THE QUEEN v. LEUNG TONG FAT

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J U D G M E N T

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Nazareth, J.A.:

1. At the commencement of its hearing, the Applicant withdrew his application for leave to appeal against conviction. His application for leave to appeal against sentence was then argued by Mr. Macrae who appeared for him. Having heard Mr. Macrae, and also Mr. Coghlan who appeared for the Crown, we dismissed the application and now give our reasons.

2. The Applicant, Leung Tong Fat, was convicted in the District Court on 10th December 1991 by His Honour Judge C.K.E. Tung on five charges. First, for possession of offensive weapons in a public place, in respect of which he was sentenced to one years' imprisonment; second and third, for wounding with intent, in respect of which he received five years' imprisonment on each concurrent with the other and with the sentence on the first charge; and fourth and fifth, for attempting to pervert the course of justice, in respect of which he was sentenced to 9 months' imprisonment on each concurrently, but consecutive to the sentences on counts 1, 2 and 3.

3. The first three charges relate to an incident at a 7-Eleven Convenience Shop in the early hours of 1st June 1990. The Applicant selected several items for which he then refused to pay, and suggested that the manager should do so. Another customer, one Fung, who unfortunately for himself intervened, was told to mind his own business and was struck by the Applicant. Fung then left the shop. The Applicant who had a knife, followed Fung who took refuge in an adjoining congee shop. He picked up a dustbin lid to protect himself and retreated back into the 7-Eleven Shop, with the Applicant pursuing him and raining blows on him. One of these cut Fung's finger and he then dropped the dustbin lid. He sustained four stab wounds to his chest and abdomen. His wife then intervened, grabbing the Applicant round the waist, which apparently caused him to drop the knife. He struck Fung's wife, removed another knife from his haversack and stabbed Fung's wife in the buttock and thigh. Later a police party arrived and overpowered and arrested the Applicant. The two knives and the stabbing of Fung and his wife are the subject of the first three charges.

4. The fourth and fifth charges relate to an incident on 2nd November 1990 when the Applicant warned Fung and a witness to the earlier incident that anyone who gave evidence would be killed.

5. It was not surprising that in sentencing the Applicant the judge took a serious view of the offences. Fung lost a lot of blood and was in hospital for a month, ten days of which were spent in the intensive care unit. He still suffers from the results. He could easily have died.

6. The Applicant's Perfected Grounds of Appeal against sentence are that:

(1) Had the learned Judge had the benefit of reports or information as to the Applicant's mental and medical history he would not have found, as he did, that "There is nothing of any substance that can be said for mitigation on his behalf." (p. 33 Appeal Bundle). Accordingly a sentence of 6 years imprisonment which took no account of the Applicant's mental and medical history was manifestly excessive and/or wrong in principle.

(2) In the light of information which has become available since sentence was passed (in particular related to the dangerous condition of the Applicant's brain) the sentence is manifestly excessive and/or wrong in principle.

7. Reverting to the facts, the Applicant in a caution statement taken on 2nd June 1990 made a somewhat incoherent and fanciful statement that, in the light of the evidence of witnesses to the incident on 2nd June 1990, raises the question of whether he was suffering from some delusion in suggesting that it was he that was under attack and that some attempt was made to rob him. There was no mention of the Applicant's medical and mental history at his trial. The learned Judge's reasons for sentence ended with the words complained of in the perfected first ground of appeal.

8. Prior to the hearing of his application, the Applicant appeared on two occasions before a different division of this Court. On the first, upon the request of his counsel Mr. Macrae, the hearing was adjourned for two months to enable a report to be secured from a neurosurgeon. It resulted in the discovery that the Applicant had a brain tumour which was inoperable and which could cause his death at any time if it began to haemorrhage, which a blow to the head could cause. On the second occasion the court was understandably concerned about the Applicant's mental state in relation to the conviction, and directed that a medical report be obtained in relation to the conviction.

9. Upon the Perfected Grounds of Appeal against sentence, Mr. Macrae sought first, a determinative hospital order under ss. 45 and 46 of the Mental Health Ordinance (Cap. 136), in lieu of the sentences of imprisonment. In the alternative, if that course did not commend itself to the court, he asked for a reduction of the sentences on the ground that they were excessive.

10. As to a determinative hospital order, it can be seen quite plainly from the wording of sub-section 1(b) of s. 45 of Cap. 136 that a hospital order under s. 45 can only be made if:

"the court. or magistrate is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance-with section 46 that -

(i) such person is a mentally disordered person; and

(ii) the nature or degree of the mental disorder from which the person is suffering          warrants his detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment ..."

Three medical reports were put before us. First, a report dated 4th March 1'391 from Dr. F.K. Tsang, the visiting psychiatrist to Lai Chi Kok Reception Centre where the Applicant was then detained. This was provided in response to the direction made earlier by a different division of this court. Dr. Tsang concluded in paragraphs 7 and 8 of his report:

"7. In my opinion, this defendant has not been suffering from any formal mental illness in the legal sense. Polysubstances abuse is his main problem and he is unlikely to be benefited from psychiatric treatment. At the material time of the offence, he was most probably acting under the disinhibiting effect from the alcohol and street drugs he took. Yet, his self-control, emotion and perception was not substantially impaired and he was fully aware of the nature and consequence of his behaviour. Psychiatric treatment is not indicated. I have no medical recommendation to make.

8. He is fit to plead."

Dr. Tsang's report was made before the neurosurgical examination which revealed the Applicant's brain tumour.

11. Second was a report from Dr. K.L. Chan, Medical Officer, University Psychiatric Unit, Queen Mary Hospital. This recorded a history of mental illness, specifically that the Applicant was seen at the Hong Kong Psychiatric Centre in August 1974, when he was diagnosed as having an acute hysterical reaction. He was seen again in 1976 for drug overdose when he was apparently rejected by a girlfriend. He was diagnosed as suffering from transient situational disturbance. He consulted the Unit again in 1990 for suspected drug overdose and alcoholic abuse.

12. The third report was provided by Dr. Mak Ki Yan at the request of the Director of Legal Aid. Having recorded the Applicant's history and the discovery of the brain tumour he concluded his report in the following way:

"8. I am therefore of the clinical impression that Mr. Leung is suffering from multiple psychiatric disorder. Basically, he has a vascular tumour in his brain which may have caused his poor academic performance in childhood, and the psychiatric disturbance at the early age of 19, besides his current headache and memory dysfunction. Unfortunately, he was just diagnosed to have a nervous disorder and was given tranquillizers to which he became habituated to. Besides, he had a long history of chronic alcoholism and multiple drug abuse. These substance abuse could in fact alleviate the constant headache due to his brain tumour. But under the influence of alcohol and psychotropic drugs, mental confusion could easily occur, and as his temporal lobe was affected by a large tumour, he (sic) behaviour could easily become quite bizarre. Furthermore, these factors could also affect his memory function which can explain about the inconsistencies in his plea.

9. As the presence of a large vascular tumour in the brain is rather a dangerous condition to his life (the rupture of which could kill instantly), I have advised the prison doctor (Dr. Tu) that Mr. Leung should be assessed by a neurosurgeon. If surgery is not possible, I would recommend that he be given a more lenient sentence in view of his brain lesions which may have initiated his multiple drug abuse, but on condition that he attended a psychiatric clinic for regular treatment and be compulsorily rehabilitated at a hostel for discharged mentally ill criminals.

10.Currently he is still mentally fit to plead, but if surgery is indicated and if he survived the operation, he may have to be examined again for his mental fitness to stand trial."

13. It can be seen therefore that while there is cause to suspect the Applicant's mental stability and indeed that there is evidence of mental illness in the sense of disturbance, no evidence of actual mental disorder has been forthcoming. In lieu, Mr. Macrae invited us to obtain a medical report from a medical officer in terms of s. 46(1) Which requires the second medical practitioner under s. 45(1)(b) to be a medical officer, i.e. a registered medical practitioner in the full time employment of Government. Given that the three doctors whose reports have been mentioned, including the doctor consulted on the Applicant's own behalf by the Director of Legal Aid, have not felt able to conclude that the Applicant is mentally disordered, we think it would be wrong and a waste of time to do so, particularly in the context of the delay that has already been sustained. It follows therefore that a hospital order could not properly be made under s. 45 in the present circumstances.

14. Turning to the severity of the sentences, Mr. Macrae did not persist in his reliance upon the dangerous condition of the Applicant's brain in the light of Mr. Coghlan's two authorities that ill health is not a matter for mitigation of sentence although it may well be a matter for the Executive in relation to a consideration of sentence if it is brought to their attention and deserve such consideration (R v Wong Sik Yuen CA2/91; R v Yuen Siu Wah CA438/87).

15. However, he did rely upon the following passage at p. 216 of the 2nd Edition of Thomas's Principles of Sentencing:

"Ill health will have greater effect in mitigation where it can be shown to be related to the commission of the offence as a causative factor. In Murfin a sub-postmaster was sentenced to two years' imprisonment for stealing from the post office. The Court considered that the sentence was 'not manifestly excessive', but reduced it to twelve months on hearing that at the time of the offences the appellant had been suffering a cerebral tumour which might have affected his insight and judgment. In a similar case where the amounts involved were much smaller, the Court suspended a sentence of nine months' imprisonment, which 'in a normal case ... would have been on the lenient side, in the light of medical evidence relating to cerebral haemorrhage, which might have been a cause of the offender's behaviour."

However, the medical evidence before us was to the effect that it was the alcohol or psychotropic substance abuse (which it was not suggested was other than voluntarily consumed) might or was likely to have caused the Applicant's behaviour, not the tumour itself. To meet that difficulty Mr. Macrae was constrained to argue that such consumption was intended to alleviate the pain from the tumour and therefore that the latter was the cause of the Applicant's behaviour. Notwithstanding some inclination on the part of Mr. Coghlan for the Crown to accept that argument, it did not commend itself to us and we reject it.

16. Finally, Mr. Macrae submitted that a total of five years and nine months was manifestly excessive or wrong in principle. However, Fung received four severe wounds and his wife two serious wounds. The attack, although not premeditated, was persisted in, and carried out with large knives. Moreover, the Applicant had a previous conviction for assault occasioning bodily harm. In the circumstances we do not accept that the sentences in total were excessive or wrong in principle.

17. That said, we wish to record our concern about two aspects of this case. First, the danger to the Applicant's life from the tumour haemorrhaging into his brain which could be caused by a blow to his head. It was this that largely prompted the concern that led to Mr. Macrae seeking a hospital order. We share that concern and order that a copy of this judgment with the three medical reports, be sent to the Commissioner of Correctional Services so that the danger is not overlooked, and also so that s. 52B of the Medical Health Ordinance (which makes provision for the Governor to direct removal to a CSD psychiatric clinic) may be resorted to if considered appropriate.

18. Second, we record our concern about the danger the Applicant could pose to the safety of others, given his mental ill health in combination with some indication of aggression and attacks on others.