COURT: The defendant pleaded guilty to a count of wounding with intent, contrary to Section 17 of the Offence Against Person Ordinance in the committal stage. The particulars of the offence are on 25 January 2023, at No. 169 Ma Tin Tsuen, Yuen Long, unlawfully and maliciously wounded Kwan Chong-yip with intent to do him grievous bodily harm. Following his plea, he is committed to the Court of First Instance for sentence by the learned committal magistrate on 5 September 2024.
He was arrested for the offence on 25 January 2023 and was remanded in jail custody since then. He is currently detained in Siu Lam Psychiatric Centre.
The facts of the case are as follows.
The defendant lived with his family members, including his father, the victim, in a village house at No. 169 Ma Tin Tsuen. The house had three storeys. The defendant and the victim seldom talked to each other.
Around 9.15 in the morning of 25 January 2023, while the victim, who was aged 71 at that time, was doing household chores on the roof of the house, the defendant walked up to the roof, looked at the victim for a few seconds. The defendant then went downstairs without talking to the victim.
Around 10 minutes later, the victim finished with his work and walked downstairs. As the victim reached the 1st floor of the house, he saw the defendant standing next to the main metal gate on the ground floor with his hands behind his back.
The victim ignored the defendant and tried to push open the gate next to the victim, but the gate was locked. Suddenly, and without uttering a word, the defendant took out a cleaver with a blade of 17-centimetre-long and chopped the victim’s head repeatedly.
The victim fended off with his hands while trying to open the metal gate. The victim yelled for help. The defendant continued to use the cleaver to attack the victim until about a minute later when the victim’s younger brother, who lived next to the house, arrived in front of the metal gate outside the house and demanded the defendant to stop.
The defendant then stopped attacking the victim, and the victim managed to open the metal gate to escape. The defendant walked out of the house and washed the cleaver with water from the hose.
The defendant complied with the demand of the victim’s younger brother to put the cleaver on the ground. Police was called.
During the police’s initial enquiry outside the house, the defendant voluntarily told the police that because the victim had previously framed the defendant as having stolen underwear from neighbours, the relationship was bad between the defendant and the victim.
And by around 9.30 in the morning that day, the defendant fetched the cleaver from the kitchen and chopped the victim after the victim finished the household chores.
Upon arrest and under caution for wounding, the defendant said that the victim kept framing the defendant as having stolen underwear from neighbours. Therefore, the defendant chopped the victim. But the defendant understood that he was wrong.
Meanwhile, after some initial treatment at the scene, the victim was rushed to Tuen Mun Hospital. Medical examination revealed multiple chopped wounds over the victim’s scalp with large amount of bleeding. There were also chopped wounds over his face and left arm.
Upon admission to the hospital, a computer tomography scan of the victim showed multiple sites of scalp bone fractures involving bilateral frontal, right parietal and bilateral occipital bones. There was also a comminuted fracture with depression at right front parietal scalp with small amount of hemicephaly.
There was approximately 7 millimetres in thickness of small amount of extra-atrial hepatoma under the fracture site, and likely trace amount of subarachnoid haemorrhage at bilateral frontal loops along the cortex.
There were also fractures of the right sarcoma lateral and inferior right occipital wall, anterior and posterior right maxillary sinus wall, and a non-displaced fracture of the right hand cervical. X-ray further revealed the fractures of the victim’s left little and middle fingers.
The victim underwent an operation on the same day for the repair of the facial and scalp wounds, and for the repair of the left hand wounds and extensor tendon.
The victim received sutures of the following wounds. A 2 centimetres cut wound at the back of his head, a 5 centimetres cut wound on the top of his head, a 4 centimetres cut wound and two 1 centimetre cut wounds on his forehead, a 1 centimetre cut wound on his right elbow, 2 centimetres cut wounds on his left cheek, two 5 centimetres cut wounds on his right cheek, two 4 centimetres cut wounds on the back of his left hand, and two 4 centimetres cut wounds on his left palm, a 1 centimetre cut wound on his left index finger, and a 1 centimetre cut wound on his left middle finger.
The victim was discharged from hospital on 8 February 2023. As revealed by the defendant during his video-recorded interview with the police on 25 January 2023, the defendant received education up to Secondary 3. The defendant thought that the victim had spread derogatory gossips of him, spied on him, tortured him. Therefore, on 25 January 2023, the defendant fetched a cleaver from the kitchen of the house and chopped the victim. The attack lasted for one to two minutes, and it caused the victim to bleed. The defendant felt remorseful for chopping the victim out of impulse and asked the police for a chance.
The defendant was born on 6 May 1995 and studied up to Form 3. He used to be an air conditioner technician but was unemployed at the time of the offence. He had two previous convictions for violent offence, common assault and wounding or inflicting grevious bodily harm, contrary to Section 19 of the Offence Against Person Ordinance. Both convictions were in 2011.
He was diagnosed with Attention Deficit Hyperactivity Disorder. He was brought to Tuen Mun Magistracy after his arrest and the learned magistrate called for psychiatric reports on the defendant. Both reports are in February 2023.
The first report is from Dr Wong, who is a visiting psychiatrist of the Siu Lam Psychiatric Centre. According to the report, he was born locally with normal developmental milestones. However, he was documented to have dyslexia. The report also revealed the defendant first used methamphetamine in 2017. It was also reported he is a regular user of cocaine and cannabis in 2018.
The defendant was first known to mental health services at the age of 8. He was diagnosed with Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder. He was given psychiatric medications with partial improvement. He was being followed up until he was 16. According to the report dated in February 2023, his mental state examination revealed he had fixed persecutory delusion. He had experienced auditory hallucinations in second-person and third-person nature. Moreover, he had very limited insight.
The doctor is of the opinion that the defendant suffers from schizophrenia as evidenced by the persistent, bizarre persecutory delusions, auditory hallucinations and functional decline. He also had a history of poorly substance abuse. He had poor insight into his mental illnesses. Doctors say in view of the high violent risk and being active psychotic, in-patient psychiatric treatment is deemed necessary for treating his mental illness.
The other report in February 2023, is from Dr Liu, who is also a visiting psychiatrist of Siu Lam Psychiatric Centre. So far as the background, etc, it is the same as Dr Wong’s report.
According to Dr Liu, marked persecutory delusions was identified. In her opinion, Kwan, the defendant, is diagnosed as suffering from paranoid schizophrenia. He manifests prominent psychotic features of persecutory delusions and auditory hallucinations. He is regarded to be a very dangerous person under psychotic influence. He remains actively psychotic during his current remand at Siu Lam Psychiatric Centre. He has been labelled as an intensive care case under the special care system of the mental health services.
In the future, the doctors say, defendant will be given intensive psychiatric treatment at the hospital and out-patient settings. It is recommended a period of in-patient psychiatric treatment is warranted.
As I said, these two are the reports called by the learned magistrate. And no doubt, because of these reports, he was remanded in custody since his arrest in Siu Lam Psychiatric Centre.
Having received treatment in the Siu Lam Psychiatric Centre for quite some time, solicitors acting for the defendant asked for an updated medical report of the defendant.
This time, the report is made by Dr Tsang, another visiting psychiatrist of Siu Lam Psychiatric Centre. The report is dated 22 April 2024.
Dr Tsang, first of all, talked about the progress of the defendant in Siu Lam Psychiatric Centre. According to Dr Tsang, the defendant’s condition was deemed treatment resistant, and a second-generation anti-psychotics were used. Although the auditory hallucinations disappeared, however, his persecutory delusions persisted.
Dr Tsang carried out a mental state examination in April 2024, and he found the defendant had fixed persecutory delusions towards his father and a Mr Chan, who is a neighbour. In his opinion, he said defendant suffers from treatment-resistant schizophrenia.
He also had a history of poorly substance abuse. There is some improvement with psychiatric treatment, but he is still psychotic. He has poor insight in his mental illness. Given the high violent risk and being actively psychotic, Dr Tsang’s opinion that further in-patient psychiatric treatment is deemed necessary for treating his mental illness.
When you last appeared before me in January this year, I called for more update reports from the Siu Lam Psychiatric Centre. I have those reports for me now.
One of the reports is from Dr Liu, who had treated you before in Siu Lam Psychiatric Centre. In her report, she reported that you started to drink in 2015, and typically you drink a few cans of beer per week. You start using cannabis on and off from 2015, and you switch to use methamphetamine regularly from 2017, and typically you use 1.75 grammes of methamphetamine thrice per week.
From 2018, you add cocaine to the use, and typically you use around HK$3,000 worth of cocaine thrice per week. The intoxication effect is referential ideations, excitement and increased talkativeness.
It is said that you continue with this pattern until three weeks before the date of the offence. Same as in her last report, she said you were known to mental health service at the age of 8, because you were diagnosed with ADHD and Oppositional Defiant Disorder, ODD. You were given psychiatric medications and the follow-up continued until 2011, when you were 16. Coincidentally, your two convictions were in the year of 2011, when you stopped receiving follow-up treatment.
According to your mother, she observed deterioration in your mental condition for two to three years, presenting with self-muttering, paranoid ideas of being eavesdropped by father, poor self-care, social withdrawal, irritability and aggression against the father and sister.
She then talked about your progress in the Siu Lam Psychiatric Centre since your remand. She said you have been remanded at Siu Lam Psychiatric Centre since January 2023. You are diagnosed as suffering from paranoid schizophrenia in view of the persisting psychotic symptoms. Symptoms of persecutory and referential delusions as well as auditory hallucinations are observed.
You have been treated with anti-psychotic medication since remand. However, the response is far from satisfactory. You are a case of treatment-resistant schizophrenia. With a second stage treatment, some improvement, however, you still presented with persistent psychotic symptoms.
You continue to believe Mr Chan, that is the neighbour, and your father are colluding together to spread rumours of you stealing women underwear. You still delude that they are taking pictures of you through different CCTV.
In her opinion, you are diagnosed as suffering from paranoid schizophrenia. You manifest prominent psychotic features of persecutory delusions and auditory hallucinations. The psychotic illness had likely remained untreated for a few years until the time of the offence.
In her opinion, you are regarded to be a very dangerous person under psychotic influence. You have been labelled as an intensive care case under the special care system for the mental health service. She said, despite aggressive treatment at Siu Lam Psychiatric Centre, including treatment with medication of choice for treatment-resistant, you remain actively psychotic at Siu Lam. The prognosis of your illness is considered to be poor, and a relatively long period of in-patient psychiatric treatment is likely necessary before the risk of violence could be lowered. Finally, she recommends a hospital order under Section 45 of the Mental Health Ordinance for an unspecified period.
The other report is from Dr Tsang, who has seen you before in Siu Lam. In his opinion, your diagnosis with schizophrenia continues as evidenced by your bizarre and persecutory delusions. These are fixed beliefs in your mind that are not amenable to change in light of conflicting evidence. You also have hallucinations, perception-like experiences that occur without an external stimulus, as well as deterioration in functioning. Moreover, he said you have limited insight into your mental illness.
He considered that your violence risk is considered to be very high, and the prognosis is guarded. Further prolonged in-patient psychiatric treatment is likely to be necessary for the improvement of your mental condition and to reduce the risk of violence. Likewise, he recommends a hospital order for an unspecified period under Section 45 of the Mental Health Ordinance.
I have read your letter, written by you to your father, expressing remorse. I have also read, I should say, some greeting cards to me, which had nothing to do with the case.
In HKSAR v Chiu Yu To [2001] 3 HKC 186, the Court of Appeal had this to say:
“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.”
The court had said the general tenor of the court’s approach to this aspect of sentencing has been summarised in an article entitled ‘Sentencing the Mentally Disturbed Offender’ [1965] Crim LR 685.
The author of the article said, 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 whenever possible, although there is some reluctance to do so where the offence concerned is not in the most serious category.
This paragraph in the article is approved by the Court of Appeal in Chiu Yu To. In other words, guided by the authority, though I understand he wants to be sent to prison, but sentence to a term of imprisonment should only be used where a hospital order is not suitable. The offence which you have committed, I would say, is in the most serious category of wounding 17. In particular, the victim is of advanced age.
A hospital order is for the protection of the public as well as it is in your interest. An order of committal for an indefinite period may be unavoidable if the offender is without doubt gravely ill and poses a threat to members of the public. See the case of HKSAR v Poon Suet Ming [2000] HKEC 1357.
In the case of HKSAR v Lin Jun [2012] HKEC 1421, Robert CJ 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 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.”
It can be seen from the two reports prepared this year. The two doctors are of the view that you are very seriously ill. They have no confidence and cannot say with any degree of certainty how long will it take to treat you so that you will not remain at risk of violence.
In view of the recommendation and what they say in the report, despite you want a fixed term and you want to serve the term in prison, I think in the circumstances of this case, it is only appropriate for me to make a hospital order for an unspecified period under Section 45 of the Mental Health Ordinance.
I make the order that you be detained in the Psychiatric Centre of the Correctional Services Department.