HKSAR v. Iu Wai Cheung

HCCC 163/2023

[2024] HKCFI 3487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 163 OF 2023

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REASONS FOR SENTENCE

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Charges

1.The defendant IU Wai-cheung faced 3 counts of Murder[1] and one count of Arson with Intent[2] arising out of an incident that took place on 12 July 2021, at the sub-divided room (Room B)  he was then sharing with Wen Jufeng (Wen)  and her two daughters Lai Mengxin (Lai)  and Liao Shuk-wun (Liao).

2.The defendant pleaded not guilty to all four counts.

3.The defendant offered to plead guilty to manslaughter of Wen on the basis of provocation, and for Lai and Liao, on the basis of an unlawful and dangerous act. His offer was not accepted by the prosecution and a trial took place.

4.After the trial, of the three counts of Murder, the jury by majority found the defendant guilty of manslaughter by reason of provocation, and for the Arson with Intent charge, the jury unanimously found the defendant guilty.

Facts of the case

5.The defendant was aged 62 at the time of the offences. He was a widower. Wen was aged 42 and was a housewife relying on CSSA[3]. Wen’s older daughter Lai was then aged 13, and her younger daughter Liao was 8.

6.According to what the defendant had told the police during the two video-recorded interviews, he and Wen came to know each other at the same mahjong parlour they frequented. They became romantically involved in 2020 and the defendant moved in to live with Wen and the two girls.

7.In the early hours of 12 July 2021, the defendant used a chopper and inflicted 118 cut wounds on Wen, 36 cut wounds on Lai and 6 cut wounds on Liao. He also set fire to Room B.

8.Neighbours of Wen heard the commotion and smelt the burnt smell emitting from Room B. Reports were made to the police. In the meantime, Mr Chen Zhuohui (PW3)  who lived in Room C, together with another neighbour, kicked open the door of Room B, despite the obvious danger. Mr Chen shouted for persons inside to come out. Liao was heard responding by saying she would not come out, she would stay with her mother.

9.The defendant was later seen having come out of Room B and was in an emotional state. He was taken to hospital for treatment for inhalation of fire fumes.

10.While the firemen were busy putting out the fire and dispersing the smoke, they noticed three persons lying on the floor after debris and a wooden plank covering them were removed. All three were facing upwards, with Wen on the bottom, Lai lying on top of Wen and the youngest one Liao lying on the uppermost. According to the fireman Ah Yu (PW11), the youngest one’s posture was as if she was trying to escape.

11.None of the three exhibited any signs of life at the scene and they were all certified dead after being conveyed to hospital.

12.Autopsy conducted by the forensic pathologist Dr Tsang (PW19)  showed that Wen had 118 cut wounds, Lai had 36 and Liao had 6. They all inhaled fire fumes indicating that they were still alive when Room B was on fire. The level of carboxyhaemoglobin in Wen’s case was 25%, in Lai 34% and in Liao 66%. For Wen and Lai, the cause of death was multiple cut wounds and inhalation of fire fumes. In the case of Liao, however, as the carboxyhaemoglobin in her body was 66% (a lethal level), Dr Tsang put inhalation of fire fumes ahead of multiple cut wounds as the cause of death.  

13.In Dr Tsang’s opinion, as Liao received fewer cut wounds, though four of them were on her head, she would have bled less as compared to her mother Wen or sister Lai, and was alive longer, hence she would have breathed in more carbon monoxide, other toxic substances and hot air. The inhalation of the fire fumes by itself was enough to kill her.

14.As for the evidence supporting provocation, they came from the defendant when he answered questions from the police during the video-recorded interviews.

15.The defendant described how he had spent a lot of his savings on Wen and Wen’s family during the time they were together. His liaison with Wen was not approved by his own grown-up children. He even hit his own daughter twice who had advised him not to be together with Wen (this part of his evidence was supported by his daughter in court). For the past two months prior to the killing, Wen had repeatedly told him that he was old and penniless, that she would look for someone younger and richer and told him to go back to live with his “crazy daughter”. Wen also blamed the defendant for bringing her bad luck, making her lose in gambling. The defendant complained that Wen was sexually active with him when they were first together, but on 12 July 2021, his request for sexual intercourse was rebuffed by Wen. Thereafter, however, Wen went on to tease him by caressing him until he was hard while she herself was watching something on her mobile phone. After the defendant went to the toilet to relieve himself, he was standing at the doorway of the toilet when Wen asked him why he did not come to bed, saying that he was crazy. Wen asked him whether he wanted to chop her with a chopper or knife. The defendant said he was not holding any knife at the time when Wen said that. Not only that Wen accused him of wanting to chop her with a knife when he was not armed, Wen even called someone on her mobile phone, telling that other person that the defendant wanted to chop her. After Wen called off, she said to the defendant that she was faster to get a knife to chop the defendant. Upon hearing that, the defendant went to the kitchen to fetch a chopper and attacked Wen. He said at the time of the attack, he also recalled Wen having said to him that she had another man outside, making him a cuckold. The defendant said he completely lost control and chopped Wen. He said he did not know how the two girls came to have cut wounds on them, but he did say that both girls had come to protect their mother Wen when he attacked her. As to why he set fire to Room B, he said he wanted to die with Wen. On a couple of occasions the defendant actually said he wanted all four of them, all of them to die. He said in the end he could not stand the smoke so he got out when he heard the firemen had arrived.

16.The jury’s verdict on the murder count relating to Wen, finding him guilty of manslaughter by reason of provocation, suggests that they found that the defendant was or might have been provoked by Wen when he intentionally killed Wen, thus reducing murder to manslaughter.

17.The jury’s verdict of manslaughter by reason of provocation on both girls is not as straight forward.

18.The prosecution case proceeded on the basis that the defendant unlawfully killed Lai and Liao, with the intention to kill or to cause them really serious bodily harm. The prosecution relied heavily not just on the number of cut wounds sustained by the two girls, but the fact that the defendant did a separate act of setting fire to Room B, when all three deceased, in particular the young Liao, were still alive.

19.In my direction to the jury, after explaining the law of provocation to them, I specifically directed them that the provocation does not have to come from the deceased, and that an intention to kill or cause really serious bodily harm can be transferred to kill another person inadvertently.

20.After the verdict, defence counsel Mr Phil Chau SC leading Mr Martin Li submitted that the jury must have found the defendant did not have the intention to kill or cause really serious harm to both girls, that the killing was accidental, hence the doctrine of “transferred intention” kicked in and the provocation by Wen to reduce the murder of Wen to manslaughter also applied to both girls.

21.The prosecution took a contrary view. Relying on the evidence which I have already outlined, the prosecution submitted that the defendant clearly intended to kill or at least cause the two girls really serious bodily harm when he not only chopped them repeatedly, but also set the room on fire, without doing anything to rescue the two girls. Furthermore, the jury unanimously found the defendant guilty of Arson with Intent to endanger the lives of all three deceased. The basis of unintentional or accidental killing does not sit well with the evidence at trial.

22.Having considered the submissions, I agree with the submission of the prosecution that the basis of unintentional or accidental killing does not sit well with the evidence before the court. When one considers the number of cut wounds sustained by both girls, it is hard to accept that the defendant did not know he was chopping the girls as well when he chopped Wen resulting in 118 cut wounds on her. More importantly, according to his own admission, Wen and the two girls were cuddling on the lower bunk (though the evidence clearly showed that the three were found lying on the floor by the firemen). The point is that the defendant knew all three were still alive and cuddling each other when he set fire to the room. Not only that he had said on more than one occasion that he wanted all four of them to die together, indicating his intention to kill the girls as well, he told the police that while he was attacking Wen, Wen had told him she would stay with him and asked him not to attack her, whereupon he said that it was too late; that he had chopped her already.

23.I am of the view that the jury must have found that the defendant was provoked by words and acts of Wen into killing, not just Wen, but both girls as well. I will therefore sentence the defendant for the manslaughter of Lai and Liao on this basis.

Background and mitigation

24.During the trial the background of the defendant was already made known. The defendant is now aged 65. He was 62 at the time of the offences. He came and settled in HK in 1980 and got married in 1981. He worked as a construction worker. He was able to save enough money with his wife to purchase a flat under the Home Ownership Scheme. His wife passed away in 2019. He has an adult son and daughter. He was living with his daughter at the said flat until he moved out to live with Wen. His relationship with Wen caused his estrangement from his own children.  His retirement savings had, according to the defendant, been spent to a large extent on Wen and her family.

25.The defendant has a spent conviction of Gambling in a Gambling Establishment for which he was fined $500 in 2016.  For the purpose of sentence I will not take this spent conviction into consideration.

26.I have already indicated that I am not with Mr Chau and Mr Li when they submitted that the basis of sentence should be on “transferred intention”. Nevertheless, I do take into account the fact that the defendant has offered to plead guilty to manslaughter and I accept that he is genuinely remorseful.

27.As for the Arson with Intent charge, the defence team submitted that the defendant was acting under a loss of self-control when he set the fire in motion. Consistent with their earlier submission on “transferred intention”, Mr Chau and Mr Li submitted that the intent to endanger life was limited to Wen.  I must reject such a submission as I do not agree this is a case of “transferred intention”. Nevertheless I take into account there was no pre-meditation shown here. There was no accelerant to spread the fire and the actual damage to the property was rather limited and confined.

28.The defence team submitted that the offences of Manslaughter and Arson with Intent overlapped to a material degree, with the killing of the three subsumed under the three manslaughter counts, with the only criminality reflected in the Arson with Intent count the limited damage to the property and the risk the fire posed to others in the building and the rescuers.

29.The defendant’s brother, daughter and son wrote to me, asking for leniency. They all mentioned what a generous and helpful person the defendant was, how he took care of his late wife while she was very sick, and how he was a responsible father and good grandfather. They all commented on the defendant’s deep remorse and ask this Court to pass a lenient sentence so that he could spend the rest of his life with his family.

My consideration of the sentences

Manslaughter

30.For the offence of manslaughter, a person convicted of this offence on indictment is liable to be sentenced to life imprisonment.[4]

31.Whilst both the prosecution and defence referred me to a number of cases involving the sentence for manslaughter, with many of them in a domestic context (such as HKSAR v Yip Kai Ming[5]; HKSAR v Li So Man[6]; HKSAR v Lam Chun Fai[7] and HKSAR v Chan Man Sum Ivan[8]), I do not find comparisons with other cases at all helpful.

32.In the case of HKSAR v Yau Kit Keung[9], the Court of Appeal made it clear there was no “customary range of sentences of between three and nine years” for manslaughter by reason of provocation arising out of a domestic context. The Court of Appeal further said that the circumstances in which manslaughter occurs in the context of domestic confrontation invariably encompass an infinite variety of factors, to which I respectfully agree.

33.The prosecution referred me to the case of HKSAR v Liu Kwai Wing[10] and its related case HKSAR v Cheung Chi Him, Herman & Others[11]. Liu gave orders to his triad subordinates to burn a shop in Mongkok. One victim died and two sustained injuries, one of them was permanently disfigured. Liu’s conviction of murder was quashed by the Court of Appeal and a conviction of manslaughter was substituted. The Court of Appeal adopted a starting point of 24 years. For the accomplices (D1 and D3), they pleaded guilty to manslaughter and other charges, the trial judge adopted a starting point of 24 years for the manslaughter count. Court of Appeal did not disturb the sentence.

34.In my view, arson resulting in the death and serious injuries of persons in a revenge attack by triad members is very different from a killing arising out of a domestic context. I will bear in mind that a starting point as high as 24 years will not be appropriate in the present case.

35.What I need to do is to look at all the circumstances of this case, including the nature and method of killing and the extent of provocation to gauge the degree of culpability on the part of the defendant.

36.In my view, the killing of the three persons – a 42 year old mother and her 13 and 8 years old daughters, by means of inflicting multiple cut wounds on them, and subjecting them to the inhaling of fire fumes, are much more serious, much worse, than those cases involving the defendants killing the victims by suffocation (e.g. Yau Kit Keung and Lam Chun Fai).

37.Even with a prolonged suffocation, such slow death is not comparable to a victim being chopped multiple times resulting in many cut wounds – rendering the victim bleeding profusely and obviously in great pain, and then subjecting the victim to the inhalation of fire fumes while the victim was still alive. There was a high degree of brutality involved in the killing of the three.

38.Whilst I have to accept, by reason of the jury’s verdicts, that the defendant was provoked by Wen to kill Wen and her two daughters, I do not agree with defence counsel that the provocation was in its extreme, though I would not say the provocation was trivial.  

39.In my view, the sentence has to reflect the fact that the defendant took away the lives of three persons, one as young as 8 years old. This Court has a duty to impose an appropriate sentence in the circumstances.

40.Having considered all the circumstances, regarding the killing of Wen, I am of the view that a starting point of 12 years is appropriate. The defendant did offer to plead guilty to manslaughter by reason of provocation after the case was set down for hearing but before the trial. He was found guilty by the jury on this exact basis. I will give the defendant a 25% discount (in accordance with the case of Ngo Van Nam[12]). With this discount the sentence is 9 years.

41.In respect of Lai, bearing in mind all the circumstances, including the extent of injuries she suffered (36 cut wounds and inhalation of fire fumes), that she was killed intentionally by the defendant because of the provocation caused to the defendant by her mother Wen, I am of the view that a starting point of 12 years is also appropriate in her case.

42.Whilst the defendant did offer to plead guilty to manslaughter, it was on the basis of an unlawful and dangerous act, which is very different from the findings of the jury: manslaughter by reason of provocation. Unlike in the case of Wen, the defendant is not entitled to a discount equivalent to a plea. However, I do take into consideration that the defendant did not take a stance of total denial, and he did not waste the Court’s time posing challenges. I also accept that he is truly remorseful. I will give the defendant a discount of one year, which amounts to just under a 10% discount. The sentence is therefore 11 years.

43.In the case of Liao, she is younger and she suffered fewer cut wounds, though 4 of the 6 cut wounds were on her head. She was also alive longer thus inhaled a larger amount of carbon monoxide. The evidence of her saying to the brave and kindly neighbour that she would not come out, that she wanted to stay with her mother shows the kind of predicament this little injured girl faced at the time. Having considered all the circumstances, including the fact that the defendant intentionally killed her as a result of the provocation to the defendant caused by her mother Wen, I am of the view that a starting point of 12 years is also appropriate. I will also give the defendant a one year discount for the same reason I gave in sentencing him for the killing of Lai. The sentence is therefore 11 years.

Arson with Intent

44.For this offence, a person is also liable to imprisonment for life on conviction upon indictment.[13]

45.Whilst I was also referred to some cases involving the same offence and also in a domestic context (such as HKSAR v Lam Kam Loy[14], HKSAR v Liu Suet Ha[15] and HKSAR v Wan Xiu Ying[16]), I do bear in mind that, unlike the present case, the victims in those cases did not die, and that the inhalation of fire fumes as a result of the Arson with Intent was part of the cause of death of all three deceased in the present case.

46.I accept that the Arson with Intent was not done by the defendant with pre-meditation and that the damage to the property was relatively limited, confined to Room B. However, I cannot ignore the fact that the lives of those in the neighbourhood were put at great risk, particularly when the fire was started in the dead of night.

47.Having considered all the circumstances, I am of the view that a starting point of 15 years is appropriate. There was no offer to plead guilty so no discount for plea can be given. The sentence of this offence is therefore 15 years.

Totality

48.I now have to consider the totality. Three persons lost their lives because of the defendant’s brutal acts. I do not think I could order all three sentences for Manslaughter (1^st to 3^rd counts)  to be served concurrently. I am of the view that a total sentence of 13 years would properly reflect the criminality involved.

49.As for the Arson with Intent (4^th count), whilst I accept that to a certain extent there is an overlap in evidence for all four counts, I still need to take into account the relatively limited damage to the property and the risk posed to the neighbours, I am of the view that by ordering 2 years of the 15 years sentence to run consecutively to the 13 years imposed for counts 1-3, making a total of 15 years would properly reflect the criminality of the defendant, and would also avoid any danger of double counting.

50.Actual sentence

1^st count – 9 years

2^nd count – 11 years,

3^rd count – 11 years,

4^th count – 15 years

51.As I have already indicated how I arrived at the total sentence of 15 years, to achieve this result and to avoid miscalculation, I order all the sentences for the 4 counts to run concurrently, making a total of 15 years.

Mr Lai Kim-wah, Derek, SADPP, Mr Lam Yi-yeung, Wilson, SPP and Miss Tam Ho, Hobe, SPP (Ag.)  of the Department of Justice, for the Prosecution

Mr Chan, Phil, S.C. and Mr Li, Chun Ngai Martin instructed by Messrs. Au Yeung, Chan & Ho, assigned by the Director of Legal Aid, for the Accused IU Wai-cheung