HKSAR v. Fong Tsz Yeung

HCCC 282/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 282 OF 2014

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REASONS FOR SENTENCE

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1.Fong Tsz-yeung, the defendant, has pleaded guilty to a single count of manslaughter. The particulars were that he, on 21 January 2014, unlawfully killed Li Shui-yeung.

2.The defendant and the deceased were unknown to each other and the circumstances leading to the killing of the deceased were as follows.  In the evening of 12 January 2014, the deceased who was 58 years old, had been dining with friends in a restaurant at Lockhart Road, Wan Chai.  He had been drinking heavily.  The group left the restaurant and the deceased parted from his friends.  It was about 10.40 pm.  It appears he staggered across the road and asked a female for a light but she ignored him as she believed he was drunk.  There was also present nearby a cook who was taking a break at the time.  He was smoking and talking to his wife on the phone.  They were both eyewitnesses to the incident that led to the death of the deceased. 

3.The deceased passed a seven seater vehicle and started urinating behind it.  The driver of the vehicle who was the defendant alighted and started swearing and telling off the deceased.  The defendant is a young man of the age of 26 years.  It was while he was scolding the defendant that he suddenly hit him with his right hand striking the deceased forcefully to his left cheek and neck.  The deceased fell backwards onto the ground and was lying motionless face up.  The cook heard a big “boom” sound when the deceased hit the ground.  The defendant kept scolding the deceased saying words to the effect that it was just one time and don’t pretend.  A male and a female passenger of the seven seater vehicle, who had also alighted, talked to the defendant, whereupon they returned to the vehicle and drove off.

4.The incident was reported to the police and an ambulance arrived at the scene at about 10.54 pm.  The ambulance officer examined the deceased but observed no conspicuous injury to him.  When he asked the deceased questions and tried to examine him, he was uncooperative.  The deceased told him to go away and not to bother him.  The ambulance officer observed that he had been drinking as he could smell alcohol on him.

5.The deceased was taken to the Accident and Emergency Unit of Queen Mary Hospital. At about 11.15 pm, a nurse carried out a preliminary examination who found that all vital signs of the deceased were normal.  He responded to questions and told the nurse to notify his wife. 

6.At about 5.10 am the next day, the condition of the deceased had deteriorated and a brain scan was performed which showed that acute bleeding was taking place inside his head.  He was taken immediately to the Pamela Youde Nethersole Eastern Hospital for emergency surgery.  It was observed that the deceased had sustained a fracture of the right temporal bone with an underlying dural laceration.  He did not recover from the emergency surgery and was pronounced dead on 21 January 2014.

7.An autopsy was performed on the deceased and a forensic pathologist found that the cause of death was head injury.  It was revealed that he sustained cortical bruising and haemorrhages around the frontal and temporal lobes.  The forensic pathologist found that the overall pattern of the injuries was consistent with having been caused by a severe blunt force impact to the head as a result of a fall from a standing position.

8.The defendant was arrested by the police and he made a statement under caution at a time when the defendant was still alive but in a coma.  The defendant stated that “the old man had a pee by the rear of my vehicle and even scolded the fuck out of me.  Thus I slapped his face once, and he tumbled onto the ground.”

9.In mitigation, reliance is placed on the circumstances of the incident and the plea of guilty by the defendant.  I was told that the defendant has three sons, aged four, eight and nine years respectively from two relationships and that he has the care of the three children.  He was unemployed and on social welfare benefits at the time of the incident.  I was also told that the children are in the care of a home.  It is to be observed that the defendant is a young man who hit a person much older than himself who was inebriated and unsteady at the time.  The defendant has a past history of violent crimes in relation to robbery in 2003 and 2005.  The 2005 robbery involved the defendant together with another person robbing a taxi driver where the other person pointed a meat knife to the taxi driver’s neck and declared robbery. 

10.It is to be acknowledged that the defendant never intended to cause the death of the deceased.  This was a case of a single blow causing the deceased to fall to the ground and fracture his skull, which had tragic consequences.  Mr Jackson Poon, counsel for the defendant, relies on the English Court of Appeal case of R v Coleman (1992) 95 Cr App R 159 which tends to suggest that in the United Kingdom in cases of manslaughter where the cause of death has been a punch which has felled the victim so that he has struck his head on the ground causing internal head injury, a sentence in the region of 12 months’ imprisonment and sometimes no imprisonment at all, is usually considered to be a proper sentence.  It was acknowledged by the English Court of Appeal that the offence of manslaughter is quite frequently committed in a huge variety of circumstances and, therefore, the court has to pay particular regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for bringing about the death of the victim.

11.The Hong Kong Court of Appeal in R v Lo Bing Sun, CACC 660/1993, 23 May 1994, unreported stressed the importance to deter the unlawful and dangerous act as constituted by a blow to someone resulting in their death when sentencing in cases of this type.  Whilst the court was divided as to the appropriate sentence in that case, the joint judgment of Silke VP and Litton JA (as he then was) and the judgment of Penlington JA were in general agreement as to the approach that should be taken when sentencing cases of this type.  It was acknowledged in their respective judgments that whilst manslaughter is committed in a huge variety of circumstances, and that is a factor a court needs to carefully consider, the unlawful act has resulted in the loss of life for which the offender must be appropriately punished to generally act as a deterrent.  From the authorities mentioned, the range of sentences for a case involving a single blow causing the deceased to fall and hit his head on the ground is usually between one to three years’ imprisonment, but this will depend on the particular facts and circumstances of the case and may even involve in an exceptional situation with no imprisonment at all.  In my view the sanctity of life is a matter that weighs heavily on the scales of justice when considering an appropriate sentence in cases of this type and in the usual circumstances a custodial sentence would be warranted.

12.               I have also been referred to the case of HKSAR v Barry Peter Miller, CACC 127/2000, 22 February 2002, unreported, where a sentence of two years’ imprisonment after trial was imposed for the offence of manslaughter where the victim was assaulted and hit his head on the ground which caused his death.

13.I have carefully considered the facts and circumstances of this case.  I have borne in mind that the defendant had been agitated by the deceased’s behaviour of urinating at the rear of his vehicle.  I have also borne in mind that the deceased was inebriated and generally unsteady and unable to respond appropriately both physically and mentally to his surroundings.  I was told that the defendant was sitting in his car waiting for a table to be available at a restaurant.  After hitting the deceased, the defendant noticing that the deceased was lying motionless on the ground, left the scene.  He did not go to his aid.  It is tragic that this single blow has resulted in the victim’s death.  The loss of life in circumstances like these is too precious to go unpunished and the consequences are far reaching and devastating, especially for the victim’s family and friends.  I consider in the circumstances of this case a starting point of 30 months’ imprisonment to be appropriate which I reduced by one‑third for the defendant’s plea of guilty.  He is therefore sentenced to 20 months’ imprisonment.

Mr Bobby Cheung SPP of Department of Justice, for HKSAR

Mr Jackson Poon, instructed by Alan Ho & Co, assigned by Director of Legal Aid, for the defendant