R. v. CHAN HUNG HING

IN THE COURT OF APPEAL

No.552 of 1995

(Criminal)

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J U D G M E N T

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Keith J. (giving the judgment of the Court):

1. The Applicant was indicted on a charge of murder. The deceased was his wife. He pleaded not guilty to her murder, but guilty to her manslaughter. That plea was accepted by the Crown. Following the obtaining of further psychiatric reports on him, the Applicant was sentenced by Duffy J. on 21st July 1995 to 5 years' imprisonment. He now applies for leave to appeal against his sentence, his application for leave to appeal against his conviction having been abandoned. He has represented himself on this appeal, his application for legal aid having been refused.

2. This was a tragic case. It demonstrates the terrible effect which drug addiction can have on those who are dependent on hard drugs. It goes some way towards explaining why those who are engaged in the distribution of hard drugs receive such heavy punishment in Hong Kong.

3. On 17th October 1994, the Applicant and his wife went to the New World Centre in Salisbury Road, Tsim Sha Tsui. They were seen standing next to the railing at one of the upper levels, when the Applicant pushed his wife over the railing. She fell all the way down, bursting through the plastic canopy of a restaurant, and landing on the floor of Basement Level 2. In all, she had fallen some 57½ feet. The Applicant threw himself over the railing as well, but whereas he survived his fall, she did not. She died in hospital some four hours later.

4. The Applicant and his wife were both drug addicts. He had been experimenting with opium since his early 20s. However, he turned to heroin, which he began to take intravenously, when he was about 39 years old. That was when he became re-acquainted with his wife. He had known her for about 17 years, though they had not married until 1992. She had been a heroin addict for many years. He was almost 44 when he killed her, though they had been, by all accounts, a couple very much in love with each other.

5. The medical reports before the judge revealed that for some time, the Applicant had been under the delusion that his wife was being unfaithful to him. These delusions were at their most intense after he had had a fix. At such times he felt that he wanted to die, and even suggested to his wife that they commit suicide together. On the day his wife died, he had had a fix a few hours before they went to the New World Centre. He began to feel out of touch with reality. He heard voices telling him that his wife slept with other men and suggesting that he kill himself. In the New World Centre, he felt a strong urge to jump over the railing himself, and he did so, of course, after his wife had fallen to the basement, though he was unable to bring himself to admit to the doctors that he had actually pushed her over the railing himself.

6. The opinion of the two consultant psychiatrists who subsequently examined him was that the Applicant had been psychotic for about a year. This psychosis was drug induced, and took the form of delusions, hallucinations and morbid jealousy. At the time he killed his wife, he was suffering from such abnormality of mind as substantially impaired his mental responsibility for her death. However, by the time of his trial, the Applicant had been drug-free for many months. He no longer experienced delusions or hallucinations, and he was no longer suffering from any psychiatric illness. His condition was said to be reasonably stable, and he was no longer in need of psychiatric treatment. The effect of that was that, of the viable sentencing alternatives available to the judge, a hospital order was not one of them.

7. However, the judge was understandably concerned about what the chances were of the Applicant resorting to hard drugs again when he regained his liberty, and if the Applicant did so what the chances were of his psychosis emerging again. For that reason, the judge asked for the psychiatrists' views on those issues. If the Applicant was likely to remain a danger to the public in the future, this may have been one of those cases in which an indeterminate sentence was appropriate. In due course, their views on those issues were contained in reports which were placed before the judge. The psychiatrists were not entirely of one mind, but the general thrust of what they were saying was this - although there was a risk that the Applicant would turn again to hard drugs, the risk was not all that great, but even if he did, it may well be that he would not suffer from the psychotic condition which had led to the appalling events of October 1994.

8. In these circumstances, we take the view that the only realistic sentencing option open to the judge was a determinate sentence of imprisonment which reflected the Applicant's true culpability. On one view of the matter, it was plain that the very serious abnormality of mind diminished the Applicant's responsibility significantly for what he had done. However, we think that the judge was entirely right to recognise that it was the Applicant's drug addiction which had caused that severe impairment of his faculties, and the Applicant had no-one to blame for that addiction but himself. It was the fact that he was responsible for what had ultimately caused the impairment of his faculties which constituted his criminal culpability. In our view, the sentence of 5 years' imprisonment properly reflected the degree of the Applicant's criminality. We cannot say that, in these circumstances, the sentence was either manifestly excessive or wrong in principle, and this application for leave to appeal against sentence must therefore be refused.