and went to the Peak to reminisce about the past.
(i) During the trip, D and his parents discussed about the way of committing suicide. Burning charcoal and jumping off building were discussed and D could not recall who made the suggestions in the first place. D’s parents preferred the latter by jumping off on the 13th Floor because it would bring a quick and certain death. D agreed.
(j) D disclosed to Yung about his intention to commit suicide on 9 February 2021 and Yung reported the matter to the police. D thus approached officers who also conducted enquiry with his parents. They then left and returned to Yuen Long for lunch.
(k) D’s parents attended to their own matters while D visited his girlfriend Tsang. They chatted for an hour between about 1615 to 1715 hours on 9 February 2021.
(l) In the evening, D and his parents went to Hong Kong Island intending to have dinner and to see the night view of Hong Kong. They later went to Hung Hom and returned to Yuen Long after midnight. During the course, D said he saw D’s mother receiving a call from his girlfriend Tsang but D’s mother did not answer the call because she had already made a decision and did not want to discuss.
(m) They returned home at about 0115 hours on 10 February 2021. They took a break and then went to the rooftop where they contacted close friends or relatives to inform them of their intention to commit suicide. D contacted his girlfriend by WhatsApp and he heard D’s mother calling her friend Ng.
(n) They then found a spacious corner on the rooftop. Using a chair on the rooftop, D and D’s father assisted and helped D’s mother to first climb onto the top of the surrounding wall.
(o) D and D’s mother then assisted D’s father to climb onto the top of the surrounding wall via the chair. At this juncture, D was still on the ground while D’s father and D’s mother were both on the top of the wall.
(p) D’s mother then first jumped off the Building.
(q) D then climbed onto the wall.
(r) D’s father then said to D ‘It is fine for just the two of us’ (meaning D’s father and D’s mother) to jump, you should remain here. Your pressure would be lessened and you should live your life well.’ D’s father then jumped off the Building, giving a loud ‘Bang’ sound.
(s) D said he was too scared and did not proceed to jump off. D returned to the ground.
(t) D explained that all three of them agreed to commit suicide and no specific sequence of jumping was decided beforehand.
(14) Autopsy of both D’s mother and D’s father revealed the cause of death was multiple injuries and it was remarked that the injuries were consistent with being produced by falling from a considerable height.
(15) D now accepts and admits that at the material time, he did unlawfully aid, abet, counsel or procure his father Lau Shiu-bung and his mother Hui Chui-fong to commit suicide.”
Antecedents of the Defendant
The defendant is 43 years of age. He was born in Guangzhou and came to settle in Hong Kong in 1990. He had completed Form 5 education in Hong Kong. He worked as a company driver earning $25,000 per month. Divorced in 2017, he resided with his parents at the Building at the material times. The defendant has a clear record.
Sentencing Authorities
The following authorities are placed before me for consideration by Mr Leung for the prosecution:
(a) R v Howe [2014] 2 Cr App R (S) 38
(b) R v Natasha Gordon [2018] EWCA Crim 1803
(c) R v Christopher Michael England [1990-1991] 12 Cr App R (S) 98
(d) R v Charlotte Helen Hough [1984] 6 Cr App R (S) 406
(e) R v Terrence McGranaghan [1987] 9 Cr App R (S) 447
I am grateful to Mr Leung for his assistance.
Mitigation
I have considered the oral and written mitigation submissions advanced by Mr Ching for the defence. The written mitigation submission of Mr Ching consists of 24 paragraphs.
What Mr Ching submitted in paragraphs 1 to 17 is basically a recital of the pleas, the Summary of Facts and the antecedents statement.
Paragraphs 18 to 24 read:
“(18) The defendant is of clear record. He is very remorseful and fully prepared to admit his fault before the court.
(19) His admissions to police fully reflects his remorsefulness and saves the investigation time.
(20) His guilty plea saves the court’s time.
(21) The defendant failed to commit suicide as planned out of the reasons as stated in paragraph 14 to 15 hereinabove. He blames himself for this and the loss of his parents is not to be compensated by any way (see: the defendants letter dated 1 July 2022, with English translation).
(22) The defendant is a Christian and during his remand he has the opportunity to take courses in Christianity. He is more faithful in his belief now and he promises the court he would live a new life. (See: letter by Pastor Lam Kai Hung dated 10 May 2022 with English translation and Life Changing Certificate of the defendant dated 26 July 2022).
(23) The defendant was remanded for about 18 months since 10 February 2021. He deeply regrets he could not attend the funerals of his parents. The first thing the defendant would do after serving his imprisonment term is to commemorate his parents’ graves.
(24) The defendant pleads guilty and entitled to one-third discount. He asked the court sentence him as lenient as possible and asked the sentence of both charges to run concurrently.”
Mr Ching did not cite any sentencing authority but he made oral submissions about the authorities placed before me by the prosecution.
Consideration
The offence of aiding, abetting, counselling or procuring the suicide of another is a serious offence, the maximum penalty is 14 years’ imprisonment. As the English Court of Appeal pointed out in Howe, section 2(1) of Suicide Act of 1961:
“...can be committed by either encouraging or assisting the suicide or attempted suicide of another. The necessary mental element is an intention to encourage or assist suicide or an attempt suicide. As far as intention is concerned, we note that the death of another person is in contemplation as opposed to serious harm. That is clearly a highly important factor inherent in the nature of the offence.”
In my judgment, the above observation applies equally to section 33B(1) of Cap 212.
In Charlotte Helen Hough, Lord Lane, speaking of the offence under section 2(1), said:
“In terms of gravity, it can vary from the borders of cold-blood murder down to the shadowy area of mercy killing or common humanity.”
As the court said in Howe:
“Clearly the resolution of cases coming before the court will involve a particularly fact specific examination.”
The following paragraphs in Howe are relevant:
“Before turning to this case we think it helpful to give guidance as to the relevant factors for a court to consider in dealing with this offence. The guidance we give relates to what can be described as face to face encouragement or assistance as opposed to cases involving remote encouragement over the internet, which may take the form of encouragement given to multiple individuals unknown to the encourager. That class of cases involves some different considerations from the present one and has features which may need to be addressed on another occasion.
Adopting the approach of section 143 of the Criminal Justice Act 2003 to a consideration of the seriousness of an offence by reference to the offender’s culpability and harm caused, we identify a number of non-inclusive factors of relevance, stressing the need for each case to be considered on its own facts.
As to harm, the most serious cases will be those where deaths resulted. Next in the scale will be attempted suicides where serious harm resulted. The court will need in addition to take account of adverse consequences for people other than the primary victim. In addition, if serious harm has occurred, the court should assess whether the harm has been resolved, or whether it will continue into the foreseeable future. Harm in the context will include psychological as well as physical harm. Risk of harm to others, as occurred in this case, will be a less serious but relevant factor.
At the bottom end of the harm range will be those cases where, despite encouragement with the necessary intent, the victim does not go on to attempt suicide. A little higher up the scale than that will be the case where a substance is provided with intent, but which in fact turns out to be harmless. There will clearly be cases fall between the levels of harm just described and the upper end of the range.
Turning to culpability, the court will need to consider a number of factors in deciding the level of the offender’s blameworthiness. They would include the presence of premeditation, persistence and the extent of encouragement provided or assistance given, and the means by which the suicide is to take place. The offender’s motivation may be important, with compassion at one end of the range and malice or the prospect of gain on the other. In this context the existence of a duty of care or trust may play a part in determining the extent of culpability.
A court should consider whether the victim had a settled, voluntary and informed intention to commit suicide, or whether his or her state of mind was less certain. Whether the victim solicited assistance or encouragement is relevant, as is the victim’s capacity to make a decision as to suicide. In this context, knowledge by the offender of the extent of any vulnerability of the victim will be important. Again, evidence of threat, pressure or persuasion applied to the victim will have a bearing on culpability.
Those seem to us be material considerations for a court in deciding where in the range of seriousness any particular offence lies. In those cases where the custodial threshold is crossed, we would envisage the range running from 3 years to 12 years or more where an attempt at suicide or actual suicide has taken place. Where the victim has not attempted suicide, but the offence has nonetheless been committed, there may be cases which do not cross the custody threshold, but that will very much depend on the circumstances of the case. Naturally, in any case once on(an?) assessment of seriousness has been made, the court will need to consider aggravating and mitigating features of a more generic nature.”
Returning to the present case, it was definitely not one close to “borders of cold-blooded murder” nor was it close to the “shadowy area of mercy killing or common humanity” as Lord Lane contemplated in Hough. The facts show that there was a suicide pact between the defendant and his parents. The defendant provided face to face encouragement and assistance resulting in the deaths of his parents.
In terms of premeditation, I note that the suicide pact was formed on 8 February and the parents committed suicide on 10 February. The parents were determined to commit suicide. I note also the encouragement provided or assistance given by the defendant; after the suicide pact was formed, he accompanied his parents to have their last meals, they went together to the Peak to reminisce and the defendant helped his parents to reach the top of the fencing wall where they jumped. I note also the defendant’s motivation, it was certainly not because of compassion nor was it because of malice or the prospect of gain. The defendant was certainly a person that his parents loved and cared, but he did nothing to stop his parents from killing themselves. Ironically it was the last words of the defendant’s father that helped to save the defendant’s life, that is, “It is fine for just the two of us” (that is, the defendant’s parents) “to jump, you should remain here. Your pressure would be lessened and you should live your life well.”
I note that the defendant’s parents were not vulnerable nor suicidal and did not have a history of depression prior to 8 February 2021. The facts show that they were financially strained and mentally fatigued at the time because of the indebtedness of the defendant. The defendant was heavily in debt because of his own overspending and gambling habit. The parents had been doing their best to help the defendant, they had sold their property and borrowed money from others to help the defendant.
I note the health conditions of the defendant’s parents prior to the fateful events, I note also the defendant’s parents had expressed their worries about the pain of illnesses they would have to endure as they become older, but the aforesaid health issues were not the primary reasons which caused them to end their lives. They wanted to die because they were fatigued and desperate as they were under a great deal of pressure as a result of their son’s financial problems.
I note that no threat, pressure or persuasion was applied by the defendant to his parents. The defendant was fully aware that his parents were in a state of despair throughout. He knew his parents had sold their self-occupied property to help him repaying his debt. He was aware that his mother had borrowed monies from others to help him. He knew that his mother had been harassed by moneylenders since January 2021. The defendant knew on 8 February 2021 that his parents wanted to commit suicide and a suicide pact was reached between the three of them. The defendant was all along aware of his parents’ determination to commit suicide after the suicide pact was reached on 8 February until the parents jumped in the early hours on 10 February 2021.
On the facts before me, I accept that the defendant’s parents each had a settled, voluntary and informed intention to commit suicide but the defendant, being a party to the suicide pact, did nothing to stop or dissuade his parents from killing themselves.
Mitigation letter written by the Defendant
I have before me mitigation letters written respectively by the defendant and Pastor Lam. The mitigation letter of the defendant reads:-
“To Your Lordship/Ladyship,
I, Lau Ka-wai, with the most sincere and remorseful heart write this mitigation letter for myself. It is hoped that Your Lordship or Ladyship could read it with care and with a sympathising heart give me a shorter sentence so I can go back to the society as a ‘not the same’ rehabilitated person as soon as possible.
Due to my meagre income in all those years, I used wrong values to deal with my monies, and I had to borrow money when my ends could not be met. Worse still, I developed an addiction to gambling. Even though I started to work as a part-time taxi driver at the end of 2020, it was still insufficient to repay the debts. Finally, before the Chinese New Year festival of 2021, the finance companies went after my parents, my girlfriend, and my company for repayment of my debts, leading to stress and emotional breakdown. When I told my parents about my intention of taking my own life, it triggered the happening of this case. However right after the incident happened, I felt very regret and immediately sought help from the Fire Services Department. Afterwards, during police investigation, I all along confessed and admitted the whole truth, and never any concealment of the slightest bit of the facts.
Subsequently, when I was charged and remanded in correctional institute, I continued to feel very regret about the path that I have treaded, and I repeatedly rethink and repent the values that I adopted in the past. Later on in the Centre, I once again picked up and pursued the Christian religion which I have put down for years. I even studied a theology course named ‘Life Changing Program and Disciple Workplace Leadership Bachelor Course’, hoping to strengthen and affirm my determination to change myself with my religious faith.
Due to my previous clear criminal record and years of experience working as a driver for a chairman of a listed company, I believe that I will find a proper job as an ordinary driver after I am released, and I would not cause trouble to the law and order of Hong Kong.
Your Lordship or Ladyship even though I deeply know that I have trespassed the law, I still hope that you could give consideration of my ‘all along’ confession and contrition. I am also willing to guarantee that I have walked out of my previous thoughts and values. Therefore, I urge that you could give me a shorter sentence so as to allow me to go back into a normal environment as soon as possible and start a new life, and to repay my girlfriend and her son who have always been by my side and have offered me lots of encouragement. I undertake that I will make all my relatives, my girlfriend and friends behold my change. Moreover, I am willing to participate further in training and services at church, combining my personal experience and knowledge that I acquired from religious courses to assist, entreat, encourage and support other people in need so that they would not repeat the mistake and illegal deeds that I have committed. Lau Ka-wai, signed, 1 July 2022.”
I quote the mitigation letter of the defendant in full for a reason. It is readily apparent in the mitigation letter that the emphasis is on the changes he has made, his cooperation with the police, his early plea, his readiness to live a law-abiding life on his release from prison and his plea for a lenient sentence.
I am not surprised by the aforesaid matters raised by the defendant in his mitigation letter and his plea for a lenient sentence. I am surprised however by the chilling absence of sadness and grief on the part of the defendant about the deaths of his parents, not only because they were his parents, but also because of the fact that it was he who strained them financially and drove them to a state of despair, plus the fact that he was a party to the suicide pact.
Against the aforesaid apathy or placidity shown by the defendant in his mitigation letter, Mr Ching conveyed to me in his mitigation submission the feelings of the defendant about the loss of his parents “...the defendant blames himself for this and the loss of his parents” and “The first thing the defendant would do after serving his imprisonment term is to commemorate his parents graves.”
Having said that, in sentencing the defendant, I would not take the apathy of the defendant shown in his mitigation letter as an aggravating factor.
All matters taken into consideration, in my judgment, a notional starting point of 6 years’ imprisonment after trial is appropriate for each charge.
For each offence, the defendant is entitled to one-third reduction for his guilty plea and clear record, that would bring the sentence for each offence down to 4 years.
Apart from the one-third reduction for the guilty pleas and clear record, I can see no other mitigating factor which can further reduce the sentence.
For the reasons given, on Charge 1, I sentence the defendant to 4 years’ imprisonment; on Charge 2, I sentence the defendant to 4 years’ imprisonment.
Totality
Two lives were lost in this case. In my judgment, it is wrong to order concurrent sentences when the case involved two deaths. In my judgment, a total sentence of 5½ years’ imprisonment should adequately reflect the overall culpability of the two offences. To achieve this end, I order 1½ years of the sentence of Charge 1 to run consecutively to the sentence of Charge 2. The total sentence that the defendant has to serve is 5½ years’ imprisonment.