R. v. Szeto Ken @ Szeto Shin

CACC000687/1996

IN THE COURT OF APPEAL

1996, No. 687

(Criminal)

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Coram: Bokhary, Liu & Mayo JJA in Court

Date of hearing: 6, June 1997

Date of judgment: 6, June 1997

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J U D G M E N T

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Bokhary JA:

1. This applicant is a man in his mid 30's. On February 8 last year, he killed his wife, from whom he had been separated for some time. As a result, he was charged with murder. He tendered a plea of guilty to manslaughter. That was on the basis that his offence had been reduced from murder to manslaughter by provocation. The prosecution accepted that plea. And so did the judge, Mr Justice Stuart-Moore.

2. Passing sentence on November 13 last year, the judge sentenced the applicant to 10 years' imprisonment.

3. The applicant now seeks leave to appeal against that sentence.

4. Shortly stated, the background is as follows. The applicant and the deceased first met in 1988 when she was working as a salesgirl at his father's emporium in Stanley Main Street. They got married a year later. One child was born of that union, a daughter now of primary school age.

5. At first, the marriage was a happy one. But then there came financial problems which led to a strain in the relationship between husband and wife. That all started in 1992 when the applicant's father's business deteriorated.

6. Then in 1994, the applicant opened two shops of his own in Stanley Main Street. After some initial success, his business at those two shops declined, as a result of competition from other shops which opened nearby.

7. To make matters worse, he turned to gambling and fell so heavily into debt and then into the clutches of loansharks that he had to flee to the Philippines in order to avoid those gentlemen.

8. After a time, he came to believe that his wife was having an affair with a Mr Lam back here in Hong Kong.

9. In December 1995, she presented a petition for divorce. Around that time, he made arrangements to transfer his interests in the two shops to his wife in order to put them out of the reach of his creditors.

10. On the night of February 6 last year, he returned to Hong Kong from the Philippines. He was met at the airport by his brother. And he stayed with that brother in Sheung Shui in order to avoid his creditors.

11. In the afternoon on the following day, February 7, he tried without success to contact his wife by telephoning her at her flat in Stanley New Street, which flat had been the matrimonial home, and also at the two shops.

12. The wife was out with Mr Lam. She had been with him: viewing silk garment samples in Central; then visiting a fortune-teller in Wanchai; then having dinner in Tsimshatsui; and then chatting in Mr Lam's shop also in Tsimshatsui.

13. At about 15 minutes past midnight - and therefore now on February 8, the fatal day - the wife and Mr Lam left Mr Lam's shop and went to the carpark at the Ocean Terminal.

14. The wife went to collect her car on the 3rd floor while Mr Lam waited on the 2nd floor.

15. Somehow the applicant had traced the wife's car. He was waiting for her by her car. When she arrived, he told her how badly he missed her, and asked her to have him back. Mr Lam came up.

16. In the result, the three of them went to a restaurant in Causeway Bay, travelling the wife's car, and getting there at about 1:20 in the morning.

17. At the restaurant, there was a discussion which did not go well. The applicant asked Mr Lam to leave so that he could talk to the wife on her own. But the wife and Mr Lam asked the applicant to leave instead.

18. In a very upset and agitated state, the applicant left the restaurant. He went back to the wife's flat and waited for her there.

19. Mr Lam accompanied the wife home but remained on the ground floor while she went up to the flat on the 2nd floor. From the flat she called Mr Lam on his mobile telephone and told him that she was all right. The agreed facts are silent as to whether she was aware of the applicant's presence in the flat when she told Mr Lam that she was all right. In any event and in the result, Mr Lam took a taxi to his own home in Shaukeiwan.

20. Inside the flat - and it was now about 3 o'clock in the morning - the applicant continued to beg the wife, to no avail, to have him back.

21. Finally, he asked her to spend one last night with him in exchange for his agreeing to leave her alone after that. Eventually, she agreed, telling him to be quick about it.

22. Sexual intercourse then took place. After that, the applicant asked the wife if she was having an affair with Mr Lam. She did not reply.

23. He then brandished a knife threatening suicide.

24. There was a quarrel. In the heat of that quarrel, the applicant stabbed the wife repeatedly, killing her. Then he stabbed himself in the abdomen; slashed his own left wrist; and dialled 999: saying that he had killed his wife and had to kill himself too.

25. When the police arrived, he let them into the flat. In their presence, he slashed his left wrist two more times.

26. The wife's body was found lying on the bed covered with blood. She was rushed to the Eastern Hospital where she was certified dead at 5:57 that morning.

27. Mr Mullick who had represented the applicant below has prepared five grounds of appeal against sentence. Those grounds have been argued before us by Ms Draycott who has replaced Mr Mullick as the applicant's counsel.

28. We will have to go into those grounds in some depth later on. At this stage, in order to give a broad understanding of what this application involves, we propose to quote those grounds, leaving out the particulars to the 1st, 2nd and 5th grounds and the details which follow the statement of the 3rd and 4th grounds. On that basis, they read:

"1. The sentence of 10 years' imprisonment, in the circumstances of this case, was manifestly excessive or wrong in principle.

2. The learned trial judge failed to give any or any sufficient weight to the issue of provocation.

3. The learned trial judge failed to take sufficient or any proper account of the mitigation factors.

4. The learned trial judge erred in not stipulating a starting point for sentence.

5. The learned trial judge erred in making unfair and unwarranted assumptions adverse to the [applicant], which were then taken as aggravating factors against the [applicant] in sentencing."

29. We now consider those grounds one by one.

30. In connection with the complaint that 10 years' imprisonment is manifestly excessive or wrong in principle in the present circumstances, Ms Draycott has cited a number of cases. We have considered all those cases, but do not propose to deal with them in an exhaustive fashion for two reasons. First of all, those cases do not themselves constitute an exhaustive list. And secondly, it has been rightly said that more than with any other offence, the circumstances in which the offence of manslaughter can be committed are infinitely various. And that is so even within just one category of manslaughter: here manslaughter which is committed when what would otherwise be murder is reduced to manslaughter by reason of provocation.

31. What were the overall circumstances? What was the provocation? Those questions are easy to ask. But the answers come back differently, sometimes very differently indeed, from case to case.

32. One of the cases cited by Ms Draycott is the decision of this Court in R. v. Lau Puk Yu, Criminal Appeal No. 402 of 1993; January 20 1994; (Unreported). There at p. 3 of the transcript, this is said:

" It is clear that Dr. Thomas in his book on the Principles of Sentencing indicates that there is a range for manslaughter cases on the grounds of provocation between 3 and 7 years, and this is to some extent supported by the case of Peddie [1990] 12 Cr. App. R (S) where it was held that "sentences for manslaughter by reason of provocation generally ranged from 3 to about 7 years' imprisonment. The sentences depended on the culpability of the Defendant in the particular case; much would depend on the nature of provocation offered by the victim."

Note the word 'generally'. It is quite impossible to say that the circumstances of this case were such that no sentence beyond seven years' imprisonment would be justified.

33. The first ground fails.

34. We now turn to the second ground, which is that the judge failed to give any or any sufficient weight of the issue of provocation. It is very difficult to see what the provocation was. The judge had a difficult task. He had to be faithful to the accepted plea which was one to manslaughter by reason of provocation. On the other hand, it was very difficult for him to see what the provocation was. He said:

" Nothing can bring back your young wife who was in the prime of her life, and I have no doubt this was in the most serious category of Manslaughter. I would be failing in my duty if I were to regard it in any other way. I accept that you were in a state of high emotion and felt that you had been provoked. She had one nothing deliberately to provoke you. On the other hand, you had let her down time and again by messing up both her life and your own. Your depression made you more easily provoked."

If there is a more favourable way of putting it for the applicant without being wholly unrealistic, then we have not been able to find it.

35. The second ground fails.

36. The third ground, as we have observed, is that the judge failed to take sufficient or any proper account of the mitigating factors. The mitigating factors set out in this ground as ones which it is said the judge should have taken into account, but failed sufficiently to take into account, are these:

"(a) the [applicant] had admitted being responsible for the killing at the outset, by calling the police immediately after the incident and giving his full cooperation to them thereafter;

(b) the [applicant] pleaded guilty to manslaughter at the earliest opportunity;

(c) the [applicant] is deeply remorseful for what he has done;

(d) The [applicant] was a man of a clear record."

37. We see nothing, whether by inclusion or omission, in the judge's sentencing remarks which gives us any reason to believe that he may have failed to take any of those matters into account to the full and proper extent.

38. The third ground fails.

39. The fourth ground, as we have said, is that the judge erred in not stipulating a starting point for sentence. Why he did not do that is made clear by this remark of the judge's.

"I do not consider it would be appropriate to nominate a starting point for precisely the same reasons that are set out in R v. LI Sau-ping that is Criminal Appeal 189 of 1995."

40. As has been pointed out Ms Draycott, that case was one of manslaughter by reason of diminished responsibility. Mr Bruce who appears for the prosecution says that he does not support the notion that stating a starting point is inappropriate in provocation cases. This ground of appeal, however, is not one on the basis of which we can interfere with the sentence if there is no other basis for interfering with it. We are aware of the facts and the sentence which the judge passed. We are not disadvantaged in judging this case by reason of the absence of a stated starting point.

41. The fourth ground fails.

42. So we come now to the fifth and final ground which is that the judge had erred in making unfair and unwarranted assumptions adverse to the appellant, which were then taken as aggravating factors against him in sentencing.

43. The basis of this submission is the judge's view of the sexual intercourse which took place between the applicant and his wife before he killed her. When Mr Mullick, who was then representing the applicant, came to the end of his mitigation, he said in traditional terms "unless your Lordship wishes to have any further assistance I don't think I...". He was interrupted at that point by the judge who said: "Well, there is one, I think, further aggravating factor in this case, that is what he did to his wife was tantamount to rape just before he killed her".

44. If that was in the judge's mind, it was perfectly correct that he should have put it to Mr Mullick for him to deal with it. And Mr Mullick did deal with it, receiving a perfectly patient hearing from the judge on the matter. What the judge thought by the time he had heard Mr Mullick is to be taken from his remarks when passing sentence and not the interlocutory remark which led to the further assistance which he received from Mr Mullick. And what the judge said when actually passing the sentence was this:

"Whether it was rape or not, you were able to persuade your wife to have sex with you on the promise that you would not see her again. When she finished, she still did not want you to stay, you killed her".

45. Ms Draycott said that to speak of rape in these circumstances is "to debase the coinage". She expanded upon that statement by saying that rape is a very serious offence, and that nothing short of it should be equated with it. That is certainly true.

46. On the other hand, there is another coinage not to be debased: which is loving intimacy between husband and wife. The judge could not bring himself to say that this woman had done anything which permitted him to view her as someone who had participated in such intimacy. And we do not blame him. There is no need to go over the facts again. We have recited those. She wanted to be rid of him at any price. Tragically, the ultimate price was her life.

47. Despite the skill with which Ms Draycott argued it, we are unable to accede to this application; and it is dismissed.

Representation:

Ms Charlotte Draycott (instructed by the Director of Legal Aid) for the applicant

Mr A A Bruce QC & Mr Sharman Lam (of the Attorney General's Chambers) for the respondent