HKSAR v. TONG MONG LEONG

HCCC 33/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 33 OF 2015

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

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COURT: The defendant Tong Mong-leong was charged with one count of manslaughter, contrary to common law, and punishable under Section 7 of the Offences against the Person Ordinance, Cap 212.

He pleaded guilty before me. I convicted him of manslaughter after he admitted to the Summary of Facts read out to him, and after I was satisfied that the Summary of Facts supported the plea of manslaughter tendered.

The offence admitted by the defendant disclosed that on 10 June 2014, at around 0045 hours, the deceased, Wong Wai‑tak, who was then a 29-year-old salesman was walking along Sai Yeung Choi Street towards Argyle Street with two friends after dinner, when he was struck on the head by a swivel chair that had fallen from above.

I shall read out the facts first.

A report was made to the police and the deceased was conveyed by ambulance which arrived at the scene shortly, and was admitted into the Kwong Wah Hospital, where he was certified dead at 0119 hours, and Dr Yue Kai-hong of the Accident and Emergency Department confirmed that there was a 10-cm open fracture on the deceased’s skull over the left side with the underlying brain tissue being exposed.

The police found the defendant at around 0120 hours on 10 June 2014 on the rooftop of 59 Sai Yeung Choi Street. The police also found two abandoned chairs on the rooftop, one of which was a swivel chair.

Upon enquiry, the defendant told the police that he had come to the rooftop shortly after midnight, and he had randomly thrown a chair down the street, because a voice told him to do so. According to the officers, the defendant looked dull and anxious. The defendant was then arrested and cautioned, and repeated his admission that he had thrown a chair down the street.

The defendant was admitted to the Kwong Wah Hospital. A mental assessment on him revealed that he was suffering from severe depression with psychotic symptoms. The defendant was transferred to the Castle Peak Hospital and later to the Siu Lam Psychiatric Centre.

The bloodstain on the back frame of the broken swivel chair at the scene was found to have the DNA of the deceased. Dr Tao Chi-hang, a forensic scientist who attended the scene conducted a simulation test on the basis of the data he collected, and concluded that if the chair was thrown by the male of normal build, it could have been thrown from the rooftops of 59 to 61 or 63 to 65 of Sai Yeung Choi Street South.

It was later confirmed that the defendant had rented a bed space on the 9th Floor of 59 Sai Yeung Choi Street since May 2014.

The closed-circuit television installed on the ground floor of 59 Sai Yeung Choi Street had captured the defendant entering the building at 0054 hours on the day in question.

An autopsy was conducted on the next day, that is, on 11 June 2014 by Dr Chiao Wing-fu. The autopsy findings showed that the deceased died of head injury. The head injury had caused a large scalp laceration, skull fractures and severe brain damage. The head injury was so severe that it could have caused death within a short period due to the massive bleeding and brain dysfunction.

Dr Chiao was also of the view that the nature and pattern of the deceased’s head injury was compatible with being hit by a blunt object forcefully.

The defendant admitted that on 10 June 2014, he threw the swivel chair from the rooftop of 59 Sai Yeung Choi Street, which hit the deceased, causing his death.

Now, the background of the defendant.

The defendant is a young man born in September 1991. He was thus 22 years old when the manslaughter occurred, and 24 years old now. The defendant was born in the mainland, and he is his parents’ only child.

His parents divorced when he was 7 years old, and he was taken care of by his paternal grandparents. His mother visit him about once every few months, and his father once every half year. He studied up to Form 3 and worked as a factory worker before coming to Hong Kong in 2009.

He lives alone in Hong Kong and had worked as a waiter. His employment was not stable. Financially, he relied on what he could earn and support from his mother who lives in the mainland. The defendant is not close to his father, although the father lives in Hong Kong.

The defendant does not have any previous convictions, but he was bound over by a court on 6 January 2014 in the sum of $2,000 for 24 months. I learn from the prosecutor that on that occasion, the defendant was involved in an incident of fighting in a public place, and at the time it does not appear that the court was aware of the defendant’s mental condition. I was informed that the defendant does not have $2,000 now to pay the amount.

The defendant was known to the mental health services since March 2014, when he was admitted to the Kwai Chung Hospital from 25 March to 5 May last year. So prior to sentence, I called for psychiatric reports on the defendant. I received two reports, one from Dr Amy Liu and the other from Dr Dorothy Tang. Both doctors set out the defendant’s personal background and the psychiatric history.

In relation to the defendant’s admission to the Kwai Chung Hospital, the defendant was documented to have depressive symptoms. He was seen walking dangerously towards the edge of the roof and passers-by reported to the police. After that, the defendant was admitted to the Kwai Chung Hospital. The defendant spoke of hearing non-existence male voices scolding him and having harboured fleeting suicidal ideas.

After the defendant was discharged from the Kwai Chung Hospital, about 10 days or so before the incident, the defendant stopped taking medication as the intensity of his psychotic symptoms had reduced, and he did not like the side effects of sedation and the sluggish response.

As to the present offence, what the defendant told the doctors amount to this. He had drunk some beer, but he was not drunk. He went up to the rooftop, and he heard a voice scolding him, telling him to die. The voice told him to throw things. He was angry with the voice and he just picked up the chair and threw it into the street. The defendant had not thought of the consequences of his action.

Dr Amy Liu was of the view that the defendant is suffering from schizophrenia. Although his mental condition improved during his remand at the Siu Lam Psychiatric Centre, given his background of unfavourable social factors, his poor insight and poor drug compliance which led to the rapid deterioration in his mental condition and subsequent dangerous behaviour, further consolidation of treatment and rehabilitation is necessary. That is part of the report. Dr Liu recommends a hospital order under Section 45 of the Mental Health Ordinance, for an unspecified period.

Dr Dorothy Tang was of the view that the defendant is likely to be suffering from schizophrenia with differential diagnosis of schizo-affective disorder, depressive type. He presented with positive psychotic symptoms of auditory and visual hallucination, persecutory and reference delusion, together with low mood and suicidal ideation. Whilst his mental condition stabilised during remand, further rehabilitation and insight instillation are warranted. Dr Tang also recommends a hospital order for an unspecified period.

Both doctors indicate that provision has been made for the defendant to serve the sentence at the Siu Lam Psychiatric Centre with a view of being transferred to the Castle Peak Hospital for the second stage of treatment.

Mr Lawrence Hui, counsel for the defendant in mitigation confirmed to this court that the defendant understood and agreed with the contents of the two reports. The defendant is remorseful of his deed and apologise to the family of the deceased. He agrees to be sentenced to a hospital order.

Before I deal with the sentence, I will mention that I received a letter from the deceased’s younger brother. He is a Mr Wong Wai-hang. He wrote to me expressing the pain suffered by his family due to the sudden death of his brother, how it had affected every member of the family, particularly his mother and grandmother. Mr Wong made the point that as a result of a mentally-ill person not taking his medication as prescribed, his family became broken overnight. The society was deprived of a person who was a responsible man, who was able to make contribution, and who was full of hope for the future.

Mr Wong urges more attention to be paid to the mentally-ill persons in our society, to keep a tab on their progress and their medical compliance, to avoid another family going through the suffering they had borne.

I will now deal with the sentence.

As we said time and again, sentencing is an art. It is particularly so in manslaughter cases, as manslaughter is committed in a variety of circumstances. There are understandably no guideline tariffs. The fact that the defendant is a mentally disordered person is of significance. As Stuart-Moore VP, as he then was, had said in the case of HKSAR v Chiu Yu To [2001] 3 HKC 186, at 192:

“Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.”

The circumstances of the present case, when the defendant did not even know the deceased, lead me to come to the view that the defendant’s mental disorder was indeed the root cause of the offence.

This court is prepared to abandon the concept of retribution and deterrence when dealing with this mentally-disturbed offender.

Both psychiatrists recommended that a hospital order for an unspecified period be made under Section 45 of the Mental Health Ordinance.

Having considered the relevant provisions of the Ordinance, including Sections 45, 46 and 47, I am satisfied that having regard to all the circumstances, including the nature of the present offence, the character and antecedent of the defendant, and to the other available method of dealing with him, the most suitable method of disposing of the case is by means of a hospital order.

In coming to this conclusion, I also bore in mind the fact that the defendant poses a grave threat to members of the public.

The recommendation is for a hospital order without a specified period. It is proper for this court to make a hospital order without the specified period, unless the doctors who had examined him can confidently say he is fit to be released within a specified period. Since neither doctor was able to do that, it is better for the protection of the defendant and of the public that the order be made without a specified period. So that way, the doctors can then recommend the defendant’s release to the Chief Executive when they are confident that the defendant could be released.

So for the offence of manslaughter, the defendant is to serve a hospital order for an unspecified period, under Section 45 of the Mental Health Ordinance.