CRIMINAL CASE NO. 352 OF 2010
COURT: The accused was charged with murder. She asks the jury not to convict her of any offence at all. In the result, she was acquitted of murder by a majority of six to one, and unanimously convicted of the lesser offence of manslaughter.
In the witness-box, she said that she had never been in trouble with the police before. She gave and called evidence of her good character, and she put herself forward as someone who had been abused by her elder son.
In all of these respects, the jury was presented with a misleading picture. I say that for the following reasons. After the court was informed that the jury had reached a verdict and before they came back into the courtroom, the prosecution informed the court for the first time that the accused had a criminal record. She has a previous conviction in 1995 for assault occasioning actual bodily harm and a previous conviction in 2001 for ill-treatment or neglect of a child or young person, that child or young person being the elder son. This is the son whom she said had abused her.
I say nothing that might prejudice any prosecution for perjury that might be brought against the accused. But in pointing out how badly the court has been let down by the prosecution in this case and in emphasising the great care that must be taken to prevent any further repetition, I shall say this.
The accused was charged with a crime of violence, and her conviction for assault occasioning actual bodily harm is a crime of violence even though for a far less serious offence of violence committed a long time ago.
In the present case, the accused put forward an account to the effect that her mother, whom she killed, was the violent one and that all that she was doing was trying to restrain and calm her mother.
Because her previous convictions were hidden from the court, the accused obtained a good character direction to the jury in her favour; and of course the picture of her as someone who was abused by her elder son was not queried as it could have been. It could have been queried by reference to her conviction of an offence, also of a physical nature, committed against him.
As to the relevance of character to the jury’s verdict, one indication of such relevance and the considerable extent of such relevance is the trouble which the defence went to in order to put the accused forward as a person of good character. This appears to have been a highly material matter in respect of which the jury were misled.
How was it possible that the jury could have been misled like this? The answer is that the prosecution did not take the elementary steps which should be taken. Mr Walter Lau who is prosecuting counsel in this case was not told, nor does it seem that he ever inquired, about the accused’s record. This was despite plenty of warning that the accused would be putting herself forward as a person of good character. It was despite her having said in the witness-box that she had never been in trouble with the police before.
That Mr Lau could have been told of the accused’s criminal record without difficulty or delay is evidenced by the fact that the record was obviously available in the courtroom and was handed to the court after the jury had indicated that they had reached a verdict. I notice that the antecedents statement, which indicates the existence of a criminal record, is dated 28 April this year.
How any blame is to be allocated between Mr Lau and the police officer or officers handling this case is not a matter for me. It can be gone into at other times and in other places.
Above all, let there be no repetition of this kind of thing.
As for the sentence to be passed on the accused, I will leave aside the misleading of the jury, and I will not take her previous convictions into account in assessing the sentence. She is to be sentenced for her offence, not her record.
Prior to the start of the case, the defence had written to the prosecution offering a plea by the accused to manslaughter. That offer was turned down. As to that sort of situation, I will read this statement from another case:
“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.”
That statement is cited at page 322 of the 6th Edition of Cross & Cheung on Sentencing.
I am doubtful as to whether the offer should attract any discount in the present case. I of course treat the accused as guilty of manslaughter only. But on the question of a discount, the acquittal of murder may have resulted from the misleading by the accused of the jury. I say that having listened to the evidence and arguments throughout, observing the jury during the trial and seeing the look on the faces of the jurors when it became apparent to them that they had been misled.
Ultimately, however, I will, erring on the side of leniency perhaps, give some discount for the offer.
As to the kind of manslaughter I should treat this as, I had been minded to proceed on whatever basis defence counsel might propose. But the circumstances have changed. If the jury had been asked, I think that they would have said that it was unlawful act manslaughter; but even if they had been asked and said something different, the problem now is that they would have said that having been misled as to the accused’s character.
In the circumstances, I think that I should judge for myself what the proper basis for sentencing is as far as the type of manslaughter I should treat this as.
It so happens that unlawful act manslaughter is what the defence had offered a plea to before the case started, and I feel sure that the proper course is to treat this as unlawful act manslaughter. I so treat it.
I have considered with care everything urged in mitigation, including of course what has been said about the accused’s circumstances. I have also borne in mind that the unlawful taking of a human life is a very serious matter. This is of course so when the life was taken by an unlawful act such as an assault. But I may add that it would be so even if the taking of the deceased’s life had been by gross negligence. It would have been gross negligence on a high scale.
As it is, it was an assault of a serious kind: with the accused above and astride the deceased who was lying on the ground, pressing the deceased’s neck with sufficient pressure to fracture the hyoid bone.
All things considered, I adopt a starting point of 7 years and reduce it by 1 year for the plea offered.
I sentence the accused to 6 years’ imprisonment.
I direct that the papers in this case, including a transcript of what I have just been saying, be sent to the Director of Public Prosecutions. It is for him or someone in his Section of the Department of Justice to consider a prosecution of perjury and to advise as may be necessary on steps designed to prevent repetition of what happened in this case.