R. v. Wong Kwai Chuen

CACC000605/1994

IN THE COURT OF APPEAL

1994, No. 605
(Criminal)

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

Date of hearing: 24 May 1995

Date of judgment: 24 May 1995

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J U D G M E N T

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Mortimer, J.A. (giving the judgment of the Court) :

1. The applicant, who was 46 years of age at the time of this event, was charged with murder of a woman with whom he was associating. He pleaded not guilty to murder but guilty of manslaughter on the grounds of provocation before Wong J and a jury on 1st October 1994. This plea was not accepted by the prosecution until some evidence had been given. On 9th November the Crown indicated that it was prepared to accept that plea and the jury was invited to bring in a formal verdict of not guilty of murder but guilty of manslaughter. On the same day, the judge sentenced the applicant to 7 years imprisonment - that sentence having been reached from a starting point of 10 years imprisonment. He how applies for leave to appeal against sentence.

2. The offence took place on 27th March 1994. The very brief facts are these. The applicant and the deceased had been out for the day together with the deceased's children. They came back to the applicant's home. They had purchased some beer - not very much - and were amusing themselves by telling ghost stories. This frightened some of the children as a consequence of which the deceased began to scold her 12-year-old daughter. This upset the applicant. A quarrel began with the result that the deceased began to beat her youngest boy. This beating angered the applicant to an extent that he completely lost control. He tried to strike the deceased with a chair. A neighbour tried to mediate without success. He then took a knife from the kitchen of his home and in a frenzied attack he repeatedly stabbed the deceased, following her out into the corridor. When she fell, he continued the attack, stamping on her and stabbing her to death. The violence was such that the knife was broken.

3. After the killing, he remained there until the police came. He admitted from the outset what he had done. As later appeared at trial, doctors examined him, and found that he was suffering from a post-traumatic stress disorder. He had suffered from this disorder with regular symptoms since his teens. It arose from severe treatment which he had received as a child from his mother and was directly related to the provocation which was the deceased's beating of the young child. In the doctors' words, "it provoked him (the applicant) because of his special vulnerability". It is therefore a very unusual case indeed in which this condition falls into the category of a mental characteristic relevant to the provocation.

4. There was no doubt on the evidence that the applicant was completely out of control. The elder child of the deceased described his condition. She said "he wasn't like a mad dog. He was worse. I could have controlled a mad dog. I couldn't control him".

5. The doctor described this condition as being susceptible of treatment by means of drugs and other therapy. Such treatment would take about a year but would not be likely to effect a complete cure. It would improve his condition, according to the doctor, so that he would be unlikely to offend in this way again.

6. In mitigation at trial, counsel suggested a sentence of between 3 to 7 years was appropriate depending upon the extent of the provocation. In sentencing, having described it as a sad case, the judge said:

"Now I have been urged to impose a lenient sentence because this is a case involving domestic violence. Domestic violence has become so prevalent and serious, that it is the duty of the courts to take notice of this fact. Beating of wife and children is certainly not a thing to be condoned and encouraged.

I regard this case with grave concern, and it's a matter that has to be put in proper perspective, despite the fact that you are convicted of manslaughter. It is a case that calls for a very heavy sentence. I think it is proper in this case for me to take a starting point of 10 years. I take into account that from the very outset you have pleaded guilty to manslaughter and you have all along been prepared to maintain that plea. I therefore give you a discount for your readiness to admit the killing. I reduce the sentence to one of seven years' imprisonment. And from the evidence of Dr Singer, you obviously need some sort of treatment and this treatment can be had in prisons."

7. As has been said often before, it is almost impossible to give precise guidance for sentence in cases of manslaughter. It is especially so in a case such as this where the mental condition, the level of control and the provocation are so inter-related. The fact is, however, that this was a deliberate killing. Within the variation of manslaughter it is not one of those cases which can be categorised as an accidental killing at one end of the scale nor is it at the other end of the scale which would attract a very heavy sentence.

8. The judge took a starting point of 10 years and reduced it. The aim of the sentencer is to take into account all the features of the case which will, of course, include the plea of guilty and all other circumstances and from that to ascertain the proper sentence which balances the interests of the accused and the interests of society.

9. In this case, we consider that it is necessary to bear in mind the number of matters which were not referred to by the judge in sentencing. First, that the killing, although deliberate, was totally without pre-meditation. It would appear that the applicant and the deceased had previously quarrelled about the children, but there was nothing in the past which indicated that this total loss of control was foreseeable.

10. The killing took place undoubtedly upon the spur of the moment. Total loss of control was well established. Also, the applicant had never denied his guilt of manslaughter and his responsibility for the killing. His plea at the outset of the trial was consistent with his behaviour immediately after the killing.

11. The judge did not specially deal with the question of provocation. We consider that he should have given it great weight and 10 years was too high even if taken only as a starting point. It is necessary to take into account his plea, the circumstances of the case and try to be consistent with other cases of its kind. Consideration also must be given to the medical evidence and reflect it in the sentence. That evidence indicates that treatment can be given in jail. A substantial improvement will be achieved in 12 months, but the improvement will not be a complete cure.

12. The sentence imposed by the judge was manifestly too great. It was also wrong in principle. In those circumstances we give the applicant leave to appeal. We allow the appeal and substitute for the sentence of 7 years one of 4 years imprisonment.

Representation:

Mr Keith, J. Oderberg assigned by DLA for Applicant

Mr D.G. Saw, SACP & Mr Derek Pang, APCC(Atg) (Crown Prosecutor) for the Crown