HKSAR v. CHOW JIE

HCCC 120/2019

[2019] HKCFI 2213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 120 OF 2019

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 8 April this year, the defendant pleaded guilty in the Magistrates’ Court to the charge of attempting to murder a man who was 30 years old at the time but who has been diagnosed as having moderate intellectual ability. As such, he has been referred to throughout the proceedings as X and the press have been requested to ensure that nothing is said in any report which might enable others to identify the person concerned.

X is a mentally incapacitated person whose mental handicap is of such a nature and degree that he is incapable of living an independent life or guarding himself against serious exploitation.

The defendant is 21. He came from the mainland in 2008 and at the time of the offence was living with his mother. It seems he had been unemployed for some time. He has not previously been in any trouble with the police. He also appears to have limited intellectual ability, which may well have arisen from an illness early in his development.

The defendant became acquainted with X through basketball but it seems that the games often did not take place because X failed to turn up even though he had agreed to meet the defendant. The importance of this is that the defendant eventually became angry with X because of his failures to attend when he said he would. This ultimately led to a plan to kill X.

The plan was put into effect on 10 January 2018 after the defendant invited X to go to the defendant’s home. When X arrived in the evening, this left just the defendant and X together in the house. X then was told a story about a game that they would play without exactly explaining what the rules were. The defendant who had been shopping for cable ties that afternoon used some of these to tie up X’s thumbs and wrists in what amounted to handmade handcuffs and he then put an eyeshade over X’s eyes to act as a blindfold. The defendant then used a knife to slash X’s neck a number of times which caused heavy bleeding and made X faint. X went to the ground but was able later to recover himself and to be able to get up. He also managed to take the plastic ties off his hands and, of course, remove the blindfold. But when he asked if he could leave the defendant said the game was not over yet and he blocked the exit. But X said that the way that the defendant was playing the game could cause him to lose his life.

The defendant at that stage was washing off blood which he had on himself and on the knife, and he also cleared blood from the floor. However, it seems that very soon after this the defendant made a 999 call during which he admitted on the telephone that he had stabbed a friend at his home. X was taken to hospital and he was kept there for six days until after surgery had been performed and X had recovered.

Preliminary findings had revealed that X had sustained three wounds on the left of his neck and there was a further laceration on the back of his neck. One of the wounds appears to have been particularly deep and continued to bleed, which is why surgery was performed.

When the defendant was spoken to by the police he immediately told them that he had kept a folding knife in his pocket ready to stab X because X had stood him up several times when they were supposed to be playing together. The police did recover from the defendant’s address the black eyeshade and a bag of unused cable ties as well as nine used cable ties, which, as I have indicated, were sold that afternoon from a local hardware shop to the defendant.

At the police station the defendant was interviewed and, of course, it was video recorded. He stated that he had known X for about five years with regular contact between them. On the day before the offence, he said that X had left a game they were playing, which seems to have been a very simple game of catch-up, but he became angry because X left without saying that he was going. His mind then turned to why it was that X so often stood him up after they had agreed to meet. The defendant went on to say that on 10 January the defendant had begun to plan a killing game which was targeted at X. He thought of killing X and then dismembering the body with a kitchen knife and so he decided to do what he had seen in films, to tie up X, cover his eyes and kill him.

Now, during the evening, the defendant said X came round to their home. That is the defendant’s home where they had something to eat and during conversation when the defendant asked X why he would sometimes stand him up and why he had suddenly left the game they were playing the day before, X said that he preferred to play by himself. When the defendant heard that he got angry and he told X that they were going to play a game. As the defendant put it when he was speaking to the police, he wanted X to die after he had tied him up and covered his eyes. So that is what happened. He used a folding knife to stab X’s neck. X was obviously feeling the pain because he was crying out, “No, please,” and actually asked the defendant if the defendant was using a knife. But the defendant continued to cut X until X fell to the ground and he was screaming. He thought that he had stabbed X five times and that if X lost too much blood he was just going to let him die. Originally he said he thought that one stab wound would have been enough to kill X. It seems that when X recovered himself he had, according to the defendant, wanted to grab a pair of scissors which were nearby to defend himself. But the defendant saw blood everywhere and started to get scared. He then told X that he did not want to play the game anymore. It was then that 999 was dialled.

The police seized not only the scissors to which the defendant had referred in his interview but there was also a hammer from the defendant’s room. He was asked about that and he said that he thought he would use it, he did not use it, as it turns out, but he thought he would to hit X’s head. He also in the same interview had spoken about a rather special feeling he had for X which was like a brotherhood.

Now, there is contained in the papers in front of me a victim impact statement from a clinical psychologist. It is clear that the trauma of this event has had a long-lasting effect on X. In fact, whilst he was being interviewed X’s stress and tension was visible as he tried to explain his experience. Whilst some of his traumatic symptoms had subsided after the one and a half years that had elapsed before this impact statement was taken, he still mistrusted personal relationships with others and he had a general fear of ever again running into the defendant. X’s mother also reported that her son had originally had nightmares, loss of appetite, loss of interest in many things that he used to do, but she felt that he had gradually recovered as time went by.

The other side of the coin is that there are four principal factors in mitigation which Mr Lee has very carefully explained, both in court today and in written material before me, for which I am grateful. First of all, of course, the defendant from the outset has admitted his involvement in this and has pleaded guilty at an early stage of the proceedings. Secondly, it was the defendant himself who informed the police of what he had done by phoning 999. Thirdly, without the defendant’s admission that it was his intention to kill X, the prosecution would have found it difficult to prove attempted murder. Instead, they might well have had to produce evidence only of wounding with intent. The fourth matter is that the defendant himself, which probably accounts for his friendship with X, was himself a rather childlike individual.

Two psychiatric reports, which are referred to in the report of Dr Hung obtained by the defence, indicate that the defendant has no psychiatric disorder as such. Dr Hung on behalf of the defence wrote a report in which he refers not only to the reports of the Siu Lam psychiatrists but to the fact that he had “suspicions”, and that is a word that I quote, he has suspicions that the defendant may suffer from mild intellectual disability. But he went on to recommend that the defendant should be given a hospital order at Siu Lam not for any psychiatric reason but for the protection of the defendant and for his rehabilitation. He recommended this, I should say the report was dated 8 May 2019, because he said and I want to just quote from the report at this stage:

“There is an increased risk of conflicts, bullying and exploitation by inmates if he is placed in a regular prison setting. Prison staff may have difficulty in dealing with his behaviour due to a lack of understanding of the needs of patients with mild intellectual disability.”

Perhaps it needs to be emphasised, therefore, that there is no firm diagnosis of mild intellectual disability, however, it is apparent, and I accept, from Dr Hung’s report that the defendant has difficulty in regulating his anger in particular.

Now, whilst it is quite clear that a hospital order is not appropriate to a case like this, and while a custodial sentence is inevitable for a case as serious as this, I will ask that a copy of Dr Hung’s report should accompany other records which go to the custodial institution where the defendant is kept, together with a transcript of my sentencing remarks when that has been prepared. The correctional services are very well-placed to decide where the defendant should be kept with all the information that they will have at their disposal.

Now, plainly, sentencing in a case such as this is not easy. The defendant’s remorse is plain, but equally, his attack on X was dreadful when one considers the extent of his anger over a matter of such relative triviality. That part of this case is very disturbing. The defendant must have realised that X was of low intellectual ability. Equally, of course, the defendant himself was not very bright, as revealed by Dr Hung’s report where he speaks of the defendant’s poor academic and work record. As I said, it is probably the common factor that enabled these two unusual men to stay friends for so long.

Now, I have been supplied with a number of case judgments from the Court of Appeal and they are helpful to one extent. In the case of HKSAR v Yip Chu Sum, which was Criminal Appeal 367 of 2001, where the Court of Appeal compared the facts in that case with those of five other cases which had come before the court. All of those cases were of a more serious nature than the present, but they serve a purpose in that the starting points for sentence which were chosen in those cases are plainly not appropriate here. There is no guideline for offences of this kind. Plainly the main gravamen of the offence is that the perpetrator actually intended to kill his victim, not merely to wound him. In his own letter to me from the defendant I can quote these words:

“When I started to study in secondary school I lost my interest in study and my mind was only filled up with games playing, comics reading, truanting, etc. The games I played tend to be in category 3; bloody, violent, horror, exciting, etc. They made me become more violent and have a desire in blood. As such, it led me to wondering what it is like to kill a person.”

The defendant’s cousin, who has also very kindly written, I think takes the same view. She refers in her letter to the defendant having no friends and then I quote:

“He could only play computer games to spend his spare time. Because he played such violent and bloody games, his mind-set was unconsciously twisted.”

Bearing in mind all of the factors for and against this defendant, I propose to say that I think a case of this seriousness cannot be met with a starting point after trial of less than nine years’ imprisonment. The defendant, however, receives full credit for his early plea and mitigation.

Mr Chow, would you please stand. What you did to your victim was a terrible, terrible thing to do. You have obviously got a very bad temper and it is a temper which has been made worse by these ghastly films you have been watching all these years. You have pleaded guilty and so your sentence will receive the usual credit that everyone who pleads guilty in good time receives. You must go to prison for six years. That is all. Thank you.