Case Document

100%Judiciary

CACC 176/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO.176 OF 2004

(ON APPEAL FROM HCCC 27 of 2003)

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BETWEEN

	HKSAR	Respondent
	and
	SIN KWAI CHING (冼桂清)	Applicant

____________________

Before: Hon Stuart-Moore VP, Cheung JA and McMahon J

Date of Hearing: 2 November 2004

Date of Judgment: 2 November 2004

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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):

Background

1.The applicant, then aged about 58, was charged with murdering Wong Chi-keung (the deceased) on 21 September 2002 at Room 1431, Ting Tak House, On Ting Estate in Tuen Mun. On 3 July 2003, he was acquitted of murder but convicted of manslaughter by reason of provocation. The ten-year term of imprisonment imposed on the following day by Beeson J is now the subject of this application for leave out of time to appeal against sentence. In the absence of good reason for the lateness of the application, we have heard this matter only as to its possible merits.

Facts

2.The main evidence about the killing was derived from the accounts given by an eye-witness (Chan) and by the applicant himself, both in interviews with the police and at trial.

3.The deceased was known to the applicant and he had visited the applicant at his home on several occasions. Prior to the killing, according to the applicant in his interview, they bore no grudges. However, at trial the applicant changed this account to say that the two of them had had an argument in a park. This would, on the evidence called at trial, have been between about 11:30 pm on 20 September 2002 and sometime around 1:30 am on 21 September 2002. In this regard, the applicant had not told the police about the presence of Chan at the killing until his second interview. In due course, Chan was traced by the police and he provided evidence not only about the killing itself but also about the earlier argument in the park.

4.It seems that both Chan and the deceased were drug addicts. It was Chan’s account that the deceased, who Chan had not previously met, was telling the applicant “to transfer the young lads to him”. Chan understood this to refer to a triad-related matter between them. Bad language was being used and Chan, who was sitting next to the applicant and the deceased in the park, heard the deceased asking the applicant to transfer members to follow him. The applicant’s account of this incident at trial differed considerably. He said that it was an argument which arose from the deceased demanding $200 which caused the deceased to become very angry when the applicant refused to lend such a sum to him.

5.The applicant’s case, so far as it related to his defence of provocation arising from the ‘park’ incident, was summarised by the judge in her sentencing remarks when she said that:

“…. he had been the butt of abusive and cruel remarks about his crippled leg; that he had been threatened with being made to disappear from the estate where he lived; that he had been threatened with the advent of the deceased’s triad brothers and that the deceased had threatened to damage his sound leg.” (Appeal bundle p. 61)

6.At about 1:41 am, the applicant returned to his flat with Chan. The precision of this timing is the result of a closed circuit television recording of their arrival in the lift lobby. The applicant said that he was calmer by this stage and went about his normal routine for that time of night. However, at about 2:06 am, the deceased arrived at the flat which he entered at the applicant’s invitation and, once inside, the deceased apparently began to shout out that the applicant would have to deal with his ‘Big Brother’ because he had not given him sufficient face. While he was shouting, the deceased banged a plastic lighter on a piece of furniture and it broke. The judge’s description of what then occurred was as follows:

“…. At this point the defendant rushed out of the kitchen carrying a large knife with a blade of 18.5 centimetres. The deceased saw this and apparently made to turn and make for the door; the defendant stabbed his left shoulder to a depth of 5 centimetres.

As the deceased turned to struggle with the defendant he was stabbed again a number of times. Eventually they fell on the bed which was near the door and a rather unequal grappling continued. There was an attempt by the deceased to grab hold (of) the blade but that did not succeed because …. he was too weak probably from the many wounds inflicted by that stage, and also because it was likely he was affected by drugs that he had been taking, methadone, zopiclone, which is a hypnotic, and traces of phenobarbitone probably from prior consumption of heroin. There was evidence that he was a drug addict.

The attack was brutal, frenzied and comparatively short. It lasted about 3 to 6 minutes. The deceased suffered massive bleeding as well as having breathing disrupted. The forensic pathologist gave stab wounds to the chest as the cause of death. There were about a dozen significant stab wounds recorded in the autopsy report.

The evidence of Chan, the eye-witness, was that he had not been allowed to leave while the attack went on. He said he failed in an attempt to stop the defendant using the knife at the onset of the attack. He said that after the struggle for the knife when both protagonists were on the bed the defendant stabbed the deceased two more times. Both the attempt to stop the defendant and the additional stabbing were denied by the defendant.

Chan said he was told by the defendant not to leave before he called the police and not until the deceased stopped breathing. He obeyed the instruction and left the flat by the rear staircase after the defendant called the police.” (Appeal bundle pp. 62-63)

7.It seems plain, therefore, that the applicant was acting in a most callous way in telling Chan that he should not leave before the deceased had died. In the event, Chan was recorded as leaving the building at about 2:26 am. Meanwhile, before the arrival of the police, the applicant washed himself and changed his clothes. The police duly arrived at the applicant’s address at about 2:29 am.

Sentencing

8.The judge took into account the mitigation which was advanced by counsel in the court below. The main features to which she had regard were that:

(i) the applicant had taken immediate responsibility for the killing and had expressed remorse for it;

(ii) the applicant had pleaded guilty to manslaughter;

(iii) the applicant had a very minor criminal record;

(iv) the provocation was directed at the applicant’s physical handicap and involved a threat of violence; and

(v) the applicant suffered from chronic ill health because of diabetes and heart disease.

9.In conclusion, the judge reduced the sentence she would otherwise have imposed by one-third to reflect the applicant’s plea of guilty at the beginning of the trial. In passing sentence, she said:

“This was a swift and brutal attack on an unarmed man who was apparently leaving the defendant’s premises when he was stabbed in the back; in the ensuing unequal struggle he had no chance of escaping or of defending himself realistically.

He was attacked by the defendant who had a 20 kilogrammes weight advantage and who had, despite his crippled leg, very powerful upper body strength. The alleged provocation related to abuse about the defendant’s crippled condition and related also to the defendant’s former association to a triad society. The defendant told the court that he had being trying to break from his triad links and had become a Christian in 1996.

He told the court that he had not mentioned the topic of triad links to the police in his record of interview because he didn’t want the police to learn of such association. He said he hadn’t told the police about Chan, the eye-witness, because he didn’t want Chan to be involved.

Clearly the jury accepted provocation and I respect that verdict but comment that this was a massive reaction out of all proportion to the effect of the provocation offered. There is no satisfactory explanation why if he was so angry, upset and fearful of a triad attack he, some 25 minutes later, allowed the deceased into his flat.

The deceased sought entry, he didn’t enter uninvited despite the open door of the flat. There was a 25-minute cooling off period and it is obvious from the evidence given by the defendant and by Chan that there was no obvious anger or agitation shown by the defendant during that period apart from a discussion about the demand for triad followers. The defendant was following his usual evening routine.

If I take these factors into account particularly the severity of the attack and the comparatively short period of provocation preceding the attack and the cooling off period. I take a starting point of 15 years. I discount that for the plea that was originally offered and reduce it to 10 years with a sentence of 10 years’ imprisonment.” (Appeal bundle pp. 63-64)

Grounds of appeal

10.Mr Poll, who also represented the applicant in the court below, advanced three main grounds of appeal which we can deal with together.

11.Firstly, he submitted that the judge had failed to appreciate the full extent of the provocation or the mitigating circumstances leading to the commission of the offence. Taking the more significant points, Mr Poll emphasised the vulnerability of the applicant in the light of his physical disabilities and the sinister overtones behind the deceased’s behaviour which, as he suggested, effectively left the applicant with nowhere to hide. It was stressed also that the applicant was trying to break his links with the triads and that, in reality, he was attempting, as it was put in the written submission, to save himself by launching a “pre-emptive strike as a warning to others to leave him alone”.

12.However, realistically, these matters had been taken into account by the judge who, in addition to the passages already cited, said:

“In mitigation it was pointed out that the deceased took immediate responsibility for the killing; that he expressed remorse for it; that the matter was out of character because he had no previous offences of violence. In fact the defendant has six minor gambling offences and an assault occasioning actual bodily harm for which he was bound over. So, effectively he has a very minor record and I don’t take it into account for the purposes of sentence.

It was pointed out that there was very severe provocation directed at his physical handicap; the threat to him of violence; his attempt to change his triad connected lifestyle was in jeopardy; that he was a man suffering chronic ill health of diabetes and heart disease and that all these factors indicated that he should be treated with leniency in respect of this offence to the best of the court’s ability.” (Appeal bundle p. 63)

13.In our judgment, in spite of the mitigation which Mr Poll had advanced, the comment made by the judge, in a passage to which we have already referred that this was a disproportionate reaction to the provocation, was not without some force in view of the whole nature of this attack on an unarmed man in response to spoken words of a provocative kind.

14.It was argued, secondly, that at the time of sentencing, the degree and scope of the applicant’s illness had not been fully assessed and, in consequence, may not have been comprehensively evaluated. One aspect of this argument was that these factors may have had an impact on the provocation but if, as Ms Anthea Pang on the respondent’s behalf in her written submission pointed out, this was a reference to the medication the applicant was supposed to be taking for diabetes, it was the applicant’s own account that any failure on his part to take his stipulated dose did not usually affect his mood.

15.Closely allied to this submission, was the suggestion that this was a proper case in which to take into account the applicant’s ill health as a factor which could justify a reduction in his sentence. In this regard, we were provided with a number of additional medical reports which we were invited, by Notice of Motion, to admit as fresh evidence under Section 83V of the Criminal Procedure Ordinance, Cap. 221. We have considered this material de bene esse. It is apparent, however, that these reports added nothing of substance to the information which had been put before the judge in the court below although we do know that an anticipated eye operation by laser, which the judge was told in the course of mitigation was imminent, has now taken place. Unfortunately, it does not seem to have had much success and the applicant will require more of the same treatment at a later date. However, in a report from Dr Chan Wai-nang dated 27 October 2004, with which we have been supplied today, it is stated that the applicant’s “daily life should not be severely affected by the retinopathy, but he may have difficulty in fine vision”.

16.It is well established that for crimes of gravity, and this case clearly comes in that category, ill health is not generally to be regarded as a mitigating factor of any weight even when it is accepted that it will be an additional hardship for a prisoner to endure during the currency of his term of imprisonment. In HKSAR v Tsang Wai-kei, CACC 452/2002 (unreported), this court said (at p. 5) that ill health was not generally a matter which could mitigate a proper sentence, “particularly for crimes of gravity”. (See HKSAR v Tong Fuk-sing[1999] 3 HKC 332 at 336D per Stuart-Moore VP and R v Ho Mei-lin[1996] 4 HKC 491 at 493B per Nazareth VP.) The court continued by saying:

“….We do not, however, disagree with the suggestion that in appropriate and extreme cases, the court is entitled to take such matter into account.

18. The court must on the other hand keep a proper balance between the public interest and the regard for the exceptional hardship suffered by an accused. In offences of extreme gravity, public interest must prevail. (See: HKSAR v Yip Kai FoonFAMC Nos. 35 & 36 of 1999 (unreported)).”

Conclusion

17.We are seldom assisted by the sentences imposed in other cases for similar types of offence (other than ‘guideline’ cases) and this application provides no exception. We were referred to a number of previous decisions of this court and of other courts but this case, unlike those, shows a clear intent to kill as opposed merely to inflict grievous bodily harm resulting in manslaughter by reason of provocation. We have found nothing to cause us to interfere with the sentence imposed on the applicant. This was not a case in which the degree of provocation was on a particularly great scale, confined as it was to oral threats and abuse particularly bearing in mind that the deceased had been allowed entry to the applicant’s flat, but it was met with a cowardly attack on the deceased which began with him being stabbed in the back as he tried to run away. Eleven further significant stab wounds were inflicted by the applicant following that initial stabbing. This case was close to the borderline between murder and manslaughter.

18.The judge was not required to take a starting point for manslaughter. It is no criticism of her that, in the event, she chose to do so. The question for us is whether a ten-year sentence was, in all the circumstances, manifestly excessive. We are satisfied that it was not.

19.Accordingly, the application is dismissed.