CRIMINAL CASE NO. 41 OF 2011
COURT: On 4 October 2011, a jury found you not guilty, by a majority, of the murder of your wife, Madam Song Ziqin, but guilty, unanimously, of her manslaughter.
The evidence has established that on 28 June last year, during a heated argument between you and your wife which was loud enough to be overheard by neighbours in the adjacent village houses, you splashed no less than two bottles of corrosive fluid containing a concentration of almost 70 per cent sulphuric acid over the head and into the face of your wife.
Despite receiving urgent treatment in the Intensive Care Unit and subsequently in the Burns Unit of Prince of Wales Hospital, Madam Song was certified dead on the morning of 27 July 2010.
The injuries inflicted on Madam Song were horrific, so horrific that prosecuting counsel took the undoubtedly correct decision that the photographs of her injuries should not be placed before the jury. However, they have now been produced before me, as sentencing judge, as Exhibit P58, to show the full horror of what you did and the agony which Madam Song must have suffered for almost a month before she died. Some of them serve as graphic testimony to what the forensic pathologist, Dr Lam Wai‑man, found were extensive excoriated skin wounds all over the deceased’s head, face and neck, including her eyelids and right external ear, her lips and left external ear being almost completely lost, and the cornea of both eyes being opaque. The excoriated skin wounds continued all over the front and back of the deceased’s upper chest down to the right middle front of her chest, and involved the inner part of her right breast, over both upper limbs, down to the tips of her fingers, and over the front and sides of her left and right lower limbs, down to the left ankle and dorsum of the right foot. He found that over 30 per cent of her entire body had received full thickness skin chemical burns, commonly known as third-degree burns.
It seems likely that the spread of acid occurred when water from a showerhead carried the acid down her body, and it must be accepted that having realised the appalling consequences of what you had done, not only did you yourself make a 999 call, but you made frantic efforts to wash the acid off her body.
You will have to live the rest of your days with the knowledge of the horrific injuries which you inflicted on your own wife and the agony which she must have endured before finally succumbing to those injuries. You will also know that what you did was done in front of a 9‑year‑old girl of whom you were the father and for whom the deceased was the mother. Although a psychologist with the Social Welfare Department reports that he or she sees no need for psychological service at this stage, and your daughter urges that I deal with you leniently, we cannot know what will ultimately be the full emotional impact and effect on your daughter, as she goes from childhood to adulthood, of having witnessed with her own eyes what was done to her own mother by her father. You have taken away her mother, and you have also taken away the mother of your stepson, who although not at home at the time of the incident, was a schoolboy of 17 and living in the same house.
On the first day of this trial and prior to the jury being empanelled, you pleaded not guilty to murder, but guilty to manslaughter on the basis of provocation. The prosecution did not accept your plea, and the matter proceeded to trial. It is fair to say that in the course of your evidence, you accepted that you had committed manslaughter by reason of provocation, and you confirmed that you had pleaded accordingly at the outset of the trial.
However, during your evidence, you claimed that your mind had gone blank during the critical moments, and you were unable to explain how or why it was that you had come to splash the corrosive fluid on the deceased. You also claimed you did not realise the corrosive power of the fluid in the bottles.
Accordingly, it became necessary to put before the jury an alternative way of looking at the offence of manslaughter, namely manslaughter by way of an unlawful act. Having done so, I directed the jury that since there were two ways by which they could arrive at a verdict of manslaughter, I would be giving them a questionnaire so that they could state whether the verdict was one of manslaughter by reason of provocation or manslaughter by way of an unlawful act.
I explained to the jury that that could help me in determining the appropriate sentence for the offence. I then said this:
“However, if you are divided as to which form of manslaughter it is, or do not wish to say, you may simply say ‘Not guilty of murder but guilty of manslaughter’, because the actual verdict is manslaughter.”
In giving that direction, I was adopting the practice of inviting the jury to state by which route they had reached their verdict, a practice for which the origin is the five‑member English Court of Appeal decision in Matheson [1958] 42 Cr App R 145. In acknowledging that they might agree on the verdict but differ as to the route by which they arrived at that verdict, or simply did not wish to say, I had in mind the practice approved in Jones [1999] The Times 17 February 1999, where Lord Justice Rose, giving the judgment of the Court, held as follows:
“In our judgment, in many, though not all, cases where there is more than one possible basis for a verdict of guilty of manslaughter, it may be convenient and desirable for a judge to invite a jury to indicate the basis on which they return their verdict. The judge may do this by handing a series of written questions to the jury in the course of the summing‑up. Those questions may identify the different possible verdicts, not only as between murder and manslaughter, but also as to the reason for the verdict of manslaughter if such a verdict is to be returned. Alternatively, a judge may, in an appropriate case, without submitting any such written questions to the jury in the course of his summing-up, provided he has, in the course of his summing-up, warned the jury of his intention to ask the question, ask the jury, after they have returned a verdict of guilty of manslaughter, what is the basis of their verdict. There is no obligation on a jury to respond to such a question.”
The Court went on to say this:
“The purpose of such an inquiry, if the trial judge sees fit to make it, is to help the judge in relation to sentence. The answer to the inquiry will provide the judge with additional information. The response of the jury is precisely that. It affords, as it seems to us, an explanation as to why a verdict of not guilty has been returned in relation to murder. It does not, as it seems to us, provide any necessary indication as a matter of law, as to the route by which the verdict of guilty of manslaughter has been reached. In our judgment, provided the jury are agreed that a defendant is guilty of manslaughter, in the sense that they are sure that he perpetrated an unlawful act which caused the death of the deceased, it is unnecessary that there be any unanimity by the jury as to the route by which that verdict is reached. Indeed, it is implicit in what we have said that the considerations adverted to in Brown,as to the need for a jury to be unanimous as to the ingredients of the offence and the facts substantiating those ingredients, do not have any application in the present circumstances.”
When the jury delivered its unanimous verdict of guilty on the alternative offence of manslaughter, they were asked whether their verdict of guilty of the offence of manslaughter was on the basis of provocation or on the basis of an unlawful act. The foreman initially responded by asking whether he could say “no”, which he immediately clarified to mean that the jury did not wish to say.
The question now arises as to the basis upon which I must sentence the defendant. Mr Boyton submits that I should approach sentence on the basis most favourable to the accused. He argues that implicit in the jury’s verdict was the possibility of a verdict of manslaughter by an unlawful act, and that since the sentences are customarily less for unlawful act manslaughter than for manslaughter by reason of provocation, I should adopt a sentence lower than I would otherwise adopt had the jury explicitly found the defendant guilty of manslaughter by reason of provocation.
I will deal with the merits of the argument that one form of manslaughter automatically merits a lesser sentence than another in due course. I wish first to deal with the argument that I must necessarily sentence the defendant upon the basis of manslaughter by an unlawful act rather than manslaughter by reason of provocation.
When this matter was last before the court, when I had to adjourn the question of sentence because of Mr Adams’ indisposition, I drew the attention of the parties to the case of Byrne [2003] 1 Cr App R(S) 68, where the English Court of Appeal made clear that:
“Where a defendant is convicted of manslaughter and the jury do not indicate whether the verdict has been reached on the basis of provocation or absence of intent, a sentencing judge may determine the basis of the conviction himself, but should explain his reasons for his conclusion.”
It seems to me that it does not matter whether the jury were or were not invited, in the body of the summing-up, to indicate by which route they arrived at the verdict of manslaughter. What is important is that the jury in the present case clearly stated when asked that they did not wish to say by which route they had arrived at their verdict.
As a matter of interest, and since her case was earlier cited to me by Mr Boyton, much the same thing happened at the retrial of Sara Thornton before Scott‑Baker J at Oxford Crown Court in 1996. When the jury returned a verdict of manslaughter, the judge inquired if they were able to say whether the basis of the verdict was provocation or diminished responsibility. The jury foreman said the jury were not able to say. The judge then proceeded to interpret the verdict as one of manslaughter on the grounds of diminished responsibility and rejected provocation as the basis of sentencing. Arguably, that was not the most favourable basis for sentencing that particular defendant, but it is fair to say there was no appeal from the sentence.
I cite that case as a matter of anecdotal interest only. As a first instance decision, it is simply a well‑known illustration of the principle which was later to be articulated in Byrne. Of perhaps more significance is the English Court of Appeal case of Cawthorne [1996] 2 Cr App R(S) at page 445, in which the jury had been asked by the trial judge whether they would be prepared to indicate the basis upon which they had found the verdict of manslaughter. However, the foreman of the jury in that case also declined to do so. It was argued that the judge should have sentenced on the basis of the version of the verdict which was most favourable to the appellant. The Court of Appeal, in which, coincidentally, Scott‑Baker J was a member of the court, rejected that argument and held that the judge was entitled to sentence the appellant on the basis of the facts which he had heard in evidence as they appeared to him to be.
There is an interesting commentary on this case, and the problem which it addresses, in [1996] Crim LR 526 at page 527, which concludes that:
“For practical reasons, so as not to complicate the jury’s task, the safest course in such circumstances is for the judge to form his own view on the evidence which has been heard.”
In Solomon v Triumph [1984] 6 Cr App R(S) 120, the Court held that the jury was not bound to answer any question put by the judge, and went so far as to say that the judge was entitled in sentencing a defendant to reach his own view on the facts even if the jury did express their own opinion. It referred in particular, for an illustration of this principle, to the case of Whittle [1974] Crim LR 487, where the appellant, charged with murder, had been convicted of manslaughter. However, it emphasised that a court was not entitled to sentence an accused even after hearing evidence upon a basis of fact which would imply that the accused had committed a further offence or offences with which he had not been charged or for which he had not been tried. I should make clear I am not here concerned with that situation. There is no question in this particular case of me coming to a view different from, or at variance with, the jury because the jury expressly declined to say the basis of their verdict of manslaughter.
In conformity with the decisions to which I have just referred, I propose to determine sentence on the basis of my own view of the evidence and the verdict. I have heard the evidence, and I am perfectly able, the defendant having been acquitted of murder and convicted of manslaughter, and the jury having declined to explain by which route they arrived at their verdict, to decide the basis of my sentence for manslaughter.
In my view, this was a clear case of manslaughter by way of provocation. During my directions to the jury on provocation, I briefly summarised the provocation which the defendant testified he had received from the deceased in the days and weeks leading up to 28 June 2010. This included her taunting of him about his courting other women, and her unwillingness to forgive him; her tormenting him about her own apparent sexual affairs; her bullying treatment of him as a slave with four unreasonable conditions attached; her insults about his uselessness, age and inabilities as a husband and father; her belittling of him in front of their daughter; her physical abuse of him, including hitting his head and urinating into his mouth; her controlling his money and requests for $200,000; her destruction of his telephones which recorded his poems and other personal details; her tearing up of his work certificates, qualifications and travel documents; her wayward habits of going out late, apparently with other men; her excessive drinking and her unreasonable demands when she came home; and her volatile behaviour generally during this period.
I also summarised his evidence of the taunts and insults he said he had received on 28 June itself, which included the humiliation of finding his wife still chatting on the internet with other men; her countermanding his instruction that their daughter should go to school; her telling him to message his sister that he was going to commit suicide and her own apparent sending of a message to his sister about his suicide; her threat to report him to the police for something he had not done; her attempt to grab his testicles and her pushing him from behind, which caused him to bump his head; her telling him that she wanted money, but there was no money; and that she wanted a man, but she did not have one; and that he was a useless, ugly old man who had better go.
I cannot say which of those particulars the jury would have accepted or more readily accepted. The defendant’s stepson and daughter do not appear to have noticed the extent of the arguments and provocation to which he testified, although children may not always appreciate what is going on between their parents when they are asleep or at school. However, your daughter did confirm in her testimony that you had been stabbed by the deceased and expelled from the house some time before the incident of 28 June 2010.
There was also, in my view, incontrovertible evidence from the third defence witness, Miss Yu Hoi ling, a social worker with the Home Violence and Child Welfare Unit of the Social Welfare Department in Sha Tin, who saw you on four occasions prior to the incident, and who testified that you and the deceased were obviously having problems with your marriage. There was further incontrovertible evidence from the fourth defence witness, Miss Abby Lam, a social worker with the Tung Wah Group, who confirmed that you had applied to move into men’s sheltered accommodation and infact did so on 16 April 2010 for 11 days. On 17 April, your daughter had moved in to stay with you.
Miss Lam confirmed receiving from you by fax Exhibit D3, an incident review or record written by you detailing the behaviour of your wife. There was an issue as to the date on the document, which she said she had received on 2 June 2010, but it is clear nevertheless that the witness did receive the document in question. She told the jury that in her assessment, you wanted the marriage to work despite its problems.
However, in deference to the deceased, who has not been painted in a flattering light by your evidence, I should say that your own conduct revealed you to be a somewhat selfish and insensitive man. Exactly what your relationship was with the lady from the mainland, with whom you say you exchanged no more than poems, only you will know, but it should hardly have surprised you that your wife should have reacted so strongly when she found out about her. Certainly your daughter formed the impression that it was you that had had the affair and you who were asking your wife for forgiveness.
However, I am prepared to accept, for the purposes of sentencing, that there was significant provocation in this case which amply explains the jury’s verdict of manslaughter. The issue of manslaughter by way of an unlawful act arose out of an abundance of caution on my part in view of your own evidence that, although you knew of the existence of the bottles of drainage fluid on a shelf outside the house, you had no idea how powerful and damaging it could be. Accordingly, a direction was called for to cater for the possibility that you may not have intended to cause Madam Song really serious bodily harm.
However, one must remember that in this case, not one, but two bottles of drainage fluid, each with two separate caps or tops, were opened and poured over the deceased, leaving almost nothing left in those bottles. One bottle was found on the floor of the living room, the other in the toilet of the bathroom. Even allowing for the very unlikely possibility that an intelligent man might not realise the consequences of a small quantity of drainage fluid on someone’s skin, the idea that you could open and empty no less than two whole bottles over the deceased’s head and face without realising the destructive power of the contents is, to my mind, fanciful.
Notwithstanding your evidence on this matter, the plea which you entered before me prior to the empanelment of the jury accords with the only realistic way of looking at the facts and evidence in the light of the jury’s verdict.
Accordingly, for the reasons which I have explained, I reject the submission, put somewhat faintly it is fair to say by Mr Boyton, that I should treat this case, for the purposes of sentencing, as one of manslaughter by way of an unlawful act.
However, I should also make clear that I do not accept the thesis that sentences for manslaughter by way of an unlawful act are automatically less than sentences for manslaughter by way of provocation. In general terms that may often be the case, but it cannot be an infallible rule. There are some extremely serious examples of the former where sentences of 8 or 9 years have been upheld even for pleas of guilty, and corresponding examples of much lighter sentences in the latter where the provocation was considerable.
In HKSAR v Lau Bo Ki Cr App No. 412 of 2005, the Court of Appeal, in allowing an appeal against conviction for murder and substituting a finding of guilty of manslaughter, itself passed a sentence of 16 years’ imprisonment where an elderly lady had died an horrific death from chemical burns just over a month after the appellant had poured concentrated sulphuric acid into her flat. That would have been a sentence of 16 years after trial for manslaughter by way of an unlawful act involving the use of acid. On a plea of guilty, the sentence would have been more than 10 years imprisonment.
Furthermore, with respect, I cannot see any relevance to the English authorities on levels of sentence for what are known as “single punch” or “single blow” manslaughter cases. Two of the cases on which Mr Boyton relies, namely Coleman [1992] 13 Cr App R(S) 508, which was approved in Cannon [2001] 1 Cr App R(S) 286, and which gave rise to a long line of single punch manslaughter sentences in England, must now be read subject, in that jurisdiction, to Attorney‑General’s Reference No. 60 of 2009 [2010] 2 Cr App R(S) 311, where a five-member division of the Court of Appeal headed by the Lord Chief Justice held, at 318:
“The sequence of decisions of which Coleman provided authoritative guidance was based on a formulation of the approach of the courts to sentencing that is no longer appropriate. What is now required, without of course diminishing the attention to be paid to the actions of the defendant and his intentions at the time and the true level of his culpability, is that specific attention must be paid to the consequences of his crime.”
I am alive to the fact that the Court of Appeal was there considering the effect of the Criminal Justice Act of 2003 on levels of certain sentences in England. Nevertheless, the courts in Hong Kong have given vent to that principle for many years. Indeed, as long ago as 1994, the Court of Appeal here expressly declined to follow sentencing levels in the United Kingdom in such cases as Coleman. In R v Lo Bing Sun, Cr App No. 660 of 1993, the Court said of such cases, and Coleman had been expressly cited to it:
“That may well be the sentencing norm in the United Kingdom. In my judgment such norms are seldom, if ever, applicable to Hong Kong. Our circumstances and conditions are very dissimilar to those pertaining in England. These courts do not see the ‘pub row’ type of offence for that is not prevalent in Hong Kong. But this city is a very crowded and tense environment and the unlawful and dangerous act constituted by the blow such as the one here must be deterred. The huge variety of circumstances in which the offence of manslaughter is committed leaves sentencing very much at large. We must be conscious of the fact that a human being has lost his life. It needs to be emphasised that the landing of the comparatively mild blow on the face of the deceased, of itself, did not cause injury of any consequence.”
Cases in which acid is used to maim and disfigure are viewed with particular severity in Hong Kong, with a particular emphasis on deterrence, partly because these cases are, regrettably, not uncommon, and partly because of the ease with which anyone may buy corrosive fluid with significant concentrations of highly destructive acid such as sulphuric acid.
On the question of deterrence in such cases, the Court of Appeal has very recently held in HKSAR v Cheung Cho Fat Cr App No. 306 of 2009, a case in which a husband had been charged with throwing corrosive fluid, with intent to do grievous bodily harm, at his wife, contrary to section 29(c) of the Offences Against the Person Ordinance, Cap. 212, at paragraph 59, that:
“As to the matter of deterrence, it has long been recognised that the throwing of acid at a person is a particularly vicious crime, one viewed with understandable abhorrence by right‑thinking members of society. Almost always, as in the present case, the person’s face is chosen as the principal target, the inevitable intent being to disfigure in a permanent and grotesque way.”
In Cheung Cho Fat the Court referred to the earlier decision in R v Wong On Lin [1995] 1 HKC 659, where a husband, believing that his wife was having an adulterous relationship, poured drainage cleaner containing sulphuric acid over her face. She was left badly disfigured and emotionally traumatised. After trial, the court chose a starting point of 15 years’ imprisonment, reducing it by 2 years on account of certain mitigation.
The Court of Appeal in 1995 considered that sentence to be entirely proper. I appreciate that these cases, where no death resulted, were brought under specific provisions of the Offences Against the Persons Ordinance, Cap. 212, dealing with the throwing of corrosive fluid with intent to cause grievous bodily harm, and that there are a range of factors which will determine the particular seriousness of such an offence, although the maximum penalty for the offence is in fact the same as that for manslaughter. I cite them simply to demonstrate the particular concern of the courts in Hong Kong to deter people from resorting to the use of corrosive fluid to settle their grievances.
Defendant, in this case, as I said at the outset, the deceased was subjected, by your acts, to horrific injuries from which ultimately, and perhaps mercifully, she died, but not before she would have endured almost a month of agony and incapacitation. We must never lose sight, whatever the provocation, of the fact that a life has been taken in the most horrific and excruciatingly painful circumstances, and that your own daughter had to witness what you did to her mother.
It is not generally necessary in manslaughter cases to identify a particular starting point for sentence, but I intend to do so, albeit as a range, in order to explain how the provocation, as I have found it to be, has lowered that starting point and how I have arrived at the ultimate sentence.
Had the provocation in this case been minimal or slight, I would have considered, after trial, a sentence of 15 to 16 years’ imprisonment. As it is, I have accepted that the provocation in this particular case was significant. Allowing for that degree of provocation and giving it full force, I would still, in the circumstances of this case, have imposed a sentence after trial of 12 years’ imprisonment.
The question now arises as to what, if any, discount I should give to you for your plea of guilty to manslaughter by reason of provocation at the outset of the trial, which plea was not accepted by the prosecution. I have come to the view, notwithstanding that your evidence necessitated the jury being directed as to the further type of manslaughter by way of an unlawful act, which in turn has led to an already lengthy discourse on my reasons for sentence, that you are entitled to a substantial discount. An outright acquittal was never part of the defence strategy.
Wong Chi-sing, the sentence of the court is that you shall go to prison for 8 years.