R. v. Li Wai Yi

CACC000330/1995

IN THE COURT OF APPEAL

1995, No. 330
(Criminal)

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Coram: Hon Yang, C.J., Power, V.-P. and Keith, J.

Date of hearing: 10 November 1995

Date of judgment: 10 November 1995

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J U D G M E N T

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Hon Yang, C.J.:

1. We have perused the contents of the appeal bundle including the judge's Reasons for Sentence, the psychiatric reports and other documents with care. We have also taken into consideration the grounds of appeal and what counsel for the applicant had said to us this morning. Our decision is that the application for leave to appeal against sentence should be dismissed. We now give our reasons.

2. The applicant was charged with the murder of his father but the Crown at the trial accepted a plea of guilty to manslaughter on the grounds of diminished responsibility. It was on the basis of that plea that the judge examined the facts and passed the sentence that he did.

3. The judge in his Reasons for Sentence noted that it was a tragic case because the victim was the father of the applicant and also because of the peculiar circumstances of the case. He then went on to review the facts and the personal circumstances of the applicant including the mental depression which the applicant was certainly suffering at the time of the offence.

4. In our view, the judge dealt with this case with compassion and great fairness. He outlined the facts in these terms: The applicant was 29 years of age at the time of trial; he and his family came to Hong Kong 15 years ago; his father, the deceased, was a doctor in China and the mother was a lecturer in a Medical School in Shanghai. However, the father was not qualified to practise in Hong Kong, and so the mother had to work hard to support the family while the father studied and sat for the qualifying examination. Fortunately for the family, the father later qualified as a licensed doctor and the mother helped in his clinic.

5. The father was described as a traditional Chinese, temperamental and impulsive and sometimes violent. It was not in dispute that he sometimes abused his wife and the children and was on the whole harsh to the family. The mother, on the other hand, was submissive and caring to the family. The applicant was devoted to the mother and when the mother unfortunately suffered from cancer in July of 1993, the applicant resigned from his employment in order to look after his mother in hospital and he also helped with the household chores. Such was his sense of duty to his family that he even postponed his marriage with his girl-friend. Sadly, the mother died in February 1994. This fact must have been a blow to the applicant who from that point on lost his mother's moral support. From then on, he went into a period of depression. According to the applicant, he often dreamed of his mother and heard voices of his mother.

6. On 13 May 1994, two days before the killing and about three months after the mother's death, the applicant became aware that his father was about to go to China on the following day for the purpose of marrying another woman in China. An argument between father and son developed. The applicant blamed his father for getting married within 100 days of his mother's death. One hundred days, according to Chinese tradition as we understand it, was the minimum period of mourning. In reply, however, the father said that the mother deserved to die. According to the applicant, he heard voices from the mother instructing him to try and stop his father from going to China to get married.

7. On the day of the offence, i.e. 15 May 1994, and during the argument, the applicant went into the kitchen and obtained hot oil, which he said he had used for frying some spring rolls in preparation for a meal. He came out of the kitchen and poured the hot oil onto his father. He then left the premises to go to his girl-friend. In the meantime, neighbours heard the cries for help from the father and the police were summoned. When the police arrived, the father opened the door and the police found him soaked in oil and there were blisters on his body. The father was taken to hospital but died two days later. In the meantime, the applicant went to see his lawyers and was about to surrender himself to the police station when he was apprehended at the solicitor's office.

8. The applicant has been described by friends and two clergymen as being a very devoted Christian and was very active in church affairs. He was generous and eager to help others.

9. The psychiatric reports showed that he suffered from depression as a result of his mother's death and he was very much psychologically affected and was in need of psychiatric treatment.

10. The learned judge in assessing sentence accepted that there was no intention on the part of the applicant to kill his father. He only wanted to injure him so that he could not go to China to get married. The judge also accepted that the applicant was at the time of the offence under the effects of his depression and other medical conditions.

11. The applicant has been in custody for some eighteen months and has been receiving psychiatric and medical treatment. His condition has by now significantly improved and he no longer requires in-patient psychiatric treatment.

12. In passing the sentence that he did, the trial judge took into consideration the applicant's plea of guilty, his clear record, his medical conditions and his genuine remorse and the judge concluded:

"I think the most severe punishment to him would be the punishment to his conscience that he has killed his own father."

13. Taking into consideration all that counsel has addressed us on and looking at the case as sympathetically as we can, we are nevertheless of the view that the sentence imposed upon the applicant is appropriate, or perhaps even on the light side. There is nothing which has been said to us this morning which indicates that the sentence is either manifestly excessive or wrong in principle. The application, as we have said, is dismissed.

Representation:

Mr Andrew Macrae (D.L.A.) for Applicant

Mr K P Zervos of the Attorney General's Chambers for Crown/Respondent