CRIMINAL CASE NO. 29 & 234 OF 2011
COURT: The defendant, Kwong Yuen-siu, was charged with one count of murder, contrary to common law and punishable under section 2 of the Offences against the Person Ordinance, Chapter 212.
The defendant pleaded not guilty to the charge but admitted an offence of manslaughter by reason of diminished responsibility. The prosecution accepted his plea to the lesser charge.
In view of the medical evidence made available to me, I approved such a plea. After the defendant admitted to the Summary of Facts read out to him, I convicted him of the offence of manslaughter.
The Summary of Facts
As disclosed in the Summary of Facts, this case arose out of the death of a 76-year-old man, Kwong King-nam, the deceased, who was the father of the defendant.
On 25 October 2009, the defendant’s mother telephoned for an ambulance and ambulance-men later arrived at a location in Choi Hung. There they found the deceased, tied by some plastic strips, on a folding chair, covered by a cloth. There were old wounds to his head, eyebrows, chest, both hands and legs. The ambulance-men found that the deceased was already dead.
The defendant was later located at his home. Upon police inquiry, the defendant said that he had used a cutter to injure the deceased in order to stop the deceased from going to place bets. He later said that he did not know whether it was because he had an argument with the deceased on 11 October 2009 and had used the cutter to cut the deceased’s leg and abdomen area.
Following the defendant’s arrest, the defendant made further admissions in five subsequent video-recorded interviews and one video-recorded case reconstruction. In a nutshell, the defendant admitted he had an argument and a fight with the deceased when he tried to stop the deceased from going out to place bets. He at first admitted he had used the cutter and caused injuries to the deceased. He later admitted he had in fact used a chopper.
He said the deceased’s condition improved initially but worsened on 24 October 2009, so he and his mother put the deceased in a folding chair and tied the deceased with plastic strings. They then took him downstairs and loaded him onto a trolley. They pushed the deceased to a temple and the defendant’s mother called for an ambulance by using the public telephone.
As to why no ambulance was summonsed to go directly to their home, the defendant explained that the flat was in such a dilapidated condition that calling an ambulance to the flat would have the effect of letting the Housing Department know of that fact, which would then result in their eviction.
The deceased was examined by Dr Lai Sai-chak, a forensic pathologist, who prepared an autopsy report. Dr Lai revealed that the deceased died from pneumonia because of being bedridden, which would have been a result of chop wounds sustained, especially at the knees, and pneumonia caused by septic arthritis as a result of multiple chop wounds (infection going from the wounds to the lungs). Dr Lai was of the view that the wounds would be non-fatal if there was proper medical attention.
Dr Lai found that a few wounds were inflicted with a heavy chopping instrument such as a chopper. The chopping on the eyebrow and the right kneecap resulted in chopping off of bone chips. The left kneecap bone was completely severed into two halves. The knee wounds were clearly infected. There were other infected wounds as well.
Dr Lai counted roughly 125 wounds of various ages, from days old to a couple of weeks old. It should be noted that Dr Lai described five of these 125 wounds as chop wounds consistent with wounds inflicted by a chopper, whereas the other 120 wounds were cut wounds consistent with being inflicted by a cutter.
The Defendant’s Background
I called for a background report and two psychiatric reports on the defendant prior to sentence. Gleaning from these reports, I gathered the following information in relation to the defendant’s background.
The defendant is now a young man of 24 with no previous conviction. He was 22 at the time of the offence. The defendant is the only child to his aged parents, who got married in 1980. The deceased stopped working in early 2000. The defendant’s mother had been the sole breadwinner of the family.
The defendant had an uneventful childhood and was a well-behaved youngster. The defendant studied up to form 7 and was doing self-study when the offence took place.
The defendant was good at his studies even though his schooling was interrupted when he was hospitalised due to his mental illness.
While the defendant’s A-level results were good enough to secure him a place at the Polytechnic University to study surveying, the defendant declined the offer and, instead, he decided to self-study in order to obtain higher grades to enter the University of Hong Kong.
I think it appropriate now to mention something about the psychiatric illness suffered by the defendant. The defendant was examined repeatedly by two psychiatrists, Dr S H Lui and Dr Amy C Y Liu. Both doctors gave me very detailed reports on the defendant. I do not think there is any need to reiterate them in full here.
The defendant started to exhibit abnormal behaviour of collecting dust when he was about 15. He was admitted to the Queen Mary Hospital in 2004 and was diagnosed as suffering from oppressive compulsive disorder. He was treated with medication and was discharged some five months later.
The defendant then continued his studies and repeated form 5. He scored good marks for the exam. In 2005, however, the defendant failed to attend treatment and started to be preoccupied with dust again. He was readmitted to Queen Mary Hospital in 2006 and was discharged after about one month.
The defendant then repeated form 6, studied form 7 and obtained three credits in the A-level exam. As I have already mentioned, although the defendant was already accepted by the Polytechnic University to study surveying, the defendant declined the offer and decided to self-study in order to obtain higher grades to enter the University of Hong Kong.
During the next 12 months, the defendant collected garbage and piled them high at his public housing home. The defendant felt the garbage gave him some sense of security. The photographs of the flat after the deceased was found showed the flat in a depressingly shocking state, with garbage piled high inside the flat, barely leaving enough space for one to pass through.
The defendant believed he would die young because of a congenital heart disease. The defendant felt stressed in September 2009 when he failed to secure a form 5 school placement and when he learned that there was a possibility of having an investigative surgical procedure relating to his heart condition.
From repeated interviews with the defendant, Dr Lui learned from the defendant that the defendant had developed an intense hatred towards the deceased on account of the deceased betting on the horses, believing that the gambling would bring the family to ruins. Dr Liu, on the other hand, noted the defendant had suddenly come up with a preoccupation that the deceased’s horse-racing was very bad, indicating the deceased was “not a good guy”.
During the attack, according to Dr Lui, the defendant did not see the deceased as his father. The defendant described a total absence of any filial affection towards the deceased, but seeing the deceased as an enemy that had to be removed to save the family. Dr Liu reported that the defendant felt the deceased looked down on him for bringing garbage back home, making the flat a mess.
The defendant became angrier and angrier when the deceased continued to gambling. He chopped at his father’s knees to stop him from going betting. Dr Lui was of the view that the defendant was suffering from schizophrenia when he chopped his father. Dr Lui gave a description of the effect of this illness:
“The effects of the illness on a person is severe and pervasive, marked by disordered thinking, bizarre preoccupations, distorted perceptions, blunting of emotions, impaired judgment, twisted morals, deteriorating personal care, lack of awareness of the problems and detachment from reality.”
This illness deprived the defendant of his sense of reality and his capacity to feel for others. The defendant was put back on anti-psychotic medication whilst in custody. The defendant’s mental condition fluctuated. Dr Lui is of the view that hospital treatment is necessary in the defendant’s case. As there is no telling when the defendant will improve sufficiently to be considered safe for discharge, Dr Lui recommended the defendant to be committed to the Siu Lam Psychiatric Centre for an unspecified period.
Dr Liu is of the view that the defendant is a young man with a long history of mental illness. He was in a state of psychosis at the time of the offence. A prolonged period of in-patient psychiatric treatment and rehabilitation is necessary for the defendant. Dr Liu recommended a Hospital Order for an unspecified period.
Mitigation
The defendant’s counsel, Mr So, informed me that the defendant wishes to be sentenced to a fixed term of imprisonment, rather than having a Hospital Order with an unspecified period imposed on him. The defendant wanted to know when he would be released and he felt that he would be able to study better in the prison environment than in a psychiatric centre, as he still dreamed to become a surveyor one day.
The defendant wrote to me in English and I must say the defendant’s English standard is very good. The defendant told me of his remorse and feeling of guilt after he killed his father. He knew what he had done was completely wrong and unacceptable morally. The defendant also said that his mother suffers from chronic heart disease and is in need of his care. He wishes to be reunited with her and promised to behave well in future. He asked me to treat him and his mother leniently.
The defendant’s mother also wrote to me. Basically, it is a heartfelt letter, pouring out her feelings towards this family tragedy. She also asked me to be lenient towards the defendant so that he can be by her side earlier.
The principal and the disciplinary master of the defendant’s former school also wrote to me. They told me what an outstanding student the defendant was. They both asked leniency on the defendant’s behalf.
The Sentence
This is a tragic case. The defendant, a young man of previous good character, chopped and cut his father when he was suffering from schizophrenia and harboured the idea that the deceased’s gambling was bad or would bring ruins to the family.
Although his mental incapacity or instability was spotted and treated when he was younger, it does appear that his failure to attend treatment and/or to take the required anti-psychotic medication had left his more serious schizophrenia condition unchecked. It would also appear that his parents were either powerless, or at a loss as to how to deal with the defendant’s obsessive and abnormal behaviour of hoarding their home with garbage he collected outside.
I accept the views of both psychiatrists that the defendant committed the present offence when suffering from a mental illness which clearly substantially reduced his mental responsibility for this crime.
Manslaughter is a serious offence. Any person who is convicted of manslaughter shall be liable to imprisonment for life and to pay such fine as the courts may award. When deciding what to do with the defendant, I am mindful of what Stuart-Moore VP has said in the case of HKSAR v Chiu Yu To [2001] 3 HKC page 186:
“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.”
Both Dr Lui and Dr Liu recommended a Hospital Order with an unspecified period. I also noted in the case of Tsui Chung Leung unreported, CACC414/1979, where Sir Denys Roberts, the Chief Justice at the time, said:
“In our view, it is proper for a court to issue a mental health order without any period being specified therein ... ... unless the medical opinion of psychiatric specialists who have examined the patient is to the effect that the patient can confidently be expected to be fit for release within a specified period. If the doctors cannot express this degree of confidence, it is wiser, both in the interests of the patient and for the protection of the public, that the order should have no term attached to it. It will then be for the doctors in charge of the patient to recommend his release to the Governor at the appropriate time.”
I fully appreciate the defendant’s own wish to be sentenced to a fixed term of imprisonment. I also understand the wishes of the defendant’s mother and the defendant’s former teachers for leniency in the particular circumstances of this case.
Having considered the psychiatric medical evidence provided by Dr Lui and Dr Liu, and bearing in mind the principles I have just mentioned, I am of the view that, for the protection of the public and in the interests of the defendant, this is a proper case to make a Hospital Order with an unspecified period, pursuant to section 45 of the Mental Health Ordinance, Chapter 136.
So for the offence of manslaughter, I make a Hospital Order in respect of the defendant with an unspecified period.