HKSAR v. Cheung Hoi-ying

CACC000314/2002

CACC 314/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 314 OF 2002

(ON APPEAL FROM HCCC 187 OF 2001)

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Coram: Hon Stuart-Moore VP, Yeung and Ma JJA

Date of Hearing: 23 January 2003

Date of Judgment: 23 January 2003

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1.On 17 June 2002, the Applicant, aged 30, was acquitted of murder but convicted of manslaughter by reason of provocation, following a trial in the Court of First Instance before Beeson J and a jury. On the following day, the Applicant was sentenced to 13 years' imprisonment. She filed a notice on 3 July 2002 seeking leave to appeal against conviction and sentence.

2.So far as conviction is concerned, no written grounds of appeal were ever supplied. In court today, the Applicant, who is legally represented only so far as sentence is concerned, has indicated that she no longer wished to pursue her application in relation to conviction. We have, of course, already considered its merits and there were none. Accordingly, this application is dismissed.

3.We propose next, therefore, to consider the evidence called at trial in order to put the application relating to sentence into context. For these purposes, we can in large measure adopt some of the material supplied in the summaries which were most helpfully prepared by counsel on both sides.

The facts

4.By way of an overview, the Applicant was the deceased's mistress. She strangled the deceased after he had told her that he wanted to split up with her. She then tried to commit suicide. At the outset of the trial, the Applicant pleaded guilty to manslaughter on the basis that what she did was in pursuance of a suicide pact. Her plea was not accepted.

5.The Applicant and the deceased met and became lovers in mid-2000. Both of them resided in the Mainland but they regularly came to work for short periods in Hong Kong. The Applicant discovered in due course that the deceased had a common law wife, Madam Lau (Lau), who also lived in the Mainland. The deceased and Lau had been cohabiting for some years previously and they had a six-year-old daughter. Despite this discovery, the Applicant decided to continue her relationship with the deceased.

6.When the deceased and the Applicant went back to the Mainland, they continued to see each other as they lived nearby. Eventually, the Applicant met Lau. She addressed Lau as "sister", feeling that they were like sisters.

7.During Chinese New Year in 2001, the deceased asked the Applicant to go to their home. He insisted that she should stay. On this occasion, Lau collected the Applicant on her motorcycle.

8.On 15 February 2001, the Applicant, the deceased and Lau were all permitted to come to Hong Kong on brief two-way permits. Initially, only the Applicant and the deceased stayed together in the room they normally shared when they were in Hong Kong.

9.On about 17 February 2001, after Lau had said that she was unable to find a job, she came to live with the deceased and the Applicant. Previously, the deceased and the Applicant had been sleeping on the lower of two bunk beds but when Lau arrived, Lau and the deceased occupied the lower bunk and the Applicant occupied the top bunk. This was done at the Applicant's suggestion to avoid possible problems with Lau. Indeed, it appears that the Applicant was attempting to make this triangular relationship into one which could work.

10.At 6.45 a.m., on 26 February 2001, Lau left the address where the three of them were staying. This was after having breakfast with the deceased. The Applicant had not by that stage got up. Shortly after Lau had left, the deceased told the Applicant that he wanted to separate from her. According to the Applicant, the deceased also asked her to kill him by whatever means because he was depressed about their relationship and also about the debts he owed in China. However, there had been no indication from any other source in the evidence that the deceased had been depressed or upset, and this was specifically denied by Lau. The Applicant said that the deceased asked her if she would "follow" him if he died and, according to her, she replied that she would.

11.The Applicant admitted in evidence that she had strangled the deceased with a T-shirt as he sat on the lower bunk. After that, she said that she took a mixture of tablets. It seems that none of these were particularly potent save for some phenobarbitone tablets. The dosage was in any event insufficient to cause death. She also attempted to cut her wrists but these cuts were superficial and not life-threatening. Nevertheless, the prosecution accepted that the Applicant had probably made a genuine attempt at committing suicide.

12.There were almost no marks of a violent struggle on the deceased apart from some bruising on his leg, and the only obvious sign of a struggle having taken place in the premises was a broken bowl. The Applicant told the police that this had occurred when the deceased was kicking out as she strangled him.

13.At about 3:00 p.m., Lau returned to the premises and found the Applicant lying on the bed with a bleeding wrist. The deceased was already dead at that time. His body lay beside the Applicant. According to the forensic pathologist's report, the cause of death was pressure on the neck. The injuries to the neck, particularly those caused internally, were all deep injuries compatible with strangulation. This had been carried out with a broad ligature, possibly combined with manual strangulation.

14.In the course of giving evidence, the Applicant said that she had been "forced" by the deceased into killing him. She also said that she had taken about 100 tablets despite evidence from the Government Chemist to the effect that she had probably taken less than 10. Her testimony overall was consistent with the plea she had entered. Plainly, the jury, in the light of their verdict, rejected the reason given by the Applicant for carrying out this killing.

Mitigation

15.The mitigation in the court below laid emphasis on the fact that this killing occurred at a time when the Applicant must have been suffering from depression. In this regard, the judge was able to take into account a psychiatrist's report which lent support to the view that the Applicant had been depressed, evidence having been found of "adjustment disorder". Furthermore, before trial, the Applicant had attempted to commit suicide on three other occasions, albeit these were not attempts which had been able to develop very far before they were discovered.

16.A further matter we have been invited to consider from the mitigation was the Applicant's plea of guilty which was entered on a wholly different basis to that on which the jury found the Applicant guilty. As this formed a specific ground of appeal, we can say immediately that we consider that whilst this carried some weight we do not consider it was a factor which should have reduced the sentence to the same extent as it would have done if this had been a plea which had been entered on a proper and realistic basis.

Sentence

17.In passing sentence on the Applicant, the judge, having reviewed much of the background, said:

"The jury clearly felt that the evidence showed that the (defendant) had lost her self control at being told of the wish to separate and had strangled the deceased on the basis that she did not wish to separate and had lost control at being told that he wanted to.

It appears that the defendant then attempted, incompetently but probably genuinely, to commit suicide herself.....

Later, over the period of the month that she was in hospital, she attempted on other occasions to commit suicide. None of these attempts got very far, probably because she was being watched by that stage." (Appeal bundle p. 82)

18.The judge then went on to express the undoubted difficulty in arriving at a proper sentence in such a case as this which not only gave recognition to the mitigation which had been advanced but also reflected "society's abhorrence at the wanton taking of a life". She went on to say:

"In this case, it appears that the provocation, although it might have been cumulative, was, at the time ..... preceding the incident - fairly minimal provocation and that the circumstances of this case are fairly close to murder in terms of the way the events unfolded." (Appeal bundle p. 83)

A little later the judge went on to say:

"It has been suggested that the defendant should be given some credit for her initial plea. However, having considered the plea that she made at the outset of the trial which was to manslaughter on the basis of a suicide pact, it does not appear that that shows either serious remorse or a realistic view of what actually occurred.

A suicide pact, if it had been established or accepted by the jury, would have brought the sentence into a much lower range of sentence than it would have been on the basis of provocation of this nature.

I note that the defendant has a clear record, that she has been living a blameless life up to this point. There was possibly some basis for the provocation in the fact that she has had two previous marriages, neither of which has been successful and in both cases where she appears to have been the rejected party. It is possible that this contributed to the provocation that existed on the morning of the 26th.

Taking all those matters into account, I take a starting point of 15 years in this case, and I sentence the defendant to 13 years' imprisonment." (Appeal bundle p. 83)

The application

19.Ms Remedios, on the Applicant's behalf, primarily submitted that in the light of a number of decisions of this court the fifteen-year starting point adopted by the judge was manifestly excessive. We have to say that we were not greatly assisted by a comparison with other cases to which we were referred save as to matters of principle. The circumstances of offences such as this, it goes almost without saying, are infinitely variable, and none of the other cases to which we were referred gave much assistance for precisely this reason. As a separate issue, it also needs to be borne in mind, so far as decisions of this court are concerned which were reached some time ago, that in recent years the sentences imposed for manslaughter have generally increased.

20.We have kept in mind also that the judge took a starting point which she was, as Ms Remedios in the course of her submissions accepted, in no sense bound to do. In R v Lee Sau-ping, CACC 189/1995, P. Chan J (as he then was) said:

"This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide range of sentence, from probation to life imprisonment. A sentencing judge may well feel having taken an overall view of the matter that all he can finally do is to decide on the appropriate sentence."

21.Adopting this exercise and looking at all the circumstances we have set out, including those which were rightly borne in mind by the judge, we consider that to leave the sentence as it stands cannot properly be said to have honoured the basis upon which the jury convicted.

22.In our judgment, if due respect is to be paid to the jury's verdict, with all these considerations in mind, the sentence imposed on the Applicant must be regarded as manifestly excessive.

23.The jury found that the Applicant, who had twice been rejected in previous marriages and who had tried to make this relationship work, had acted under provocation. The ultimate foundation for this verdict must have been, to use the words of the judge when she summed up:

"....what the deceased is alleged to have said about wanting to split up and refusing to give a reason ...." (Appeal bundle p. 18)

Conclusion

24.We propose, therefore, to allow this application and treating the hearing as the appeal, we shall reduce the sentence by four years to one of nine years' imprisonment.

Representation:

Mr Gavin Shiu, SADPP, of the Department of Justice, for the Respondent.

Ms Corinne Remedios, instructed by Director of Legal Aid, for the Applicant.