HKSAR v. CHU LAI KAM

HCCC 515/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 515 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded not guilty to a charge of murder, but guilty to manslaughter by reason of diminished responsibility. That plea was acceptable to the prosecution.

The defendant is now aged 37, is a mother to a son now aged 10, and a daughter, the deceased in this case, was aged 18 months.

On the day in question, the 999 call station received a call from the defendant to the effect that she had killed her own daughter, and her son had been abducted and tied up downstairs.

The police went to her flat only to find the son outside. He told the police that he had forgotten his key. The police knocked on the door and the defendant opened the door.

Bloodstains were seen on her, and there was redness and swelling to her forehead and cut wounds at her left wrist. She was still holding a bloodstained mobile phone.

She admitted that she had killed her daughter who was found lying on a pool of blood on the floor of the kitchen and was declared on arrival at the hospital.

The defendant said that she had heard voices causing her headaches since the end of the month before the incident, and on the day she heard a voice saying her son was being tied up in the building lobby and that he was bullied, and those bullies would go and look for her and her daughter. She also heard voices telling her to kill her daughter. She then fetched the knife and chopped her daughter’s neck many times. She then tried to cut her own wrist and neck, hit her head with a brick and called the police when she said she saw her son being tired up downstairs.

The autopsy of the deceased found that there were over 40 wounds to the neck and cut wounds to her head, trunk and left upper limbs.

In mitigation I was told that the defendant is remorseful, that she has already been punished by the loss of a daughter when she knows full well that it was she who took her daughter’s life.

She expressed that she wished to be sentenced to imprisonment so that she had a definite date of reunion with her son and the rest of her family. Her elder sister, younger brother and sister-in-law have all written into court to state that the killing was an out-of-character act on her part and that she has always been a caring and loving mother to her two children.

Amongst those letters in mitigation is also one written by her son telling her that he is now living in a foster family and has been adjusting well and his longing to lead a normal life soon.

In sentencing the defendant, I have reminded myself and indeed would like to take this opportunity to reiterate what the Court of Appeal said in the case of HKSAR v Lee Fung Yee [2011] 5 HKLRD 351:

“Protection of human life was a foremost objective of our system of criminal justice. The community was entitled to expect that the unlawful taking of a life be denounced by a punishment that was appropriate to the circumstances. Particular recognition was given the need to protect the vulnerable, and special concern was aroused when an infant child died at the hands of one of its parents, the very person entrusted to protect and nurture that child.”

Three psychiatrists, two from the government and one in private practice, were of the view that the defendant was suffering from a psychotic disorder, namely schizophrenia as substantially impaired her mental responsibility for an act of killing.

Dr Oliver Chan and Dr Chow Kit-wan, the two government psychologists who have examined her on 16 and 15 occasions respectively, have also repeatedly assessed her condition. Their reports tell me that during her early remand in the Castle Peak Hospital, her mental condition was poor.

After being transferred to Siu Lam Psychiatric Centre, although her mental state had gradually improved, with abnormal beliefs and perceptions abated, her insight towards her illness was described by the psychiatrist to be “limited despite ongoing psychoeducation.”

It is concluded that she is still prone to act out in an unpredictable and aggressive manner when driven by mental disturbances. Her limited insight is reflected by her “trickiness in taking medication.” They concluded that “she is still not able to get aware of the seriousness of her behaviour and its relationship with her mental illness.” They are of the opinion that further observation and efforts to enhance and ensure her treatment compliance preferably in a secured setting, high security units as at Siu Lam Psychiatric Centre is indicated. Provisions have been made for her to serve her sentence in Siu Lam.

Section 45 of the Mental Health Ordinance, Cap 136 empowers the court to make a hospital order on the recommendation of two registered medical practitioners, and when the court is of the opinion that,

“...having regard to all the circumstances including the nature of the offence and the character and antecedents of such person, and to the other available methods of dealing with him or her, that the most suitable method of disposing of the case is by means of an order under this section.”

The Court of Appeal in R v Birch (1989) 11 CrAppR (S) 202 provides some guidance as to the court’s structured sentencing approach.

First, the court should decide whether a period of compulsory detention is opposed. Secondly, the judge should ask himself or herself whether the conditions contained in the ordinance or legislation are satisfied, if so the court will consider whether to make the order.

Birch has also made it plain that “the power to make a hospital order is not determined by the question of criminal responsibility which question will be dealt with by the conviction”, and “a hospital order is not a punishment. Questions of retribution and deterrence, whether personal or general, are immaterial.”

I am satisfied that the present case is an appropriate case to make a hospital order. The two government psychiatrists recommended a hospital order for an unspecified period of time. The defendant can rest assured that she gets the necessary attention whilst in remand.

The Court of Appeal in Birch also remarked the following:

“Once the offender is admitted to hospital pursuant to a hospital order without restriction on discharge, his position is almost exactly the same as if he were a civil patient. In effect he passes out of the penal system and into the hospital regime. Neither the court nor the Secretary of State has any say in his disposal.”

The Court of Appeal in HKSAR v Lin Jun CACC 135/2012 said that as a mental patient in Siu Lam Psychiatric Centre:

“Her detention will be kept under constant review. It would be reviewed annually by a panel of psychiatrists, who will consider when the applicant may safely be released. It is the job of the panel to ensure that no patient is detained for longer than is absolutelynecessary.”

I consider that a hospital order without specifying a time limit is an appropriate order in the circumstances of the present case.

Then I am required to consider whether the defendant be admitted into Siu Lam Psychiatric Centre or the Castle Peak Hospital. It would appear from Cross & Cheung, Sentencing in Hong Kong that the Castle Peak Hospital offers an environment to the patient which is less restrictive and more immediately rehabilitative than that of Siu Lam Psychiatric Centre.

Dr Peter Yu, the private psychiatrist for the defendant, told me through a second report that Siu Lam, whilst providing a multi-disciplinary in-patient psychiatric service, has a highly secured setting as opposed to the psychiatric ward of the Castle Peak Hospital which consists in the facilities to keep more personal belonging, longer visiting hours and more visitors are allowed.

According to Dr Yu, Castle Peak Hospital is the only mental hospital providing for psychiatric services in Hong Kong. He says that the forensic psychiatric team in Siu Lam is loaded with a manpower problem and patients there are likely to be given less attention.

Dr Yu is of the view that if the defendant stays in Siu Lam for a prolonged period she will lose her skills to reintegrate back into society when she is ready to do so.

The case cited and relied on by the defence, being the case of Ha Kei Fuk (CACC 688/1995), deals with a rather unique situation. After being committed to Siu Lam, when the case went on appeal, the appellant had been there for nearly a year. The psychiatrist in Siu Lam observed that the appellant had gained insight and was of the opinion that he should be ready to reintegrate back into the community in about half a year’s time. It was in those circumstances that the Court of Appeal thought it would be more appropriate for him to be detained in a mental hospital, rather than a psychiatric centre:

“It appears that the applicant’s best chance of being brought as quickly as possible to the state in which it would be safe to release him into the community lay in the treatment which he would receive in a mental hospital rather than in a psychiatric centre.”

But, in this case, has the defendant reached such a state, ie, is she ready to be released back into the community?

Dr Yu says that given the number of atypical features of the defendant’s illness, she is, and those features include the following:

(1) the abrupt onset of illness episodes;

(2) brief duration of illness episodes;

(3) remission of illness without the taking of antipsychotic medications;

(4) long symptom-free periods between illness episodes;

Dr Yu predicts a better clinical outcome with complete remission with no social or occupational functioning impairment. He is also of the view that the defendant does not have a violent propensity, and the killing was only committed when she suffered the illness at its worst.

Dr Yu, unlike Dr Chan and Dr Chow who have examined the defendant on 16 and 15 occasions respectively, has only examined the defendant on one occasion in April this year to give his opinion on the state of mind of the defendant at the time of the offence.

His supplementary report in August recommending that the defendant be committed to Castle Peak Hospital, was compiled without any further examination of the defendant. He would not be a in position to say, for example, whether the defendant is tricky in taking her medication or not, and what her drug compliance is like.

When sentencing the defendant I have to bear in mind that this was indeed an extremely serious offence. Even a low risk of repetition would justify a more secured setting, because in the likelihood of a relapse triggered by stressors other person or some others would be put in peril.

Dr Chan and Dr Chow have studied the defendant closely, and there is nothing for me to doubt the soundness of their recommendation.

The circumstances of the defendant here is different from the case of Ha Kei Fuk at least for the time being.

I sentence her to the Siu Lam Psychiatric Centre without specifying a time limit.