Secretary for Justice v Wan Hoi Ming
Court of Appeal
Application for Review No. 2 of 2016
Lunn V-P, Macrae and Pang JJA
20 January 2017

Manslaughter – aggravating factors – use of stupefying substance – planning and premeditation – sustained and violent manner of overcoming victim’s resistance – care to be taken not to give duress undue weight as mitigation – instances in which appropriate to adopt sentencing starting point in manslaughter cases – whether “review” discount to be given on review of sentence

D pleaded guilty to “unlawful act” manslaughter and was sentenced to three years’ imprisonment, the Judge having adopted a starting point of four and a half years and discounted it by one-third for plea. The victim, V, was D’s mother-in-law. It was at the flat in which D, his wife, his son, his mother-in-law and a domestic helper lived that the incident took place. D was indebted to, and unable to pay, a loanshark who threatened to harm his wife and son unless he paid up. The loanshark was holding the wife hostage. In order to obtain the money to repay the loanshark, D asked V for a loan. She refused. D did not tell her of the threat to her daughter and grandson. Instead he decided to render V unconscious and then to search the flat for, and rob her of, her valuables. Having sent the domestic helper out of the flat, D rendered V unconscious by covering her mouth and nose with a towel impregnated with a stupefying substance, namely thinner. As she lay motionless on the floor, D searched for her valuables. Seeing that she remained motionless, he telephoned the police, saying that he had suffocated her to death. Among the injuries which she sustained were chemical burns over her face. Some days later, she died in hospital. The cause of her death appeared to be brain damage and aspiration pneumonia, which could have been caused by the inhalation of the stupefying substance, by smothering due to the blockage of the external respiratory orifices or by a combination of both. In sentencing D, the Judge noted that D had been under duress; took the view that there was no aggravating factor in the commission of the offence; and made no specific reference to premeditation. The Secretary for Justice applied for a review of sentence.

Held, allowing the application by substituting a sentence of six years and two months’ imprisonment, that:

  • The use of a stupefying substance to commit a crime was an aggravating factor.
  • Duress was to be taken into account as mitigation, but considerable care had to be taken not to accord stress and fear too much weight lest it be thought that it in any way justified what was done.
  • There was an element of planning and premeditation by D in the commission of the offence, albeit the acts of planning occurred in a period of only 40 minutes prior to the attack. This was an aggravating factor.
  • The sustained and violent manner in which D had overcome V as she resisted his attack was also an aggravating factor.
  • The sentence imposed by the Judge was unduly lenient, the starting point of four and a half years’ imprisonment failing to reflect D’s culpability.
  • It was not always appropriate to adopt a sentencing starting point in manslaughter cases, but this was an appropriate instance in which to do so. The appropriate starting point in this case was 10 years. Discounting that by one third yielded a sentence of six years and eight months’ imprisonment. Since D had already completed the sentence imposed by the Judge, he would on review of sentence be given a further discount of six months. So, the final sentence would be six years and two months’ imprisonment.
Jurisdictions: 

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