HKSAR v. KONG KIT YUEN

DCCC 317/2020

[2020] HKDC 1080

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 317 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant is convicted on his own plea and agreement to the summary of facts to a charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap 212.

Facts

2.  At all material times, the defendant and the deceased were in-patients staying at Room 1, Wards E3, Brilliance House, Castle Peak Hospital, Number 15 Tsing Chung Koon Road, Tuen Mun, New Territories, in Hong Kong.  Defendant slept on bed number 8 and deceased slept on bed number 5. 

3.  At around 11 pm on 25 July 2019, defendant had a dispute with another in-patient at the common room and PW1.  A registered nurse of the hospital separated the defendant from that in-patient and put the defendant to bed.  Defendant calmed down and told PW1 that he would go to sleep. 

4.  Later, PW1 saw the deceased with the face bleeding and he treated the deceased and helped him back to his bed.  Upon entering Room 1, PW1 saw the defendant lying on his own bed looking at PW1 while other in-patients sleep. 

5.  PW1 asked the deceased whether anybody had hit him and the deceased told PW1 that the defendant hit him.  Upon inquiry by PW1, defendant admitted hitting deceased. Case was reported. 

6.  The plastic meal tray was missing from the bedside cabinet of the defendant’s bed and a broken plastic meal tray with bloodstains was found on the ground near bed number 7. Bloodstains were also found around bed number 5. 

7.  Defendant was arrested.  Under caution, he stated that he was angry so he hit the deceased for a few times to vent his anger. 

8.  Interviews was conducted on the defendant in presence of his sister next day, during which the defendant said under caution that he hit the deceased with the meal tray from the bedside cabinet for three times.  The deceased bled and went out of the room and so he went back to his own bed. 

9.  As a result of the attack, the deceased suffered from multiple lacerations over his left eyebrow, left nasolabial fold, right cheek, left lower lip; there was total hyphema over left eye with visual acuity to light perception only; his teeth over left upper jaw were absent; and there was also lateral orbital wall fracture, ruptured left globe, left zygoma fracture and bilateral maxilla fracture.  Surgeries were performed on the deceased and the deceased was then transferred to Intensive Care Unit and later he was discharged to general surgical ward where his wounds were healing well.  The deceased died later due to lithium induced nephrogenic diabetes insipidus complications on 19 September 2019. 

10.  At all material times, defendant unlawfully and maliciously wounded the deceased with intent to do him grievous bodily harm. 

Criminal record

11.  Defendant has five previous criminal convictions, none similar. 

Mitigation

12.  Defendant is now aged 27. 

13.  He was born in the mainland and arrived in Hong Kong in the year of 2009.  He is single and he has five other siblings.  His parents are in their 60s.  He has never received any education. 

14.  At the time of offence, he has been an in-patient in Castle Peak Hospital for more than a year on a voluntary basis.  It was said that defendant was assaulted and bullied by another inmate, not the deceased, and when he was asked to return to his bed to rest, he assaulted the deceased, a man in his 60s who was then in bed, without reasons. 

15.  He said he hit the man in order to vent his anger and he frankly admitted his wrong when confronted by the nurse, ie PW1.  He now pleads guilty at the earliest opportunity. 

16.  Defence counsel said that the two government psychiatrists both suggested that defendant should continue to receive in-patient psychiatric treatment. 

17.  It was said that the defendant’s family was apologetic and felt sorry for what the defendant had done to the deceased and his family.  They hope, however, that defendant could be allowed back to the society as a law-abiding citizen in a not too distant future as he is only a young person suffering from mental illness and that he committed the crime after being bullied.  The defendant asked this court for a chance and vows not to reoffend again. 

18.  Defence counsel, while accepting that defendant needs further treatment, urges this court not to follow the recommendation of the two psychiatrists, ie a hospital order for an unspecified period of time. 

Psychiatric reports

19.  Both psychiatrists set out in detail the personal background and psychiatric history of the defendant in their reports. 

20.  In summary, defendant is a man with multiple violent incidents history such as kicking his neighbour’s door in year 2015, hitting co-resident in year 2015, breaking alarm in a hostel in year 2016, damaging TV set in ward, hitting two co-patients resulting in hip fracture and intracranial bleeding in September 2018.  He also had history of locking himself up and attempted to strangulate his own neck with blanket due to frustration from not being visited by elder sister. 

21.  Due to his life threatening reaction to certain medication, the choice of drugs to be prescribed for the defendant is limited. 

22.  Defendant is also prone to irritability and conflicts with others when commented by other about his work performance and irritated by others with poor mental state. 

23.  Defendant is diagnosed with mild to moderate mental retardation and psychosis. 

24.  In the reports, it is said that he is noted to manifest serious violence in the last two years and poses serious danger against others even when he stayed in the gazetted mental hospital. 

25.  Concerning the commission of the present offence, both psychiatrists said the defendant fully understand the charge and his position in the proceedings.  Defendant said he was scolded with foul language, pushed by another inmate at the hospital and being unhappy on his return to his own bed, he took out the board from the bedside cupboard and hit the face of the deceased in the nearby bed three times.  He admitted grudge with the deceased in the past as the deceased swore at him after defendant complained the deceased’s self-muttering behaviour and the deceased was noisy when sleeping around 6 am in the morning and disturbed the defendant’s sleep. 

26.  Defendant admitted he knew what he did was wrong and that the defendant was alert and conscious during the act. 

27.  It is also said by Dr Lam that defendant showed superficial remorse towards the index offence and had limited remorse towards his past violence and multiple behavioural problems. 

28.  It is agreed by both psychiatrists that it is necessary that the defendant should receive higher security level in-patient psychiatric treatment.  They both recommend a hospital order, under section 45 of the Mental Health Ordinance for an unspecified period. 

29.  It is also said that the defendant could receive and serve his sentence at Siu Lam Psychiatric Centre where provision has been made available for him. 

Discussion

30.  A person convicted of the present offence upon indictment shall be liable to imprisonment for life.  There is no tariff or sentencing guideline for these cases.  The actual sentence imposed obviously depend on the facts of the particular case. 

31.  In the present case, the defendant assaulted the deceased after he was made unhappy by another in-patient without reason. 

32.  He was alert at the time and knew what he was doing was wrong.

33.  On his own admission, he hit the head of the deceased three times using the meal tray taken out from the bedside cabinet while all other in-patients, probably including the deceased, were sleeping. 

34.  Defendant said deceased had conflict with him few months before and he was too noisy and disturbed the defendant.  Deceased suffered very serious injuries to his head and surgeries has to be performed.  He later died due to complications. 

35.  Defendant is a person diagnosed with moderate mental retardation and psychosis.  He is also of violent behaviour and prone to be irritated. 

36.  It is also said in the report that his remorse to the commission of the present offence is superficial and that his previous violent behaviour is limited. 

37.  Whilst this court appreciates the family wishes as depicted in the mitigation letters, clearly the family have been unable to control the defendant over the years.  Even when defendant is receiving treatment at Castle Peak Mental Hospital, he committed the present offence and also assaulted two others earlier in September 2018. Had the defendant not been a person suffering from mental disorder, this court would consider a sentencing starting point of no less than 4 years’ imprisonment.

38.  In the case of HKSAR v Poon Suet Ming, CACC 265/2000 where the defendant was convicted of causing grievous bodily harm with intent to do so, a hospital order with unspecified period of time was made under section 45 of the Mental Health Ordinance, Cap 136.  Stock JA said in the judgment that:-

“The applicant is without doubt gravely ill, and poses a threat to members of public ... and that he still requires treatment in hospital until such time as it is established that he is suitable for discharge. It is obvious that one cannot at this stage say with any confidence when the threat which he poses to the public might with treatment be reduced so as to enable his release. In those circumstances, an order limiting the period of his detention would not have been appropriate. It is a matter to be assessed, by those treating him, at the appropriate time.”

39.  Again, in the case of R v Kwan Wai Man, Alexander, CACC 483/1994, where the defendant was convicted on his own plea to two counts of assault occasioning actual bodily harm, hospital order of indefinite period was made.  Defendant applied for leave to appeal, the same was refused.  Macdougall VP said:-

“In the light of the applicant’s psychopathic personality, the high risk of his re-offending and the uncertain prognosis, it was recommended, and the judge accepted, that this was a proper case for the court to make, under section 45 of the Mental Health Ordinance, Cap 136, a hospital order for an unspecified period.”

40.  The court in that case had regard to the nature of the offences which the applicant committed, the long history of violence and the information contained in the psychiatric reports which the Court of Appeal in that case drew the only conclusion that the defendant is a danger to society and that the only proper course for the protection of the society and for the good of the applicant himself was that taken by the judge. 

41.  This court takes into consideration the fact that defendant suffers from the mental retardation with significant impairment in behaviour and history of psychosis, the information and recommendation from the reports of the two psychiatrists, the guilty plea of the defendant for which, in normal cases, he should be entitled to full one-third sentencing discount, the mitigation letters from the family including the defendant himself.

42.  It is clear that the psychiatrists are both uncertain at this stage as to when the threat that the defendant poses to public and to himself for that matter might, with treatment, be reduced so as to enable his release.  It would therefore be inappropriate again to specify the period of detention, which as the learned judge said in the other case, is a matter to be best assessed by those treating him. 

43.  Therefore having regard to all the circumstances of the case, nature of the present offence, character and antecedent of the defendant, psychiatric reports as well as the recommendation therein, mitigation submission selected from defendant’s family, this court considers that the only appropriate way of dealing with the defendant and the most suitable method of disposing the case is to make a hospital order under section 45 of the Mental Health Ordinance, as recommended by the two psychiatrists, for an indeterminate period of time by committing the defendant to Siu Lam Psychiatric Centre and accordingly this order is made.