HKSAR v. SO WAI KEUNG

DCCC 159/2020

[2020] HKDC 658

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 159 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of Wounding with Intent, contrary to s 17(a) of the Offences against the Person Ordinance, Cap 212 (the 1^st Charge), and to one charge of Wounding, contrary to s 19 of the same ordinance (the 2^nd Charge).

Facts

2.  On the morning of 24 December 2019, the defendant’s mother and elder sister were outside Maxim’s MX restaurant in the Temple Mall South in Wong Tai Sin waiting for the defendant to join them for a short trip to Macau.  The defendant’s mother suddenly felt pain on her back and let out a cry.  The defendant’s elder sister turned around for a look and saw the defendant stabbing her mother’s back with a knife.  In her efforts to put a stop to the assault, she sustained a 1.5 cm x 0.5 cm laceration on the back of her hand.  The mother was subsequently found to have sustained 11 stab wounds, mainly over her right upper back and right shoulder.  She was given emergency surgery and was hospitalised for 28 days.

3.  Under caution at the time of his arrest, the defendant told the police that he suffered from psychiatric illness, and that was why he stabbed his mother.

4.  In a video-recorded interview conducted by the police in the presence of his social worker, the defendant said he had suffered from Paranoid Schizophrenia for 10 years and he had to attend follow-up treatments.  At the material time he was living in a half-way house.  His family was planning to go to Macau with him on 24 December 2019.  On his way to meeting up with them, he bought a knife from a supermarket, which he later used to stab his mother due to the onset of his psychiatric illness.  He put the knife on the ground after the attack on his mother.  He heard from others that his elder sister got injured by his knife too.

Criminal Record

5.  The defendant has a clear record.

Mitigation

6.  The defendant is 42 years old and was educated to form 3 level.  He has had mental illness for 10 years and was a halfway house resident at the time of the offence.  He had been making a living by handing out flyers until his arrest on 24 December 2019.

7.  In their mitigation letters, his mother and his siblings all speak of the defendant as a good man with a kind heart under normal circumstances.  His mother has not only forgiven him but has put the blame on herself for having failed to provide the defendant sufficient care and attention.  His social worker at the halfway house says the defendant is kind, cooperative, obedient and mixes well with others, but he lacks confidence and has problem expressing his feelings and venting his pressure.  His kind-heartedness is borne out by his having adopted two children through World Vision in the year 2012/2013.

8.  Two psychiatrist’s reports were called for when the defendant appeared in the magistracy.  He was considered fit to plead by both psychiatrists.  The reports say the defendant has suffered from paranoid schizophrenia for about 10 years, and he presented personality change, deteriorating self-care and disorganised behaviour.  At the time of the offence, he heard a non-existent male voice telling him to stab his mother with a knife.  This led him to buying a knife and using it to attack his mother.  He suffered from paranoid schizophrenia with auditory hallucinations and likely paranoid delusion against his mother.

9.  His counsel Mr Roy Lau urges the court to adopt the psychiatrists’ recommendation of making a hospital order under s 45 of the Mental Health Ordinance.  In support of his suggestion, Mr Lau refers to HKSAR v Chiu Wai Ka DCCC 97/2014 and HKSAR v Fung Sai Keung DCCC 963/2017, both of which decisions were founded on the approach enunciated by Stuart-Moore VP in HKSAR v Chiu Yu To [2001] 3 HKC 186, at 192 where he said:-

“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.”

Sentence

10.  In R v Chan Kin CACC 421/1989, Silke VP described the making of a hospital order as being: “…for the protection of the public and in the interest of the applicant.”

11.  For the general tenor of the courts’ approach to sentencing mentally ill offenders, Stuart-Moore VP in Chiu Yu To (supra), cited an article entitled “Sentencing the Mentally Disturbed Offender”, (1965) Crim L R 685 at 698 which reads:-

“A survey of decisions of the Court since the passing of the Mental Health Act, 1959, suggests that the powers given by the Act are being used whenever possible. The Court is quite prepared to abandon concepts of retribution and deterrence when dealing with a mentally-disturbed offender who has committed even a serious offence of violence which would in the normal way attract a deterrent sentence, and sentences of imprisonment are used only where a hospital order or probation order with a condition for treatment are unsuitable; in such cases an indeterminate sentence is used wherever possible, although there is some reluctance to do so where the offence concerned is not the most serious category.”

12.  According to the 2 psychiatrist’s reports which l called for (one from Dr Amy Liu and one from Dr Li Ka Tai), the defendant has been known to mental health services since 2010.  He has had 5 previous psychiatric admissions.  One of those admissions was in 2018, consequent upon his having stabbed his mother which resulted in facial fractures and multiple injuries to her, and in the defendant being labelled as an Intensive Care case.  Upon his discharge in May 2018, he started to reside at a hostel.  His most recent admission was from 25 December 2019 to 6 January 2020 after stabbing his mother in the present incident.

13.  The defendant told the psychiatrists with regard to the present incident that he had agreed to go to Macau with his mother and two elder sisters on the day in question.  After leaving the halfway house and on his way to meeting up with his mother and sisters, he heard a non-existent voice telling him to attack his mother.  He thought it was the voice of God.  He then went to the supermarket to buy a knife which he used to stab his mother when they met.  His sister’s hand was injured while trying to stop him.  He said he did not have any concrete plan for the extent of injury to inflict on his mother.  He denied persecutory beliefs towards his mother.

14.  Both psychiatrists hold the view that the defendant suffers from Paranoid Schizophrenia.  Despite his denial of most psychotic symptoms, the psychiatrists think that in light of his repeated and serious violence towards his mother, it is very likely that the defendant holds persecutory beliefs against his mother.  He poses a high risk of violence to others, especially to his mother.  Under those circumstances, both psychiatrists highly recommend a period of in-patient psychiatric treatment for the defendant, and both of them recommend that a Hospital Order be made under section 45 of the Mental Health Ordinance for a period of 9 months.

15.  Having read all four psychiatric reports, I am convinced that the defendant suffers from psychiatric problems which require treatment, and that it will be in the interests of the defendant, his family members and the society at large that the defendant should receive proper treatment for his problems.

16.  A hospital order seems to be the best sentencing option in the circumstances of our case.  I hereby make a Hospital Order under section 45 of the Mental Health Ordinance that the defendant is to be committed to the Siu Lam Psychiatric Centre for the recommended period of 9 months on both charges.