HKSAR v. NG YAT CHIU

DCCC 742/2023

[2024] HKDC 1008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 742 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleaded guilty to the following four charges

Charges 1 and 2: Criminal Intimidation contrary to sections 24(a)(i)  and 27 of the Crimes Ordinance, Cap. 200;

Charge 3 : Possession of an Offensive Weapon, contrary to section 17 of the Summary Offences Ordinance, Cap. 228;

Charge 4 : False Imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Cap. 221.

SUMMARY OF FACTS

2.  There are two victims in the case.  They are the son (in relation to Charge 1)  and daughter (in relation to Charges 2 to 4)  of the defendant.  At the material time, the son was aged 17 and the daughter 11 years.  The four charges are a series of events that took place over one day at their home when their mother, wife of the defendant, was out of the home, at her place of work.

3.  On 30 April 2023 at about 11:30am, having had a money dispute with his wife over the phone, the defendant asked the son to print out some images of a resignation letter of a colleague of his wife.

4.  The son complied but having done so, he locked himself up in the bathroom and informed his mother via WhatsApp about it.

(Charge 1)

5.  Obviously somehow the defendant learnt about it.  He banged on the bathroom door and scolded the son for telling his mother.  The son did not open the door.  The defendant then went to the kitchen and picked up two knives. Holding one knife in each hand, the defendant banged them onto the bathroom door 3 to 4 times while repeatedly threatened to chop the son to death.  This lasted 3 to 4 minutes.  The son was scared and called the police while remaining in the bathroom.

(Charges 2 to 4)

6.  The knives were a chopper and a kitchen knife.  The chopper was 29cm in length including the handle, with a 13cm long sharp blade.  The kitchen knife was 24.5 cm in length including the handle, with a 17.5 cm sharp blade.

7.  When this happened, the daughter was in the living room.  She saw how the defendant got hold of the knives and banged them onto the bathroom door.

8.  Meanwhile, the wife came back and asked the defendant to open the door. The defendant refused.  She did not have the keys to the unit at that time.

9.  At about 12:07pm, the police arrived.  The main door was open but the iron grille was locked.  The defendant refused to open the iron grille as requested and even closed the door.

10.  The daughter wanted to open the door for the police but was stopped by the defendant.  Holding the two knives in his hands, the defendant ordered the daughter to sit down and not to interfere or else she would die first.  The daughter was scared.

11.  Later on, the defendant opened the main door and scolded the police emotionally while the daughter was seen standing in the living room crying.  A moment later the defendant holding the chopper in his right hand, walked towards the police and closed the main door again.  The defendant shouted from inside that he was going to kill the daughter.

12.  The police then started to prize open the iron grille and at the same time gave repeated warnings to the defendant that they were about to force open the main door.  The defendant immediately grabbed the daughter and held the kitchen knife to the daughter’s neck in one hand while wielding the chopper at the police in the other.  The defendant threatened to kill the daughter if the police entered.

13.  At about 12:15pm, the police forcibly opened the main door.  They saw the defendant was holding the daughter hostage at knifepoint.  The police discharged OC foam at the defendant who then let go of the daughter and dropped the knives.  The defendant was subdued and subsequently arrested.

14.  During the incident, the defendant had held the kitchen knife to the daughter’s neck for 3 to 4 minutes.

15.  The son came out from the bathroom after the police had told him it was safe to do so.

(Injury)

16.  Both the son and the daughter were sent to the hospital for examination.  No physical injury was found on the son.  Mild bilateral conjunctive redness was found on the daughter.

CRIMINAL RECORD

17.  The defendant has a clear record.

BACKGROUND AND MITIGATION

18.  The defendant is 50 years old.  He used to work as an administrator in a post office, earning around HKD10,000 per month.  In about 2010 at his workplace, he was hit by a trolley and injured his hip.  Since then he was unable to work and became the house-husband of the family.  He has been receiving disability allowance.

19.  As revealed in the summary of facts, the defendant and his wife have 2 children, the victims in the case.  The son is now aged 18 and the daughter 12 years respectively.

20.  Counsel for the defendant Mr Leung submits that since the defendant was detained for the present offences, the family had moved out of the matrimonial home and found government housing elsewhere. The defendant plans to return to live in the matrimonial home alone upon release from custody.

21.  Mr Leung further submits that as revealed in the psychiatrists’ reports obtained in May 2023 by the magistrate when the defendant was brought to the court, the defendant has suffered from psychological disorders since 2010, when he was diagnosed with moderate depressive episodes.  At the time of the offences, the defendant unreasonably believed that his wife was having an extra-marital affair.  He felt extremely jealous and suffered from delusional disorder.  He is now aware that his thoughts were unjustified and he had jumped to unreasonable conclusions against his wife due to his deluded mind-set.  He is remorseful.

22.  Mr Leung stresses that the crimes were not pre-meditated.  The defendant did not envisage that his mood would escalate and spiral out of control, or that the police would arrive.  He was suffering from an undiagnosed mood disorder and sadly reacting to matters that he had not pre-conceived.

23.  The defendant is extremely remorseful and promises never to reoffend. He promises to take his medication on a regular basis and to exercise more self-control in the future, so as to prevent himself from acting in a deluded manner again.

CONSIDERATION

24.  In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Leung together with the letters of mitigation written by the defendant and his family members.  I have also taken into account the pre-sentencing reports obtained, namely a background report and two psychiatrists’ reports.  I have also been referred to authorities and cases dealing with sentencing similar offences.

25.  Despite the defendant’s admission to all these charges, it is clear from the nature and number of charges, the facts pertaining to each charge as well as the background of the defendant that the only viable sentencing option is imprisonment.  The 2-month hospital order recommended by the psychiatrists is too lenient, which fails to reflect the seriousness of the charges.  The only question to be determined is the length of the sentence for each charge, and the length of the overall term of imprisonment to be served by the defendant.

26.  The maximum sentence for the offence of criminal intimidation, as provided in section 27 of the Crimes Ordinance, is 5 years’ imprisonment.  The maximum sentence for the offence of possession of an offensive weapon with intent, as provided in section 17 of the Summary Offences Ordinance, is 2 years.  The maximum sentence for the Common Law offence of false imprisonment, as provided in section 101I of the Criminal Procedure Ordinance, is 7 years’ imprisonment.  There are no guidelines or tariffs for these types of offences. The starting point for the charges are very fact-dependent meaning they depend on the facts of each case.

27.  I accept that the offences were not pre-meditated.  At the time of the offences the defendant suffered from delusional disorder as evidenced by the persistent persecutory morbid jealousy towards his wife, with history of depression, as diagnosed by the psychiatrists in the reports.

28.  However, the fact that the defendant acted in the false belief that his wife was having an affair with her colleague had nothing to do with the children. The defendant went even so far that he took knives from the kitchen and used them to alarm the children while at the same time uttering threatening words towards them.  The defendant further put the daughter at the knifepoint when the police were trying to enter the premises and save the children.  It was by sheer luck that the daughter did not suffer more serious physical injury as a result.  The defendant was in stark breach of the trust owed to his children by committing the present offences.  It must have been an extremely frightening experience for the children, especially for the daughter who was only 11 years old and now 12.  The daughter said in her victim impact statement that she still felt scared whenever she heard sounds of keys to the iron grille or that of knocking doors worrying that the defendant would go home.

29.  Having said that, I consider there were no profound short-term or long-term effects of the ordeal on the two victims as they both said in their respective victim impact statement that they could continue to go to school and take part in social activities as usual after the event.

30.  The whole incident lasted about half an hour, during which the defendant subjected the children to substantial fear and the daughter was detained against her will for about 7 minutes.

STARTING POINT

31.  In all the circumstances, bearing in mind the previous good character of the defendant and that he is now truly remorseful and having regard to the seriousness of the offences as outlined above, I consider the appropriate starting point for the charges are as follows:

Charge 1 : 12 months’ imprisonment

Charge 2 : 15 months’ imprisonment

Charge 3 : 18 months’ imprisonment

Charge 4 : 21 months’ imprisonment

MITIGATING FACTORS

32.  In regard to mitigating factors, first, the defendant pleads guilty, I reduce the starting points by one third to 8 months, 10 months, 12 months and 14 months respectively.

33.  Second, in HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind.

34.  Both Dr. Wong and Dr. Tang, in their respective reports dated 12 May 2023 and 17 June 2024, opined that the defendant had long suffered from delusional disorder as evidenced by the persistent persecutory morbid jealousy, with history of depression.  I accept their opinion and take this into account in passing sentence.

35.  Third, both children expressed in their respective victim impact statement and letter of mitigation that they forgive the defendant and hope that the court can give the defendant a lenient sentence.  In R v Buchanan [1980] 2 Cr App R (S)  13 as applied in Secretary for Justice v Chau Wan-fun [2006] 3 HKLRD 577, the court held that the fact that the offence was committed within a domestic context and the victim had forgiven the offender, did not deflect from the duty of the court to impose a sentence appropriate to the gravity of the offence.  Nevertheless, I take the forgiveness of the children into account in passing sentence.

36.  Taking into account the defendant was suffering from delusional disorder and the declared forgiveness of the children, I further reduce the sentences by 2 months to 6 months, 8 months, 10 months and 12 months respectively.

SENTENCES

37.  So the sentences will be as follows :

Charge 1: 6 months’ imprisonment

Charge 2: 8 months’ imprisonment

Charge 3: 10 months’ imprisonment

Charge 4: 12 months’ imprisonment

TOTALITY

38.  Charges 2 to 4 took place after the presence of the police and following their request for opening the door.  These three offences arose out of the same incident and were part of one transaction, I am satisfied concurrent sentences are appropriate, making a subtotal of 12 months imprisonment.

39.  Charge 1 took place before the presence of the police.  Although it is related to the other three charges, it is somewhat a separate and distinct offending arising from the defendant’s anger towards the son for his telling of his mother about the printing matter.  Charges 2 to 4 increased the culpability of the defendant.  Taking into account the totality principle, I order that 3 months in Charge 1 be run consecutively to Charges 2 to 4, making a total of 15 months’ imprisonment.

40.  In summary, the defendant has to serve a total of 15 months’ imprisonment.

41.  I am mindful that the defendant has been in custody since the date of his arrest, 30 April 2023.