HKSAR v. Chan Ka Fai

CACC 100/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 100 OF 2008

(ON APPEAL FROM HCCC NO. 68 of 2007)

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BETWEEN

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Before:   Hon Stuart-Moore VP, McMahon and Wright JJ

Date of Hearing: 12 September 2008

Date of Judgment: 12 September 2008

J U D G M E N T

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

1.The applicant pleaded not guilty to murder but guilty to manslaughter on the ground of diminished responsibility when he appeared before Saw J on 18 February 2008.  Having heard the mitigation advanced by Mr Loughran, who also appears in these proceedings, the judge then adjourned sentencing until 22 February 2008 at which time he imposed a term of 8 years’ imprisonment.  The applicant now seeks leave to appeal against his sentence on the ground that it is manifestly excessive.

2.The facts can be described relatively briefly.  On 26 October 2006, the applicant stabbed his mother, Law Yuet-kwai (the deceased), aged 58, at the flat in Shatin where he was then living with the deceased and his sister.  Having killed his mother, the applicant some time later wrote a suicide note before cutting his left wrist in an attempt to kill himself.

3.The applicant’s sister returned to the flat at about 10.45 pm on 26 October 2006 to find the applicant unconscious and the deceased lying in bed in a pool of blood.

4.The deceased had died, according to Dr Lai who conducted the post mortem and also attended the scene, between about 11.00 am and 5.00 pm on 26 October 2006.  He found that the death was due to massive blood loss from a stab wound to the chest causing injuries to the lung, aorta and liver.  The kitchen knife, which was consistent with having caused this wound, lay beside the deceased.  Its single cutting-edge blade leading to a pointed tip measured 19 centimetres which, at its widest point nearest to the handle, was 3.5 centimetres wide.  The fatal wound gave indications that the knife had been partially withdrawn before being reinserted as the wound was divided into two tracks.  There were sixteen other wounds to the deceased’s neck, arms and trunk which were largely consistent with defensive injuries inflicted on the deceased as she tried to ward off the attack.

5.The applicant was taken to hospital where he was found to have cut through the radial artery on his left wrist.  He was then transferred to Castle Peak Hospital for psychiatric care and observation.  By 29 October 2006, when the applicant was fit enough to be interviewed, he related how he had become unemployed two months before the killing but had continued to go out in order to maintain the pretence of having a job.  He would normally stay at the library or walk the streets but on 26 October 2006 he had returned home between 8.30 am and 9.00 am intending to tell the deceased the truth.  By then, he was $400,000 in debt and he had also spent the $600,000 the family received following his father’s death in an accident at work two years earlier.

6.The applicant stated in his interview that after explaining to the deceased the truth about what had happened, she kept “scolding” him and this made him “annoyed and confused”.  He then went into the kitchen where he fetched a knife and used it to slash the deceased’s neck.  The deceased fell onto the sofa and he then stabbed her “indiscriminately” and “suffocated” her with a cushion.  He then moved the deceased’s body to the bedroom and began to tidy the scene.  At one stage he went out for a newspaper and later he watched the computer before writing a suicide note to his sister.

7.Several psychiatric reports, together with a report from Dr Leung, a psychologist, were made available to the judge for sentencing purposes.  Essentially, these revealed that the applicant had been suffering from Avoidant Personality Disorder at the time of the killing.  The judge provided a summary of this aspect of the evidence which it is useful to repeat.  This was as follows:

“On the morning of the killing the defendant was suicidal, depressed and emotionally unstable. That is apparent from all of the reports that I have read. And what is equally apparent is that for some time prior to the date of the killing the defendant had exhibited many of the personality traits of a person suffering from an avoidant personality disorder. Dr Leung in her report described an avoidant personality disorder in the following terms:

‘It is a personality disorder characterised by a pervasive pattern of social inhibition, feelings of inadequacy, extreme sensitivity to negative evaluation and avoidance of social interaction. People with avoidant personality disorders often consider themselves to be socially inept or personally unappealing and avoid social interaction for fear of being ridiculed, humiliated or disliked. They typically present themselves as loners.’”

8.The judge also reviewed what was known about the applicant’s background leading up to the time when he got himself into serious debt.  The judge noted that the $600,000 given to the applicant was supposed to have been invested in an interest-bearing account to make some provision for the family’s future but, unbeknown to the deceased and his sister, he had spent it all and had accumulated an additional debt of $400,000.  When the applicant eventually told the deceased what he had done, she was, as the judge stated:

“… not unnaturally very distressed and made her feelings known to the defendant in no uncertain terms.  It was, it was said, this that led to his attack upon her.”

9.The judge found that in the months leading up to the killing, the applicant’s mental health had been deteriorating and that, by the time the offence was committed, the applicant was clinically depressed to a significant degree.  In this regard, while the applicant was in part the author of his own misfortune as he had made no attempt to rationalise his spending or spiralling indebtedness, the judge accepted that the applicant was, by reason of his pre-existing condition, “less equipped than others might be in similar circumstances” to deal with the situation in which he found himself.

10.The judge took into account the factors which Mr Loughran had advanced in mitigation.  Apart from his plea of guilty, another significant feature of the mitigation was that the applicant’s sister had forgiven him.

11.In these proceedings, it was again emphasised that the applicant’s temporary mental abnormality had brought about a reduced level of responsibility.  As to this, however, it almost goes without saying that the acceptance of the plea to manslaughter and the imposition of a substantive sentence of 8 years is in recognition of this feature of the case.

12.Mr Loughran also laid stress on the applicant’s obvious remorse and his feelings of anguish arising from his subsequent realisation of the enormity of what he had done having previously enjoyed a good relationship with the deceased.  In addition, Mr Loughran submitted that the need for deterrence in such a case as this was greatly diminished particularly as the psychiatric reports indicated a low risk of reoffending and no evidence that the applicant would pose a long-term danger to the public. 

13.It was accepted in the court below, as it has been in these proceedings also, that a hospital order would be inappropriate as the applicant’s mental condition no longer merits psychiatric in-patient treatment.  Mr Loughran accepted that a term of imprisonment was inevitable but he argued that the term imposed by the judge failed to give adequate consideration to the various mitigating factors taken in combination.

14.In our opinion, this is not a case in which the degree of responsibility for this killing on the part of the applicant can properly be described as minimal.  He must bear the blame in large measure for getting himself into debt to an extent which he could never hope to repay and also for his unauthorised use of the family’s money which he was supposed to have invested.  In Dr W K Choi’s report (para. 20), reference is made to the way the applicant indulged himself by getting “lost in amusement games and luxurious expenditure”.

15.The judge was left with the difficult task of finding an appropriate level of punishment having regard to all that was known about the applicant set against what, on any view, was a killing of a most brutal and callous kind.  It seems to us, furthermore, that if the applicant had not acted in a way which resulted in the build-up of pressure on himself, this tragic killing would probably never have occurred.

16.In all the circumstances, we consider that the approach taken by the judge cannot properly be criticised.

17.Accordingly, this application is dismissed.

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

Mr Paul Loughran, instructed by Director of Legal Aid, for the Applicant.