HKSAR v. Ho Shing Kwong

CACC000180/1997

IN THE COURT OF APPEAL

1997, No. 180
(Criminal)

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Coram: Hon. Power, V.-P., Mayo, J.A. and Wong, J.

Date of hearing: 24 July 1997

Date of judgment: 24 July 1997

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant was charged with manslaughter. It was particularized that on or about 3^rd August, 1996, at Yee King Building, No.67E Waterloo Road, Kowloon, he unlawfully killed Yang Pei-li. Yang was the wife of the applicant. After initial denial, he admitted when being arrested that he had been responsible for the death of his wife. He pleaded guilty before Leong J. and was sentenced to imprisonment for 6 years. He now seeks leave to appeal against that sentence.

2. The admitted facts revealed that at about 1:30 a.m. on 3^rd August, he had been awoken from his sleep by the deceased who asked for money so that she could pay miscellaneous amounts owing. He told her he did not have the money and that she should not be bothering him and went back to sleep. At about 3:25 she woke him again and he again told her he did not have any money. He went to the toilet, she, apparently, became agitated and then attacked him scratching him. There was struggle, during which he picked up a wooden stick and hit her on her head. She fell to the floor and became unconscious, blood coming from her nose. The applicant said he felt her nose and found she was not breathing. He then used her trousers to tie around her armpits so that he could drag her out of the home. He took a lift to the 2^nd floor and he pulled her down one floor to the 1^st floor by the staircase. While so doing and in order to facilitate the movement of the body, he removed her trousers and tied them around her neck. Upon reaching the first floor, he deposited the body there and went home. It seems that at 5:45 a.m. he went off on his usual morning stroll.

3. The cause of death was ligature strangulation which resulted from the tying of the trousers around the deceased's neck.

4. The applicant had, it seems, a relatively normal family background but on the night of the occurrence and for some time prior thereto his wife had been quarreling with him about telephone calls which he was receiving from women. He told her, he says, that these were from clients of his real estate business. It was submitted in mitigation that:

"They struggled inside the toilet. He asked her to stop beating him. She ignored him and even squeezed his lower part or attempted to do so. He felt great pain. He picked up a wooden stick offhandedly and intended to hit her arm. She dodged and he unintentionally hit her head. She fell on the ground and her nose bled."

"The accused became panic-stricken and believed his wife had died...."

At that time he believed she had died because he picked up a stick to defend himself, aimed to hit her arm, she dodged and he hit her head instead So he was trying to defend himself but when he hit her head he saw no blood coming from her nose and found that she was not breathing. He thought she had died. And he became panic stricken and believed she had died. He used some trousers to pull her, including dragging her using trousers to tie her neck. At one stage he was about to telephone for help but in his panic and state of shock he tried to hide the incident."

His behaviour was characterized by defence counsel as reckless and it was said that he was thoroughly remorseful.

5. The trial judge accepted his good family and good work background. He had been a seaman and had achieved the rank of Chief Engineer before retirement. He then became a real estate agent. It was accepted also that he was remorseful. The trial judge, when sentencing, made the following observation:

"However, the taking of a life of another person must never be viewed lightly. This is not a case of an accident where a non-custodial sentence may be justified. But in your circumstances an immediate custodial sentence must be the appropriate course when sentencing a case of this nature.

Taking the most lenient view, having regard to what I said earlier and the appropriate sentence I shall be imposing will be one - must be appropriate to the circumstances.

So I impose a sentence of six years' imprisonment."

6. It is submitted that the judge when imposing this sentence failed properly to weigh that the criminality was not of a high degree, to give adequate consideration to the real mitigating factors and to give due account to the remorse exhibited by the applicant. We have considered the submissions of Mr. Buchanan, who appears today as he did below for the applicant. In our view what occurred was a wickedly callous offence. The reaction of the applicant was not to call for help for his injured wife but to get rid of what he believed to be the lifeless body. There was no attempt to give dignity to her demise. She was left like a half naked mannequin, indeed that was what neighbours thought she was, on the first floor staircase. A moment's human consideration would almost certainly have avoided her death. The judge rightly regarded this as a serious case of manslaughter. The sentence was severe but it is not one with which we could properly interfere.

7. The application must, therefore, be dismissed.

Representation:

Mr. I.G. Cross, S.C. & Ms. Denis Chan (D.P.P.) for the Respondent.

Mr. Buchanan assigned by Director of Legal Aid for the Applicant.