COURT: The defendant was charged with murder on the indictment for the allegation that on 25 September 2019, the defendant murdered his younger brother, Puk Wai-kan. The defendant offered to plead guilty to manslaughter but that was an offer that was rejected by the prosecution. After a trial that lasted 9 days, the defendant was acquitted of the offence of murder, but the jury unanimously convicted the defendant of the offence of manslaughter by reason of provocation.
The undisputed evidence at the trial, to which I sentence the defendant on, is as follows:
On the evening of 25 September 2019 at about 10.30 pm, the defendant then aged 62, killed his younger brother, then aged 60, at their home they shared in Fife Street, Mongkok. Their home was a small flat of the size of about 500 square feet. It comprised of two bedrooms, a living room, a small partitioned room from the living room, a bathroom and a kitchen.
At the time of the killing, the defendant was a general handyman in a Chinese restaurant, and the younger brother, the deceased, was an electrician and a plumber. The defendant’s wife and mother were at the flat at the time of the killing and witnessed the defendant and the deceased arguing and fighting each other with household objects.
The deceased and the defendant did not have a good relationship ever since childhood. When the defendant came to live in Hong Kong in 2013, the deceased had already lived in Hong Kong for many years. The deceased lived at the flat, then with their parents and his family of four.
When the defendant came to Hong Kong, he too lived at the flat with his parents and the deceased’s family of four. During this time, the defendant and the deceased shared the utility bills equally. A few years after the defendant came to Hong Kong, the deceased’s wife and two sons moved to live in a flat in Kwai Chung. The deceased remained living in the flat.
In 2017, their father had passed away. The defendant, the deceased and their mother then continued to live in the flat. Their mother occupied one bedroom, the deceased occupied the other bedroom whilst the defendant occupied the partitioned room off the living room which he had occupied, in fact, since his arrival to Hong Kong.
Although the defendant and the deceased lived in the flat together, they lived separate lives. The deceased used the kitchen to cook, whilst the defendant cooked on a small stove on a folding table in the living room. They did not talk to each other. As they did not talk to each other for the defendant’s payment of the utility bills, the deceased left the utility bills in the living room in a prominent place for the defendant. Upon the defendant seeing the charges on the bill, the defendant would pay for half of the charge by leaving cash on top of the bill. The deceased would collect the money the defendant left and pay the utility bill.
In December 2018, the defendant married a lady called Kwan in Hong Kong. Madam Kwan was from the Mainland. In March 2019, Madam Kwan obtained a two-way permit and was able to stay in Hong Kong for three months each time.
In March 2019, the defendant’s wife stayed in the flat with the defendant, the deceased and their mother until June 2019, when she returned to the Mainland. From this time onwards, the mother voluntarily moved to live in the partitioned room off the living room so that the defendant and his wife could occupy the bedroom, which had a larger bed. The deceased continued to occupy the other bedroom.
The relationship between the deceased and the defendant turned worse in or around March 2019, when the defendant’s wife commenced living at the flat, because the deceased wanted the utility bills to be paid per head. He wanted the defendant to pay more than the half share, as the defendant’s wife was now living at the flat.
The defendant, however, continued to contribute equally to the utility bill. From about June 2019, the deceased refused to collect the money left as the defendant’s half share paid for the utility bills. The deceased was unhappy that he was paying half the charges as he wanted the defendant to pay for charges for the defendant himself, their mother and the defendant’s wife.
On the evening of 24 September 2019 at the flat when the defendant was out, the deceased left the electricity bill of $1,414 on a cabinet in the living room. The defendant left cash of $720 on the bill upon his return home. The next morning, on 25 September 2019, whilst the defendant and the deceased were out for work, the defendant’s wife saw both the electricity bill and the $720 were still on the cabinet.
The defendant’s wife went out and when she returned home at about 1745 hours, the deceased was at home. She noticed that the electricity bill had been taken, but the $720 remained on the cabinet. That evening, the defendant joined his wife at a dinner after work, and they both returned home shortly before 10.30 pm.
When they returned home, the mother gave them two hand-held fans and said the flat’s electricity was not working. The mother said earlier on, even though the deceased apparently had fixed it, there was only the electricity supply on in the living room. The mother complained that there was no electricity to boil water, nor for her to have a shower and none in her bedroom.
The defendant went to the mains electricity supply in the kitchen and noticed that the switches were off. He then flipped them up to turn the electricity on. However, there was still no electricity. The defendant saw there was light in the deceased’s room. The defendant therefore believed that the defendant had cut off the electricity.
The defendant knocked on the door of the deceased’s room. The deceased came out and asked what was the matter. The defendant accused the deceased of switching off the power supply. There was then a dispute between the brothers about the ratio of payment of the utility bills to be shared between them.
The wife of the defendant heard the defendant rebuke the deceased for including their mother in paying for electricity. The deceased accused the defendant of not being able to afford the utility bills, and as a consequence, the electricity was cut off. The defendant told him he had all along paid his share for the bills.
In the heat of the dispute, the deceased pushed the defendant, causing the defendant to bump into the dining table in the living room, which accidentally hit their mother sitting nearby. This caused the defendant to fall on to the ground. The defendant and the deceased then hit each other with fists and the defendant’s wife tried to intervene to stop their fighting.
The fight continued whereby the deceased grabbed a stool from his bedroom and hit the defendant’s head, whilst the defendant took a glass lid of a pot to hit the deceased who warded it off with the stool and the glass lid broke into pieces. Thereafter, the deceased and the defendant each held a leg of the stool with one hand.
As the mother had tried to stop her sons from fighting, the deceased’s wife went to settle their mother on the sofa. She then realised the defendant and the deceased had both entered the deceased’s bedroom and the door was closed. The wife heard banging and fighting inside the deceased’s room. About three minutes later, the defendant came out of the deceased’s bedroom with a blood-stained fruit knife in his right hand. There was also blood on the defendant’s forearms and calves.
The defendant told his wife to call the police as he had stabbed and injured the deceased. He told his wife that he would surely go to gaol. The defendant told his wife to call his boss that he would not be back at work.
The police arrived at the flat. The police officer arrested and cautioned the defendant, and he admitted injuring the deceased with a knife. At the flat, the defendant told the police he did not need to go to the hospital for treatment, as he had suffered only minor or superficial cuts on three fingers on his left hand and on his chin. The police officer saw the deceased lying in a pool of blood in the deceased’s room.
An autopsy was conducted by the pathologist, Dr Chiao Wing-fu on 29 September 2019. The pathologist found a total of 36 separate stab and cut wounds on the deceased’s body. He opined that five of the stab wounds have been fatal. One of the wounds revealed two internal wound tracks. Dr Chiao found the cause of death to have been caused by profuse bleeding and respiratory dysfunction resulting from the multiple fatal stab wounds to the neck, chest, abdomen and back.
The next day, the defendant’s wife and the deceased’s mother, aged 40 and 88 respectively, gave witness statements to the police. The defendant’s wife’s statement was taken about five hours after the incident at 3.15 am, whilst the mother’s statement was taken at 6 pm. They were not called by the prosecution as witnesses in the trial, but their witness statements were admitted as evidence under section 65B. Their evidence concerned the background of themselves, as well as evidence relating to the incident between the defendant and the deceased on the evening of the killing, and between themselves, the defendant and the deceased.
On the day following the killing, in the early evening of 26 September, the defendant took part in a video-recorded interview. The defendant gave evidence at the trial and adopted the statements he made in the video-recorded interview. In the video-recorded interview, he gave a detailed account of his relationship with the deceased and the disputes over the utility bills between him and the deceased. He also explained what happened on the day of the killing.
He said he and the deceased were quarrelling. This escalated to a physical fight after the deceased pushed him over. They then fought with household objects and the deceased grabbed a knife to attack him, so he grabbed a knife to defend himself. He said that they fought each other with knives in their hands and he admitted to stabbing his brother twice in the abdomen, after he warded off his brother’s knife attack. He said at the time he had no intention to kill his brother, that he was acting in self-defence.
In the video-recorded interview, the defendant gave a detailed account of his poor relationship with his brother, as well as the reasons why this was so. The defendant said the deceased was selfish, arrogant, greedy and condescending. The deceased had looked down upon the defendant as he suffered from polio since he was 2 years old. And also, for many years, was a poor peasant farmer in China whilst the deceased was well off as an electrician and plumber in Hong Kong.
Further, the deceased was not a filial son and ill-treated or poorly treated their mother. The defendant said the deceased was arrogant, that he did not appreciate the defendant’s acts in helping the deceased overcome difficulties in China and assisted the deceased in coming to live in Hong Kong. The defendant had said he was the eldest son and he should have to come to Hong Kong before the deceased.
The defendant said, in the video-recorded interview, that he had never revealed this story to anybody, but the deceased had been accused of causing the death of a female as she had drunk pesticide in their house. The defendant had effectively assisted in taking this female to hospital, which was a day’s trip away from their home by boat, settled everything with the female’s family, including compensation with them, the female’s family. The defendant had even begged the female’s family not to sue the deceased or send the deceased to prison.
In the circumstances, he the defendant, was the one who assisted the deceased to come to Hong Kong first, before himself, to avoid the deceased’s family members. The defendant gave varying accounts of how the deceased was greedy and unreasonable, and how the deceased’s primary concern was money.
He gave accounts of how the deceased treated his parents poorly, particularly ill-treating his mother. Whilst, on the other hand, he treated his mother well. The mother’s evidence supports the defendant on his account of the deceased’s ill-treatment of her and the defendant’s good care of her. The mother gave examples of how the defendant and the deceased treated her. The mother described the defendant as a good-tempered person, whilst the deceased had a bad temper.
The defendant also described the deceased as someone who had taken all the assets and savings after the father’s death without sharing it with him or his mother. In the defendant’s evidence in court, his supplemented oral evidence, he supplemented what he explained in the VRI and what happened when he arrived home on the evening on 25 September to find there was no electricity supply in the flat. The defendant told the deceased he would get someone to fix the electricity the following day, but the deceased yelled at him and told him not to dare, and if he did, he would beat him to death or find someone to beat the defendant to death. In the meantime, he insulted the defendant by calling him a cripple. The deceased was offensive to the defendant.
He described how the fight started and escalated and that the situation at the time was chaotic and confusing. He said he did not remember much of what had happened. He said he had lost his self-control and that it had become unbearable for him.
From the verdict of the jury, they have found that the defendant had suddenly and temporarily lost his self-control and did not know what he was doing because he was blinded by rage and therefore caused the multiple injuries on the deceased. The cuts and wounds were all over the deceased’s body. They were not concentrated in one area and therefore, this supported the defendant’s case that this was a frenzied attack upon the deceased because the defendant suddenly and temporarily lost his self-control.
Ms Crebbin for the prosecution and Mr Khosa, have submitted to me a number of cases in relation to sentencing in manslaughter by reason of provocation cases. As manslaughter can be committed in infinitely variable ways, none of the cases submitted are not of much assistance, save to matters of principle.
In this case, the jury appeared to have accepted that the killing took place as a result of a provoking event, which was the cutting off of electricity in the flat and the words and conduct of the deceased, taking into account the history of the deceased’s relationship with the defendant.
The defendant had multi-layered issues with the deceased that developed over time. They were not on good terms since they were young. The defendant suffered from polio from an early age. He had frequently been taunted about him being a cripple by the deceased and others. He was taunted again on the day of the killing about his physical deformity.
Mr Khosa had said in his closing speech to the jury, which they must have accepted, all these things had been bottled up over the years and had come to a head and exploded that evening, and for that reason, the defendant lost his control.
It is clear to me that the defendant had been accommodating and dealing with the deceased over everything until that night it just became unbearable. Circumstances had forced the deceased and the defendant to live together in the flat. Whilst in the small flat, they continued to live separate lives with no communication between them. The defendant had witnessed and endured the deceased’s poor treatment of his mother, despite her being the owner of the flat and living there.
There was a long-standing punitive provocation to which the defendant was subjected to. The defendant was a deeply devoted son to his mother who admitted to, in fact, marrying his wife on the condition, which his wife accepted, so that the wife could look after their aging mother because he was busy at work and the deceased and his family did not care for her.
When the defendant returned home on the evening of the killing, he heard the mother complaining about there being no electricity and suspecting that her son, the deceased, had cut it off. She was left on her own, whilst the deceased was in his bedroom.
I do have sympathy for the defendant in that he truly feels remorseful for killing his brother, someone he clearly had no relationship with, but was someone the defendant had been tolerating for all these years because they were brothers.
I understand and feel the sympathy that the deceased’s family have lost a husband and father. I have taken into account that a life has been lost. I have taken into account the extent of the provocation that was involved in this particular case.
The defendant was educated up to primary school level. He is a man of clear record. At the time of the killing, he was 62, and as at today, he is 66 years of age. I have taken into account the letters submitted to me in mitigation by Mr Khosa today, by the defendant’s mother and wife and himself. The defendant was, it is apparent, according to his mother, a person of good temper.
When the defendant testified before the jury, he raised the issues of self-defence, lack of intention to kill or cause serious harm and provocation. The jury were not informed of his plea of guilty to manslaughter by provocation. Although Mr Khosa did not make any reference to self-defence in his closing speech, it was in the circumstances open to the jury to find the defendant had acted in self-defence and to acquit him of murder. Upon the jury’s verdict, those defences were rejected by the jury. The jury accepted the defence of provocation.
This is a case where the killing originated from a quarrel to a fight with weapons, then an escalation of violence using knives, which the deceased had started. It was an escalation of violence to which both brothers had participated, and as Mr Khosa said in his mitigation, the incidents happened quickly, fast and were heated. They were reacting to the escalated environment without much thought, as angry people would do.
Taking into account all the circumstances of this case, I consider that the appropriate starting point for this case is one of 9 years’ imprisonment. On the issue of discount, as the defendant fought the case on the basis that he is not guilty of any homicide, something less than the full one-third discount is normal. This principle was adopted and rehearsed by Macrae VP, Vice President, in HKSAR v Leung Yuk Ping [2019] HKCA77. He confirmed the principle at paragraphs 18 and 19.
At paragraph 18, Macrae VP said:
“In respect of the appropriate discount, Mr Liu referred to the definitive statement of principle explained by the Appeal Committee of the Court of Appeal in Sze Kwan Lung & Ors v HKSAR, FAMC 1 & 2/2004 (unreported) per Bokhary PJ at paragraph 1. He states:
“Sometimes, a defendant who faces a murder charge offers to plead guilty to manslaughter. If his offer is rejected by the prosecution, he has a choice. He can fight the case on the basis that he is not guilty of murder but guilty of manslaughter, or he can fight the case on the basis that he is not guilty of any homicide. There is a considerable difference between these two courses. If the defendant is convicted of manslaughter after pursuing the first course, the full one-third discount of sentence for a plea of guilty is normally given. But if he is convicted of manslaughter after pursuing the second course, something less than one-third discount is normal.”
At paragraph 19, he goes on to say:
“This statement of principle which resonates with the present case has subsequently been applied by the Court of Appeal in HKSAR v Francisco Rinaldo [2003] 3 HKLRD 688, in HKSAR v Yau Kit Keung [2010] 6 HKC 473 and HKSAR v Wong Kam Shing, Jackie [2010] 4 HKC 580.”
In Yau Kit Keung, the court reiterated at paragraph 37 that:
“If a defendant is convicted of manslaughter, having pleaded not guilty to any form of homicide, then depending on the circumstances, it is open to the judge to determine whether any form of discount is warranted.”
That is emphasis supplied by Macrae VP.
In the present case, although the defendant pleaded guilty at the outset to manslaughter by reason of provocation, at the trial he fought the case on the basis he was not guilty of any homicide. In the circumstances, a full one-third discount is not warranted.
I accept, however, he pleaded guilty to manslaughter by provocation, and I will give him a discount of less than one-third, amounting to approximately 16.7 per cent.
So, taking 9 years as the starting point and reducing that term by approximately 16.7 per cent, the defendant shall be sentenced to 7 years and 6 months’ imprisonment.