HKSAR v. Cheng Hung Cheung

CACC000088/2003

CACC 88/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 88 OF 2003

(ON APPEAL FROM HCCC 139 OF 2002)

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Coram: Hon Stuart-Moore VP, Burrell and Lunn JJ

Date of Hearing: 9 January 2004

Date of Judgment: 9 January 2004

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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.On 18 February 2003, the Applicant pleaded guilty in the Court of First Instance before Beeson J to manslaughter by reason of provocation. He was sentenced to seven years' imprisonment against which he now seeks leave to appeal.

2.The judge, in her comprehensive sentencing remarks, set out the full background which had led to this killing. Amongst other things, she said:

"The defendant is aged 38 years old, he is married and has two children aged 9 and 4.

The provocation resulted from a relationship formed by his wife with a man .... she met at a place near her workplace. It appears .... that the relationship started at about Chinese New Year in (2001) and the relationship between the defendant and his wife broke down from that period up until the time of the killing.

The defendant believed that the deceased wished to court his wife and marry her .... removing her from the marital home. He said that his wife began to go out at night and he believed that she was going to meet the deceased.

There was an incident in mid-September of 2001 where the defendant's wife travelled to Shenzhen and was found by the defendant in the company of the deceased. At that point there was an incident where the defendant chased the deceased and punched him and told him to leave his family alone. He told the deceased not to see his wife again and believed that that had sorted the matter out.

However, there were further conversations between the deceased and the defendant's wife over the telephone and, again, the defendant telephoned the deceased and told him that he had broken up his family and ...., according to the defendant, the deceased said that he would not contact the wife again. In fact, it appears that he continued to do so.

By 20 December (2001), the defendant installed a recording device on the telephone and through that means found out that his wife and the deceased were still communicating. On the day before the killing, which was 27 December 2001, the defendant checked the tapes and heard a conversation between the wife and the deceased in which he learnt that they had met on 20 December at a time when the defendant believed that his wife had gone to work.

The defendant became very angry after hearing this recording and said that he wanted to beat the deceased up. He said, 'I was so angry I couldn't face it as a man. It is because he continuously did harm to my family.' However, although he was agitated on that occasion, he did nothing about it." (Appeal bundle p. 13)

Then, dealing with the day of the killing itself, the judge continued:

"On 28 December, his wife went to work. He went out to buy breakfast for his son. He said that at that point he saw the deceased in a lift lobby and that it was a strange direction for him to be taking and, as a result, he was suspicious that he was going to meet his wife at her workplace because it was about the time that she was to finish work.

He followed the deceased along a path and heard the deceased talking to a person he believed was his wife on the telephone. Telephone records confirm that a call was made from the deceased's telephone to the defendant's wife's telephone at 10.37 pm, sometime before the deceased was found after the attack.

The defendant became so angry that he picked up an iron bar from the ground. It's a 35 inch iron bar, apparently left behind after construction site activities or the building of a fence in the area, and he hit the deceased with it from behind. The deceased squatted down and tried to cover his head with his hands. The defendant left the scene and returned home.

The deceased was found some few minutes later by a passer-by and taken to hospital and he died there on 2 January. And the subsequent autopsy established that the cause of the death was the significant blow that he received from the bar." (Appeal bundle pp. 13-14)

3.The judge took into account several matters raised in mitigation including the Applicant's previous good character, his plea of guilty, and letters, including one from the Applicant's wife, requesting leniency. Importantly, the judge concluded that the attack, although a serious one on an unarmed man following which the Applicant had made no attempt to call medical assistance, had not been premeditated in the sense that the Applicant had not been armed with a weapon until he picked up the metal bar nearby.

4.The judge concluded by saying:

"There was an explanation for the defendant's animosity towards the deceased, and although that does not excuse his actions, it does establish substantial provocation, both cumulative and immediate.

The deceased had ignored the defendant's pleas that he stay away from his wife and appears, right up until the time of this incident, to have been urging her to leave the (deceased whose) contacts with her were apparently becoming more blatant. It is in those circumstances that the defendant lost control and committed this offence.

In his interview to the police, he told the police that he was very enraged and picked up the iron bar off the ground to strike the deceased to stop him. He said, 'I hated this person very much. At that time I could not control myself. As to how much strength I used I do not remember. I was very angry because this person had ruined me for one year and kept on causing great suffering to my family. I indeed was very unhappy. I read the newspaper and learned this person had been admitted to hospital. It seemed he was in a coma. When I learned it (from) the newspaper I was very unhappy.'" (Appeal bundle p. 15)

5.After giving consideration to six previous decisions of this court in other manslaughter cases, the judge then imposed a seven-year term.

6.Mr Paul Loughran, on the Applicant's behalf, brought to our attention four of the cases considered by the judge in support of his submission that the sentence was manifestly excessive. In particular, his grounds of appeal complained that insufficient regard was paid to:

"	(a)	the nature and effect of the provocation existing;
	(b)	the spontaneous and unplanned carrying out of the crime;
	(c)	the Applicant's remorse (shown by his desire to surrender to the police and plea of guilty); (and)
	(d)	the Applicant's plea of guilty."

7.Mr Loughran was unable to say that any of the matters most significantly in favour of the Applicant had been left out of the judge's consideration. Plainly, all of these factors had been taken into account. Mr Loughran's approach, however, was to lay emphasis on all material aspects of the mitigation and to suggest that insufficient weight had been given to them.

8.Mr Loughran laid particular stress, amongst other things concerned with the gravity of the provocation, on the length of time over which the deceased had been seeing the Applicant's wife and even telephoning her when she was in the Applicant's presence; the deceased's broken promises that he would no longer see the Applicant's wife; the Applicant's chance sighting of the deceased on 28 December 2001, followed by the "last straw" when the Applicant was able to hear the deceased speaking on a mobile telephone to the Applicant's wife. These factors gave rise, it was argued, to substantial provocation deserving greater recognition than the judge had given when passing a sentence of this length, particularly when considered with the Applicant's apparent remorse for what he had done.

9.Mr Kevin Zervos, SC, for the Respondent, on whom we did not need to call, submitted in his written argument that bearing in mind the long-term relationship between the deceased and the Applicant's wife, of which the Applicant had for some time been aware, and the callous nature of the attack on the deceased, the sentence was within the appropriate range.

10.The present case is not concerned with behaviour on the deceased's part which was designed to be deliberately provocative. This was a by-product of his relationship with the Applicant's wife of which the Applicant was well aware. When the Applicant discovered that this may have resumed, contrary to his hopes and expectations, he was no doubt disappointed. The Applicant appears to have been unable to accept that his marriage had broken down. What happened thereafter, with the Applicant following the deceased and launching an attack on him of great severity on a public pathway which ultimately led to his death, bearing in mind the sanctity of human life, called, in our opinion, for a substantial sentence.

11.We do not, therefore, feel inclined to say, on the present facts, that the sentence was inappropriate. We cannot overlook that this was, as the judge rightly described it, "a serious attack on an unarmed man". The nature of the weapon, and the obvious force of the blow which the Applicant delivered to the back of the deceased's head, left the deceased with no chance. If the Applicant was to have justified greater credit for his remorse thereafter, this might have been accomplished if he had called for immediate medical assistance. Instead, the Applicant went home leaving the deceased unattended.

12.As there are no grounds for interfering with the sentence, this application is dismissed.

Representation:

Mr Kevin P. Zervos, SC, SADPP, of the Department of Justice,for the Respondent.

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