HKSAR v. Wong Kam Shing, Jackie

HCCC297/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 297 OF 2008

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Transcript of the Audio Recording
of the Sentence in the above case

COURT:  The most sensible view of the jury’s verdict of guilty of manslaughter is that they found that you killed the deceased with intent to kill him or at least to cause him really serious injury but that you acted under provocation which reduced what would otherwise be murder to the lesser offence of manslaughter.

Indeed, provocation is the basis upon which your counsel has asked me to sentence you and it is, in the circumstances, the most favourable basis from your point of view.  The provocation was cumulative and considerable, but the violence was considerable too.  It involved getting a knife and using it repeatedly on vital parts of the human anatomy, the head and the chest. 

On your behalf, very harsh things have been said about the deceased.  I will sentence you on the basis that he was indeed a debt collector who had subjected you to the things which you allege.  But I should say, for the benefit of the deceased’s family, that I am making no finding against him or his memory.  It must not be forgotten that for the crime for which you are being sentenced, he is the victim and, indeed, the victim of an unlawful killing.

You have a family, and so did the deceased.  Your family still has you.  His family has lost him.  I have sympathy for both families, but I must pass sentence not upon sympathy but upon justice according to law.

I have considered everything said on your behalf by your counsel.  All things considered - and that includes all the cumulative provocative conduct - I adopt a starting point of 7 years’ imprisonment.

The mitigation available to you is your previous good character and the fact that you tendered a plea of guilty to manslaughter.  Such a plea would normally attract a discount of one-third.  But guilty pleas do not always attract a one-third discount.  It has been said in a case, which I should mention is referred to in page 283 in the 5th and latest edition, rather than in the 4th edition which your counsel cited, of the book on Sentencing by Mr Cross and Mr Cheung that “a challenge to the facts, if unsuccessful, may, depending on the circumstances, place a defendant in a position less advantageous than had he pleaded guilty and accepted the true facts of the case.”

In the present case, you went even further than that, and sought an outright acquittal.  On the basis of the evidence which you gave of self-defence, your counsel did not ask the jury to convict you of manslaughter and, instead, asked the jury to acquit you outright.  That could only be on the basis of self-defence, and the jury has rejected that defence.

This case is different from the case of HKSAR v Francisco Reynaldo F[2000] 3 HKLRD 688 cited by your counsel.  In the present case, it can be said that the self-defence should not be regarded as a defence that you were actually pursuing.  It cannot be said that it was not a defence that you intended to make. 

Some attempt was made for you to get the full benefit of having tendered a guilty plea while at the same time asking the jury, as your counsel did when addressing the jury on your behalf, to find you not guilty of any offence at all.  When addressing the jury, your counsel said to them that once the prosecution rejected your plea of guilty to manslaughter, “all bets were off”. 

To permit such an attempt to succeed would expose the legal system to a real risk of abuse and would be unfair to accused persons who, having tendered a plea of guilty to manslaughter on a murder charge, ask the jury to convict them of manslaughter. 

The case of Francisco Reynaldo F does not say that there should be a one-third discount in a case like the present one.  If anything, it says that a one-third discount is not for a case like the present case.  The general sentencing principle is well-known and was stated by the Appeal Committee of the Court of Final Appeal in the case of the fire which occurred at the Immigration Tower, FAMC Nos 1 and 2 of 2004, Sze Kwan Lung & Others v HKSAR, 5 March 2004, where this was said: 

“We will deal with sentence first.  Sometimes a defendant who faces a murder charge offers to plead guilty to manslaughter.  If his offer is rejected by the prosecution, he has a choice.  He can fight the case on the basis that he is not guilty of murder but guilty of manslaughter. Or he can fight the case on the basis that he is not guilty of any homicide. There is a considerable difference between these two courses.  If the defendant is convicted of manslaughter after pursuing the first course, the full one-third discount of sentence for a guilty plea is normally given.  But if he is convicted of manslaughter after pursuing the second course, something less than a one-third discount is normal. Is it reasonably arguable that there is a departure from accepted norms in the extent to which the discounts given by Gall J fall short of one-third?  In all the circumstances, we think that that is not reasonably arguable.  Accordingly, we refuse leave to appeal to the Court of Final Appeal against sentence.”

I will give you a discount of one-fifth for the plea of guilty to manslaughter which you had tendered.  Rounding that up in your favour, that means a discount of 17 months.  Deducting 17 months from 7 years leaves 5 years and 7 months.  I will give a further discount for your previous good character so as to reduce the sentence ultimately to 5 years’ imprisonment.

I have indicated in detail how I arrived at that sentence, and I should also say that I have tested it by looking broadly at all the circumstances as a whole.  Doing so, I also think on that broad basis, that 5 years is the appropriate sentence in this case as decided by the jury’s verdict.

You and your family may feel that 5 years is too much.  The deceased’s family may feel, perhaps even more strongly, that 5 years is too little for the taking of his life.  However all of that may be, my duty, having closely followed all the evidence day after day and having considered everything put forward and urged in mitigation, is to pass a sentence as appears appropriate upon an impartial application of the court’s sentencing power and discretion.  And that is what I do.

Therefore, I sentence you to 5 years’ imprisonment.