HKSAR v. YAU KIT KEUNG

bjbjT~T~ pg7_) A and Wright J in Court Date of Hearing and Judgment: 20 August 2010 Date of Handing Down Reasons for Judgment: 30 August 2010

R E A S O N S F O R J U D G M E N T Hon Hartmann JA (giving the Reasons for the Court): Introduction In September 2009, the applicant was arraigned in the Court of First Instance before McMahon J on a charge of murder, the allegation being that on 14 May 2008 he had murdered a woman by the name of Yang Xiuqiong. At the conclusion of the trial, by a unanimous verdict of the jury, the applicant was acquitted of murder but convicted of the offence of manslaughter by reason of provocation. He was sentenced to a term of 12 years imprisonment. It was against that sentence that he sought leave to appeal on the basis that it was manifestly excessive. Having heard submissions, we dismissed the application saying that we would give our reasons later. We do so. The evidence The applicant, a married man in his late 40s with two sons, first met the victim in 2007. They became lovers and he set her up in an apartment in Kwai Chung. It appears that the victim hoped to be able to cement a permanent relationship with the applicant. Towards the end of April 2008, the applicant s wife discovered that he was having an affair. The applicant then contacted the victim to inform her that he did not wish to leave his wife and to ask if she would nevertheless continue to be his mistress. The victim, however, was not prepared to do so. She threatened to commit suicide, taking an overdose of drugs. The

applicant and his wife learnt of this and went to the apartment in Kwai Chung where they found the victim in a state of considerable distress. In the result, the applicant stayed with the victim in the apartment for the next 10 days or so. On 14 May 2008, the applicant and his wife, together with a friend, had tea with the victim to try to resolve matters between them. The applicant was hoping that the status quo would continue and that he would be able to split his time between his wife and the victim. The wife, it seems, was prepared to accept this compromise. The victim, however, left the teahouse. That evening, the victim made a series of telephone calls to the applicant demanding that he come to the apartment in Kwai Chung. She was in a state of high emotion, veering between wanting the applicant to stay with her and wanting him to take his possessions from the flat and be gone. She again threatened suicide. The applicant went to the apartment. As the applicant s counsel, Mr Andrews, described it, the applicant was hoping to settle matters with the victim so that she would agree to remain his mistress. The victim, however, demanded either that the applicant divorce his wife or that he pay her a sum of $100,000 by way of compensation to end their relationship. In this heated exchange, the applicant replied that he had already paid her a great deal of money, that sum and

more. When the applicant went to leave the flat, the victim tried to prevent him from doing so and a physical struggle took place. According to the applicant, the victim hit him and they both fell to the floor. In the course of the struggle, he said that the victim poked him in his eyes and threatened him to the effect that, if he did not kill her, she would kill his wife and his sons. It was at this point, said the applicant, that he lost control. He remembered grabbing a curtain, pulling it down from its railing and wrapping it several times around the victim's neck. He remembered her struggling, her arms thrashing. On his own admission, he applied force in this way for several minutes until her struggling ceased and she was still. It was the forensic evidence that the victim died of strangulation. The victim s thyroid cartilage was broken: evidence of the force employed. But, even with the application of considerable force, it was the expert evidence that, having regard to the manner in which the strangulation was effected, it would have taken the victim several minutes to die: just as the applicant himself accepted. The applicant left the victim lying on the floor with the curtaining still wrapped around her neck and part of it thrown over her face. He did not attempt to resuscitate her. Nor did he call for any form of assistance. Instead he switched off the light and

closed the door to the apartment so that it was locked. He then fled to the Mainland. The body of the victim was only discovered about a week later after the authorities had made a forced entry into the apartment. Some two weeks after his flight, the applicant returned to Hong Kong when he was arrested at the border. The judge s approach to sentence During the course of the trial, the judge, of course, had been able to hear all the evidence and was thereby able to acquire a true feel for the circumstances that led up to the fatal confrontation in the flat and, in the light of those circumstances, both the true degree of the provocation and the applicant s answer to it. He found that the applicant s actions, albeit committed while under provocation, were of such a sustained and deadly nature that they gave a particular gravity to the applicant s crime. The judge rejected any suggestion of remorse, observing, first, that the applicant had left the deceased lying on the floor with the curtain still tied around her neck and, second, that he had failed either to attempt any form of resuscitation himself or to call for help. He had then switched off the lights and left the flat locked before fleeing to the Mainland. In the present case, as he was entitled, the judge determined that it was not appropriate to set a starting point and that a sentence of 12 years met the justice of the

matter. The grounds of appeal Mr Andrews, who appeared on behalf of the applicant in the court below, in substance advanced four grounds to support the submission that the sentence was manifestly excessive. First, given a customary range of between three and nine years imprisonment for manslaughter by reason of provocation when the crime is committed in a domestic context, there was nothing in the circumstances of the present case to justify an enhancement of sentence beyond that customary range. Second, in finding as an aggravating factor that the applicant persisted in his strangulation of the victim over a period of several minutes intending thereby to kill her or to cause her serious bodily harm, the judge failed to honour what was implicit in the jury s verdict, namely, that during those several minutes the applicant was acting under provocation. Third, in assessing the gravity of the offence, the judge failed to take into account or to give sufficient weight to circumstances capable of reducing the level of the applicant s moral culpability including circumstances which evidenced the applicant s remorse. Fourth, the judge failed to take account of the fact that, at his committal in the magistracy, the applicant had offered a plea of guilty to manslaughter and had throughout the trial being consistent in his acceptance of the fact that he was responsible for the victim s

death. The first ground During the course of his submissions, Mr Andrews spoke of a customary range of sentences of between three and nine years for manslaughter by reason of provocation arising out of a domestic context. In our judgment, while many sentences may fall into that range, it goes too far to suggest that there is thereby created any sort of binding guideline. The circumstances in which manslaughter occurs in the context of domestic confrontation invariably encompass an infinite variety of factors. In HKSAR v Lam Chun Fai CACC486/2005, para 13, Stock JA commented that there is perhaps no instance more illustrative of the fact that sentencing is an art than in manslaughter cases. In that case he was considering a killing that had occurred in highly stressed domestic circumstances. This Court has said on numerous occasions that, when considering sentence in cases such as these, comparison with previous cases can only be of the most limited assistance. The reason is manifest: while a comparative analysis may identify some common components, it is for the sentencing judge to look to the evidence as a whole. While therefore, as Mr Andrews submitted, it may be that, when sentencing for cases of this kind, our courts have tended in recent years to impose sentences that fall within a broad range of between three and nine years, that does not derogate from the principle that

each such case must be judged according to its own facts and that the infinite variety of circumstances thrown up in these cases may demand sentences less than, or in excess of, that suggested customary range. Furthermore, as we have earlier indicated, when a case of this kind has been contested, as the present case was contested, the sentencing judge will necessarily have the advantage which we have not of acquiring a true feel for the circumstances that result in the fatal confrontation. In the present case, the judge formed the view that the ferocity and endurance of the applicant s reaction to the victim s provocation was of a nature which gave to his crime a particular gravity. The judge, having had the advantage of hearing all the evidence and being able to assess it at first hand, determined what he considered to be an appropriate sentence in the light of that assessment. While that advantage of hearing all the evidence of itself can never be conclusive, it is a factor to which weight must be given. The second ground When giving his reasons for sentence, the judge commented that: the [applicant s] loss of control resulted in the slow and deliberate strangulation of the victim over a period of minutes. The specific intent required for murder was therefore maintained for a considerable time. The provocation offered to the [applicant] by the victim was, in its context, out

of proportion to the sustained and deadly reaction of the [applicant]. These comments were criticised by Mr Andrews on the basis that they ignored what was implicit in the verdict of the jury, namely, that, throughout the period of the strangulation, the applicant had reasonably lost the ability to control what he was doing. We found nothing in this point. It is trite to say that, when provocation reduces what would otherwise be murder to manslaughter, it does not thereby render the moral culpability of the perpetrator the same in each and every case. A sustained and deadly attack in reaction to provocation that, in the balance of things, is found to be minimal, depending on all the circumstances, will no doubt be considered of graver moral culpability than a single blow from a fist in answer to provocation of greater degree. Without in any way compromising the jury s verdict, the judge was obliged to consider the acts of the applicant in context. In so doing, it was incumbent on him, in light of the history of the matter, to look to the nature of the provocation and the nature of the applicant s response. This he did, this and no more. The third ground Mr Andrews submitted that the judge failed to take into account, or give sufficient weight to, certain matters of evidence which stood to the favour of the applicant, more particularly those matters which evidenced his

remorse. Again, we found no substance in this submission. It was for the judge to consider the evidence as a whole, that is, in assessing sentence, to have regard to the sum total of its component parts. He was well aware of the history of the matter and the emotional imperatives that drove it. As to the issue of remorse, the judge, rightly in our view, rejected the submission that the applicant s remorse in this case acted as a material mitigating factor. When the victim ceased her struggles, the applicant made no attempt to resuscitate her or to call for help. Whether the victim was capable of being resuscitated is not to the point. The actions of the applicant, even if motivated by panic, revealed his state of mind at the time. He left her in the flat, the curtaining still wrapped around her neck. He switched off the lights and left the apartment locked. He then fled to the Mainland. His concern was solely for himself. When considering the issue of remorse, the judge was entitled to give little weight to the fact that some two weeks later, after the applicant had been able to consider his predicament, he returned to Hong Kong and, when interviewed by the police, expressed his remorse for the victim s death. The fourth ground It was submitted by Mr Andrews that the judge failed to give credit for the fact that the applicant, at his committal in the magistracy, had pleaded

guilty to manslaughter. That in fact is incorrect. The applicant had offered to plead guilty but that offer had been rejected by the prosecution. Neither at committal nor upon arraignment had there been a formal plea of guilty to manslaughter. The judge was therefore not obliged to give any form of discount. The law in this regard is now well settled. A defendant who faces a murder charge 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, appropriate credit is given. But if he is convicted of manslaughter having pleaded not guilty to any form of homicide then, depending on the circumstances, it is open to the judge to determine whether any form of discount is warranted. In the present case, on arraignment the applicant denied any form of homicide. More than that, on the basis of how the evidence presented itself during the trial, the judge felt it proper to leave the absolute defence of self-defence to the jury. The fact that the applicant had offered to plead guilty to manslaughter at his committal was brought to the attention of the judge during submissions made in mitigation. He did not determine sentence in ignorance of

that fact. Conclusion While we accepted that the sentence was a stern one, we were unable to conclude that it was manifestly excessive. The application for leave to appeal was therefore dismissed. (M.J. Hartmann) Justice of Appeal (A.R. Wright) Judge of the Court of First Instance Jasmine Ching, SPP of Department of Justice for Respondent Mr Robert Andrews, instructed by Messrs Samuel Ho & Co, assigned by Director of Legal Aid, for Applicant

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