HKSAR v. Wong Shui Mouk

CACC 239/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 239 OF 2007

(ON APPEAL FROM HCCC NO. 4 of 2007)

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Before:   Hon Stuart-Moore VP and McMahon J

Date of Hearing: 12 June 2008

Date of Judgment: 12 June 2008

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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):

1.The applicant was sentenced to 7 years’ imprisonment by Beeson J for manslaughter against which he now seeks leave to appeal.

2.On 29 June 2007, following an 8-day trial, WONG Shui-mouk (the applicant) was acquitted of murder but convicted of unlawful act manslaughter.  The judge then requested a background report before imposing sentence on 11 July 2007.

3.The facts were relatively straightforward.  The killing resulted from a fairly trivial argument which had got out of hand.  It began with a faulty air-conditioner in the applicant’s Mongkok flat where he was a tenant.   Madam Ho was the owner of the flat.  The dispute went on for some time and grew in intensity when the applicant refused to pay his rent.  When Madam Ho tried to speak to the applicant on the telephone, he was abusive to her.  Eventually, the water and electricity to the applicant’s flat were cut off.  Madam Ho obtained the assistance of her estranged husband (the deceased) but each time he made his presence known, the applicant called the police.  For their part, the police advised the parties as to their civil remedies.

4.Matters came to a head when a meeting, arranged for the evening of 16 August 2006, flared up into violence.  The deceased was chopped twice on the head receiving serious wounds from which he died three days later.

5.The evidence appeared to indicate that the applicant had taken a somewhat aggressive and non-conciliatory stance towards Madam Ho.  The judge noted, in this regard, that:

“… by the time the landlady [Madam Ho] had arrived [the defendant] had managed to have the water turned on again. However, by this stage, the defendant’s wife with whom the landlady had had some dealings and who considered that he was adopting an unreasonable attitude over the dispute, had quarrelled with him and had left the premises to reside elsewhere. The landlady was still being conciliatory and had attempted to resolve the rental impasse although, by this stage, the defendant had decided to move out, in any event, and was trying to extract a fairly substantial sum as compensation for his moving expenses.” (Appeal bundle pp. 83-84)

6.Whatever the rights and wrongs, the argument on 16 August 2006 led to the applicant getting hold of a large chopper.  The applicant alleged that the deceased had fetched it from the applicant’s kitchen whereas Madam Ho said that the applicant had gone into his kitchen to fetch the chopper.  Whichever version was correct, there was no doubt that it was the applicant who chased the deceased down three flights of stairs brandishing the chopper.  The chopper, which was used to strike the deceased twice when they reached the ground floor level of the building, weighed 370 grammes and had a 20-centimetre-long blade.

7.By the time the deceased reached hospital, it was estimated that he had suffered more than 40% blood loss.  The deceased went into a coma on the following day from which he never recovered consciousness.

8.The pathologist who conducted the post-mortem on 22 August 2006, Dr Lau Ming-fai, stated that a heavy amount of force was required to produce the chop wounds to the deceased’s head.  Each of these had fractured the skull.  One wound was described as a deep cut wound and the other as a shelving deep cut wound.  These were likely to have been inflicted from behind although, if the deceased had been bending down, it was possible that they could have been inflicted from the front.

9.When the applicant was arrested he stated that the deceased had taken a chopper from his kitchen and had chopped him first.  He said that he had then “snatched the chopper back from him in self-defence”.  In regard to the suggestion by the applicant that the deceased had gone into the applicant’s kitchen, the judge, rightly in our view, gave little credence to this bearing in mind that the applicant’s flat would have been in darkness at the time of the incident as the electricity in his flat was still turned off.

10.Although the applicant had, through his counsel, expressed the possibility of an offer of a plea of guilty to unlawful act manslaughter at the start of the trial which the prosecution had rejected, the applicant’s defence at trial was run on the basis of a combination of self-defence and accident.  He described how he had slipped when the deceased was bending forwards and the chopper came down accidentally on the deceased’s head to inflict the first blow.  Thereafter, he said, he was acting in self-defence as each of them wrestled for the possession of the chopper.

11.In the six grounds of appeal raised by Mr Haynes who also appeared on the applicant’s behalf in the court below, it was submitted, in effect, that the judge’s decision not to adopt a starting point for sentence was “unhelpful” having regard to the applicant’s timely offer of a plea of guilty to manslaughter; that the sentence failed to reflect a verdict of the jury which was consistent with an acceptance of the applicant’s account (and other supporting evidence) and did not properly reflect the fact that the first head wound had been accidentally caused; that the deceased’s prior behaviour had amounted to harassment and it was only his interference in the discussion between Madam Ho and the applicant which had led to this incident; and that insufficient attention was paid to various circumstances urged in mitigation.

12.We can indicate straightaway that in our view there was no merit in any of the arguments put forward on behalf of the applicant.  It was abundantly plain that the judge, who had also had the advantage of seeing and hearing the witnesses, was fully conversant with all the features in aggravation and in mitigation of this offence.  The judge also had available to her the background report to which she made reference in the course of her sentencing remarks.  The judge said that:

“Overall, the defendant came across as a man who had done the best for his family in his working life, but was a man who possibly had a short temper and who was acting aggressively to ensure that he came away from the tenancy dispute with as much cash as possible.”

It is apparent that the applicant himself accepted that this was so and he admitted that his stance had not been justified.

13.The judge went on to say:

“Regardless of who picked up the chopper first, by the time [the defendant] started to chase [the deceased] down the stairs, it was quite obvious that he was chasing an unarmed man with the chopper. The forensic pathologist’s view was that the blows were likely to have been inflicted from behind and it’s likely that they were inflicted as the victim was trying to escape through the door leading to the street.

Given that scenario, it’s not possible to take the view, as I was exhorted to do by defence counsel, that this was an almost … accidental attack which would allow the imposition of a short sentence.

I note that the jury verdict meant that they accepted that the defendant did not intend to kill or seriously harm the victim. Nevertheless, in pursuing an unarmed man with a chopper and administering two blows to the head from behind, the defendant must have realised the risk of harm to the victim. The defendant’s assertion that one of the blows was caused when he slipped and brought the knife down on the victim’s head is highly improbable, particularly so in light of the heavy force needed to cause the fracture of the skull and the neat, almost parallel placement of the two chop marks very close together.

Manslaughter is committed in myriad ways. Unlawful act manslaughter covers a huge range of [factual] situations. It’s important to remember that a human life has been lost unnecessarily over a trivial matter and the sentencing court should, where appropriate, recognise with a sufficiently severe sentence those cases where there’s no compelling mitigation.

Apart from his clear record, the mitigation presented involves the plea that was offered initially to manslaughter. A deterrent element is necessary in sentencing so as to discourage other potential offenders from resorting to violence and from taking up weapons to solve what are, in essence, very minor disputes.

In manslaughter cases, it’s not always possible to set a starting-point to sentence and I do not take a starting-point in this case. In imposing sentence, however, I do take into account the plea that was offered.  I sentence the defendant to 7 years’ imprisonment.” (Appeal bundle pp. 87-88)

Although Mr Haynes criticised the approach taken by the judge, we can find no fault with the approach she adopted.  In all the circumstances, it seems to us to have been an appropriate sentence and perhaps, also, a merciful one.

14.There are, we should add, sound and pragmatic reasons for a judge who is called upon to decide an appropriate level of sentence for manslaughter, after weighing in the balance the many factors in aggravation and in mitigation which are often present in such cases, to do so without first indicating a starting point.  This is one category of offence which can vary so greatly in gravity and can be affected by so many considerations, both adverse and favourable to a defendant, that a starting point becomes a hindrance and an irrelevance in the quest for a just resolution to this complicated task.  In R v Lee Sau-ping, CACC 189/1995, Chan J, as he then was, expressed the difficulty as follows:

“… 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.”

Whatever way the delicate balance is achieved when arriving at an appropriate sentence for manslaughter, it is unlikely, at least in many such cases, that it will be of any real assistance to take a formal starting point.

15.This application is dismissed.

Ms Anthea Pang, SADPP, of the Department of Justice, for the Respondent.

Mr John Haynes, instructed by Messrs Chan & Tsu, assigned by Director of Legal Aid, for the Applicant.