COURT: The defendant was charged with one count of murder. He pleaded not guilty to the offence but offered to plead guilty to manslaughter. It was not accepted by the prosecution and the case proceeded to trial. By a unanimous verdict, the jury found the defendant not guilty of murder but guilty of manslaughter on the basis of provocation.
In sentencing, I have considered the whole circumstances of the case, in particular having regard to the facts of the case as revealed by evidence, background and circumstances leading to the incident, personal background of the defendant and mitigation put forward on his behalf.
The case took place some 10 years ago on 6 October 2011. The defendant was, at the material time, a married man with two sons. He was occupying a high-ranking position in a company which was engaged in sponsoring companies intended to be listed. He had an extra-marital relationship with the late Madam Chun.
Police started investigation after the brother of Madam Chun made a missing person report to the police on 16 January 2012. The defendant was arrested on 24 April 2012 and was unconditionally released on the following day. He was rearrested on 12 March 2014 and was eventually charged with the offence of murder.
Madam Chun was never found. Initially, the prosecution case based upon circumstantial evidence only. In particular, CCTV of the building where Madam Chun lived captured the defendant taking a nylon bag put on a trolley out of the building and the bag appeared to be full and heavy. And he had taken a lot of steps to conceal the matter.
This is the third trial the defendant stood. In the first trial, he took the stand of total denial and was found guilty of the offence of murder. He lodged an appeal which was successful, resulting in an order of retrial.
In the second trial, he admitted having killed Madam Chun but pleaded that it was a case of self-defence. He was again found guilty of the offence of murder. He lodged an appeal. It was successful and a retrial was again ordered. That the defendant had been found guilty in previous trials has no bearing at all to my assessment of his culpability.
In the present trial, the defendant admitted to have unlawfully killed Madam Chun and when he testified, he said he had disposed of her body at a refuse collection point on the day following the killing.
The case is to be considered in the following context. The defendant married his ex-wife in 2003 and the couple soon had two sons. Several years later, the defendant came to know Madam Chun at the nightclub where she worked. Eventually they started dating in 2008. Later, she stopped working in the nightclub and became an employee for a period of time of a company owned by the defendant. The defendant also bought a flat registered under the sole name of Madam Chun.
After she moved into the flat and lived there, the defendant paid frequent visits to her. He took out two insurance policies with Madam Chun being the beneficiary. He also made consistent financial provisions for her.
The affair was discovered by the wife in 2011 and he promised his wife to stop the relationship. He did tell Madam Chun of his desire to split, but he failed to prevent himself from seeing her frequently afterwards. After the wife had discovered the affair, the relationship of the couple turned sour. To cut the long story short, owing to this, the wife has two attempts of suicide and had to receive psychiatric treatment.
On the other hand, Madam Chun was also unhappy and her psychological health deteriorated. She was diagnosed shortly before the incident to be suffering from severe depression.
It was the evidence of the defendant that under such circumstances and coupled with the stress and anxiety created by the work which carried high level of responsibility and liability, his stress level was at breaking point.
A few days prior to the incident, knowing that his wife was having anti-depression drug and was under psychiatric care, he promised his wife to stop the relationship definitely with Madam Chun and would not see her anymore, even as friends. Not without much internal struggle, he decided to put an end to the matter and he went to the flat to have a talk with Madam Chun.
When he testified, he said that when Madam Chun learned about this, she lost her temper and said provocative words to him which related to every member of his family. She also threatened to take steps to destroy his family and make false allegations against him which would destroy his career. At the same time, she acted quite aggressively towards him. Before she did this, she pretended to jump from the window.
Under these circumstances of provocation, he lost his self-control. He had a struggle with Madam Chun and in the course of the struggle, pressed with strong force her mouth and nose as well as her throat. He said she died because of suffocation as a result of his acts.
There is no direct evidence as to how Madam Chun was killed, save for the testimony of the defendant. The verdict of the jury is indication that they found what the defendant said is true or maybe true. I therefore consider sentence on this factual basis.
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. Protection of human life is a foremost objective of our system of criminal justice. The court is under the duty to impose a punishment for unlawful taking of a life that is appropriate to the circumstances.
In my judgment, the conduct which the defendant performed on Madam Chun and caused her death involved a high degree of brutality. It was not a situation of causing death by a single blow in answer to provocation. Besides, judging from what the defendant described Madam Chun has said and done on the occasion, the degree of immediate provocation was not particularly high and by itself, I would say it was on the lower end of the scale. It, of course, when taken into account the accumulative effect on the defendant of the events preceding this incident was of a degree that the jury found that it was a case of provocation. And in considering the sentence I bear that firmly in mind.
I accept that this was not a case with premeditation. I do not see it was the wish of the defendant for Madam Chun to lose her life in his hands.
The case has a domestic context and requires an understanding of personal emotional stresses which had developed over time. Though, as the defendant had said, the situation might not have been so bad if he had handled the situation better.
I also bear in mind that the defendant had a clear record and there is evidence showing that he was a person of good character and personality and he excelled in his field of career. Because of this case, the defendant lost his career and family. This, however, carry little mitigating effect.
One matter relevant to consideration of the sentence is that the defendant had, prior to this trial, offered to plead guilty to the offence of manslaughter though it was not accepted by the prosecution. Strictly speaking, the defendant did not offer a guilty plea to manslaughter on the basis of provocation. At the beginning, the defence indicated that the guilty plea was offered on both the basis of provocation and unlawful act. But when the prosecution asked whether it was the stance of the defence that murderous intent was to be admitted, the defence indicated that the plea was offered on the basis of unlawful act.
As Ms Draycott put it during the trial, the defendant did not expressly admit having the murderous intent. When the defendant testified, he said he did not have the intent. Therefore the issue whether or not the defendant had the murderous intent has to be left to the jury to decide. That said, the focus of the defence case was whether or not it was a case of provocation.
In addition, I cannot disregard the fact that this was the third trial of the defendant and it was the first time provocation was raised. Even if the plea offered was on the basis of provocation, it was not a timely plea.
Owing to the above, in my judgment this is not a case where the defendant would have been entitled to the full customary discount when a timely guilty plea is tendered.
Having considered the whole of the relevant circumstances, I impose an immediate imprisonment term of 9½ years for the offence of manslaughter of which the defendant was convicted.