Voluntary Manslaughter

Voluntary Manslaughter 

Voluntary manslaughter refers to a case in which all the elements of murder are satisfied, including the intention to kill or to cause grievous bodily harm, but where the offence is reduced from murder to manslaughter because a partial defence—namely provocation, diminished responsibility or suicide pact—has been made out. 

The principal distinction between voluntary manslaughter and murder is that, although the offender has the criminal intent required for murder, the offence is reduced by reason of a statutory partial defence. This shows that the law recognises that certain specific circumstances may reduce an offender's criminal liability, notwithstanding the fatal nature of his conduct itself. 

The penalties available for manslaughter range from a probation order to life imprisonment. According to case law, there are circumstances in which a judge may be unable to set a clear starting point for sentencing. In such cases, the judge must take full account of all aggravating and mitigating circumstances before arriving at an appropriate sentence. 

In one Hong Kong case, the defendant was convicted of manslaughter on the ground of diminished responsibility. That case involved the defendant beheading, with a sharp knife, his elderly mother, who suffered from chronic illness and had repeatedly expressed a wish to end her life. Although the court accepted that the defendant had acted out of a merciful motive, it made clear that, even though his mother was suffering severe physical and emotional pain, the defendant had no right to take her life. 

In sentencing, the court weighed a number of competing considerations. On the one hand, the case was serious in nature and the means of killing was brutal, and social justice required the court to express appropriate condemnation; on the other hand, three psychiatrists were unanimously of the view that the defendant's responsibility was substantially impaired by recurrent depressive disorder, that the risk of reoffending was very low so long as he continued to receive treatment, and that rehabilitation under supervision would serve the interests of both the defendant and society more effectively than imprisonment. The court also took into account that the defendant had no criminal record, had been remanded in custody for over two years by the time of sentencing, and had ongoing rehabilitation needs. Weighing all of the above factors, the court ultimately imposed a 24-month probation order, subject to conditions including psychiatric and psychological treatment. This decision does not mean that the law permits mercy killing in any form; rather, it was founded on the exceptionally rare combination of circumstances in this case—a probation order being regarded as the most effective means of assisting the defendant's rehabilitation while at the same time protecting the public. 

In another Hong Kong case, a mother suffering from a mental illness strangled her son with a USB cable and was sentenced to a hospital order of one year. 

By contrast, in HKSAR v Kan Kwai Fong [2021] HKCFI 34, a grandmother suffering from a mental illness strangled her grandson; the starting point for sentencing was 7.5 years, because there was some degree of premeditation.