ATTORNEY GENERAL v. NG CHAK HUNG

IN THE COURT OF APPEAL

1994, No. 1
(Application for Review)

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J U D G M E N T

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Silke, Acting C.J.:

1. This is the judgment of the court.

2. Ng Chak Hung - "the respondent" - appeared for trial before Her Honour Judge Chua on a charge sheet containing one charge of wounding with intent contrary to section 17 of the Offences Against the Person Ordinance, Cap. 212. The particulars were that he on 12th June 1993 at Room 37, Block 9, Tai Wah Ping Temporary Housing Area, unlawfully and maliciously wounded Chan Loi Fat with intent to cause him grievous bodily harm.

3. To that charge, he pleaded not guilty, his then counsel advising him to take this course on the basis that the defence would be that he did not have the necessary intent by reason of disease of the mind. There was no real attempt to make that defence out and he was, on the merits, found guilty.

4. The trial judge having considered the evidence that had been led relating to the offence was of the view, and we shall set out the facts in a moment, that the respondent was provoked. She did not see him as being a danger to society and thought it proper to punish him with the sentence of imprisonment for 6 months suspended for 2 years.

5. The Attorney General, with leave, and under the provisions of section 81A of the Criminal Procedure Ordinance, asks this court to review that sentence as being one not permitted by law. It is not contested, nor indeed could it be, that the sentence was one which the trial judge had no jurisdiction to impose. Section 17 is an excepted offence. This court was therefore left at large as to what the proper sentence should be.

6. We would say at the outset that it is unfortunate that the Legislature has seen fit to remove the option of a suspended sentence from a sentencing judge in relation to a S.17 offence which can vary greatly in its gravity. We have no doubt that the judge had the best of intentions in taking the course she did. But, as we have indicated, the course she took was not one which was open to her.

7. The facts, as disclosed by the evidence, were that the respondent had come to Hong Kong with the victim in 1974 when the respondent was eleven years old. The respondent has been in continuous employment since he left school at an early age. He worked as a factory worker or a restaurant worker. Since April of 1994, he has worked as a loader in a transportation firm with a monthly income of $8,000. He has a clear record. This in contrast to the victim who has spent a great deal of the time in prison. His first conviction was in 1979. He had further convictions in 1981 and 1985. The 1985 conviction was in respect of offences of false imprisonment, wounding with intent and blackmail. He was sentenced to imprisonment for 6½ years. When he came out of prison after serving that sentence, he had nowhere to stay and he imposed himself upon the respondent. Eventually, by his behaviour, driving the respondent out of his home. However, some few weeks prior to the commission of the offence the respondent returned to his room at Block 9 of Tai Wah Ping Temporary Housing Area. There was constant friction and irritation between them. The respondent said that the victim had borrowed money from him. The victim drank to excess.

8. On the night of the incident, there was a quarrel and the respondent left his room at about 8 p.m. in the evening. He returned at 11 p.m. and there was a further wordy quarrel. This was the culmination of many incidents. The respondent "fumed", as the judge put it, during the night and at about 5 a.m., with the victim asleep under a mosquito net, the respondent stabbed him a number of times with a scissors. The victim awoke and struggled with the respondent grabbing the scissors. The respondent then took a fruit knife from his mattress and continued to stab the victim. The victim got to the phone and called the police who arrived shortly thereafter. The police described the respondent as looking very angry.

9. The victim was taken to hospital where there were multiple small wounds found over his left upper chest, arms, side hip and thigh. These were sutured and he left hospital after two days.

10. The judge considered the respondent to be a gentle and totally truthful witness and thought the victim to be an unpleasant character and a bully.

11. The judge had before her a report from Dr. Lui of the Yau Ma Tei Psychiatric Centre. This showed that the respondent first attended there in 1986 when he was diagnosed as suffering from schizophrenia. He continued to attend until September 1992. He then stopped going to the clinic because he considered himself totally well and the symptoms of headaches, which had prompted him to go there in the first place, had disappeared.

12. This case troubled us and, the first time it came before the court on 22nd March 1994, we adjourned the matter and called for the supply of the full transcript so that we could view the whole of the evidence. It was listed again for 20th May 1994 but, through mischance, the court was unable to deal with it on that date. When the hearing resumed on 21st June 1994, we again adjourned the matter, requiring a probation officer's background report and an up-to-date psychiatric report as to the mental state of the respondent.

13. On 10th August 1994 we had before us a very useful probation officer's report together with a further psychiatric report from Dr. S.F. Chan, Medical Officer, Yau Ma Tei Psychiatric Centre.

14. Mr. Law who, appeared for the applicant in this court, has asked us to consider the making of a probation order. He emphasises the clear record and remorse of the respondent; the constant friction and irritation caused by the ex-convict living in the same premises as the respondent; the fairly minor nature of the injuries; the mental state of the respondent and the fact that he had, on 17th June 1993, which was five days after the offence had taken place, returned to the Yau Ma Tei Psychiatric Clinic of his own volition. He also emphasised the gainful employment which the respondent has obtained since the date of the incident.

15. The respondent is a married man with a wife in China and that wife is now pregnant. While the respondent's attendance Yau Ma Tei Clinic after June 1993 was erratic, it was accepted that he had received regular drug treatment from a psychiatric centre in China in the six months prior to June 1994.

16. Dr. Chan was of the opinion that, when saw him at the end of June, his mental state was stable with no psychotic symptoms evident. He was of the view that continued psychiatric care, which could be provided at the Yau Ma Tei Psychiatric Centre, was still necessary for him.

17. The Probation Officer was of the view that, in the light of the willingness of the respondent - and of his neighbours to render assistance in the rehabilitation of the respondent - "statutory supervision appears to be still worthwhile in this case". The Probation Officer also suggested that there be certain conditions attached to any probation order that the court might see fit to make.

18. As we have indicated earlier, it was clearly the judge's intention to give this respondent a chance of rehabilitating himself. We think that we should honour that intention. We accept that it is unusual where the charge is one under section 17 of the Offences Against the Person Ordinance to make a probation order but, in the light of all the circumstances of this case and in particular the nature of the offender himself, we think that the interests of justice, the interests of the offender and of society in general will be served if we were to make such an order.

19. We therefore granted the Attorney General's application to review and set aside the sentence imposed by the sentencing judge as being one made without jurisdiction. We substituted for that sentence a probation order with the conditions that he work and reside at the direction of the Probation Officer; that he attends as required at the Yau Ma Tei Psychiatric Clinic and that he accepts such treatment as is advised by the professional staff of that clinic. The contents of that order, and the consequence of a breach were explained to the respondent, who was prepared to accept the order with those conditions. We therefore made the order in the terms indicated.