HKSAR v. Ng Tung Mo

CACC 125/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 125 OF 2007

(On Appeal From High Court Criminal Case No. 246 of 2006)

________________________

BETWEEN

________________________

Before : Hon Cheung, Yeung JJA and Barnes J in Court

Date of Hearing : 31 October 2008

Date of Judgment : 31 October 2008

Date of Reasons for Judgment : 6 November 2008

REASONS FOR JUDGMENT

Hon Cheung JA (giving Reasons for Judgment of the Court) :

1.The applicant was charged with the murder of his wife.  After trial by Beeson J and jury, the applicant was convicted of manslaughter and was sentenced to eight years’ imprisonment.  The applicant applied for leave to appeal against sentence.  We dismissed the application for the following reasons.

Facts

2.The applicant was born in October 1950.  He was 56 years and 5 months old at the time of the trial in March 2007.

3.The applicant has been living in Hong Kong since 1978, having come from the Mainland.  After he was divorced by his first wife whom he married in the Mainland in 1980, he married the deceased in 1985.  The deceased was younger than the applicant.  She was 43 at the time of her death on 2 July 2006.  The deceased was then living in the Mainland but also came to live in Hong Kong in 1990.  There are four children of the marriage, aged 14, 13, 11 and 9 at the time of the trial.

4.From the end of 2002, the applicant operated a business which specialized in dismantling objects.  The deceased worked with him in the business.  The marriage was a reasonable one although there were quarrels about demands for money from the deceased’s maiden family in the Mainland.  The applicant had to borrow substantial amount of money to meet the demands.

5.The applicant also suspected that the deceased had an affair.  Some months before the offence, a friend told the applicant that the deceased had an affair with a man.  This apparently was a set up by that friend.  The applicant had to pay $50,000 for the information, including buying at an exorbitant price, three photos allegedly of the deceased and her alleged lover.

6.On 28 June 2006, the applicant had an argument with the deceased.  The deceased asked for a divorce and said that she did not care about having responsibility for their children.  She put an electric cord around her neck and threatened to commit suicide.  The applicant managed to remove the cord and throw it to the ground but he was so enraged with the deceased’s demand for a divorce that he lost control and grabbed a two pound hammer which was nearby and hit the deceased.  The deceased later died from the attack on 2 July 2006.  The autopsy report showed there were five skull injuries; four of which had underlying fractures.

7.The applicant then called his daughter telling her that he had killed the deceased and that he was going to kill himself.  The daughter pleaded with him not to do so and told him to get help for the deceased.  The applicant also called a relative in the Mainland who had previously acted as a mediator in their family disputes.  The relative told him to call the police.  The applicant later called the police and he was arrested after the police arrived. 

8.The applicant had offered to plead guilty to manslaughter at the trial.  It was not accepted by the prosecution.

The sentence

9.In sentencing the applicant the Judge stated, among other things, that, 

‘ This is a tragic case in which the accused has deprived his four children of their mother’s care during their formative years, by killing her, but also ensuring that they are deprived of his care for the period that he must be in prison.

The domestic considerations make the case particularly difficult for the sentencing court, but the accused must be dealt with in a manner that discourages others from solving marital disputes with a hammer, or some other heavy instrument.  I take into account the appellant’s age and the circumstances in which this killing occurred.  I take into account his offer of a plea to manslaughter.  I note the marital history and the family circumstances past and present. I sentence him to 8 years’ imprisonment for this offence.’

Complaints against lawyers

10.The applicant who appeared in person in this appeal relied on a number of grounds of appeal.  We will deal with his complaint against his former solicitor and counsel first.  He said that his former solicitor had not taken proper instructions from him on mitigation of sentence after he was convicted.  The solicitor had also refused to accept letters written by the children pleading mitigation for the applicant.  These allegations were denied by the solicitor.

11.We do not consider that the applicant’s complaint against the solicitor has any material bearing on the outcome of the sentence.  The solicitor in fact managed to obtain mitigation letters written by the applicant and a preacher and they were used for the purpose of mitigation.  The Judge was aware of the position of the children as she had called for a probation officer’s report.  The children told the probation officer that there were quarrels and fights between their parents in the past.  The fights were sometimes initiated by the deceased.  The children also said that they had forgiven the applicant.  The Judge was aware of this information.

12.The applicant also complained that his former counsel had, without consulting him, asked the Judge to impose a sentence of between seven and eight years’ imprisonment.  This is also not a valid point.  Counsel owed a duty to provide the Court with all relevant authorities on sentence, whether the cases were in his favour or against him.  Counsel had referred the Judge to a number of cases in which the range of sentence was between seven and ten years’ imprisonment.  He then urged the Judge to accept a lower sentence of seven to eight years’ imprisonment in the present case.  The applicant now relied on other decisions where lower sentences were imposed.  The fact that counsel did not refer to those cases does not necessarily mean that he was negligent.  He was referring the Court to some more recent decisions.  More importantly it also does not mean that the sentence imposed in the present case is wrong.  The Court still has to look at the circumstances of the case to decide if the sentence is correct.

Range of sentence

13.In HKSAR v. Hui Kwan Yuen CACC 210/2002 this Court reviewed a number of cases decided between 1990 and 2000 concerning manslaughter in a domestic setting where the range of sentence was between four to six years.  Provocation was involved in these cases.

14.Ms Sin, SADPP, counsel for the respondent, relied on two other more recent decisions of this Court in HKSAR v. Tam Shu Kin (CACC 444/2004) and HKSAR v. Lam Chun Fai (CACC 486/2005) in which this Court respectively affirmed a sentence of nine years’ imprisonment imposed in each of these cases.  In both cases the defendants were charged with murder but were found guilty of manslaughter after trial.  In both cases the defendants offered to plead guilty to manslaughter but were refused by the prosecution.  Both cases involved killing in a domestic setting, the victim in each case was the wife of the defendant.  Provocation was involved.

15.One of the cases referred to the Judge below was HKSAR v. Li So Man [2000] 2 HKLRD 824 where the wife killed the husband with a hammer.  The husband had assaulted her and threatened to chop her and their children.  In the weeks before the killing, there were several violent episodes between the parties.  The wife was convicted of manslaughter by reason of provocation.  A sentence of 12 years’ imprisonment was reduced to eight years.

Relevant factors

16.There is no tariff of sentence in manslaughter cases because of the different circumstances of each case.  The Court takes into account that a life has been taken away and in cases that arose from family problems, the Court emphasizes that violence should not be resorted to in order to resolve a marital dispute.  The Court also takes into account the extent of the provocation and the degree of violence that were involved in a particular case.  The Court will also take into consideration the offer of pleading guilty to manslaughter by the accused. 

The present case

17.In this case the jury unanimously found the applicant guilty of manslaughter.  On the facts of this case this could only mean that the jury accepted the applicant’s defence that he was provoked in the killing.  This arose because of the applicant’s suspicion of infidelity of the deceased and her demand for a divorce.  From the evidence there were clearly marital problems between the parties and the applicant was provoked into carrying out the killing when the deceased demanded a divorce.  The applicant had offered to plead guilty to manslaughter by reason of provocation before the trial.  These are mitigating factors. 

18.However, at the same time, the violence used in this case was excessive.  A hammer was used to attack the deceased and there were four fractures to her skull.  Even if the applicant was provoked, the degree of violence was clearly a relevant factor to be taken into account in sentencing.

19.We have sympathy for the children who have to face the family tragedy in their young lives.  We have read their letters addressed to the Court.  They have expressed their forgiveness of the applicant and asked for leniency of sentence. 

20.But the Court is required to consider all the circumstances of the case.  And having done so, in our view, the sentence of eight years’ imprisonment cannot be described as manifestly excessive.  Accordingly we dismissed the application.

Ms Mary Sin, SADPP of Department of Justice, for the Respondent

Applicant, in person, present