HKSAR v. FUNG SAI KEUNG

DCCC 963/2017

[2018] HKDC 293

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 963 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant Fung Sai Keung pleaded guilty before me to one charge of wounding with intent, contrary to section 17 (a) of the Offences against the Person Ordinance, Cap 212.

Admitted facts

2.  The facts admitted by Mr Fung can be summarised as follows.

3.  Mr Fung and PW1 had been neighbours residing at nearby units in a public housing estate in Tin Shui Wai for about 10 years.

4.  Shortly before 11:20 pm on 27 June 2017, PW1 accompanied by his son knocked on the door of Mr Fung’s unit.

5.  Mr Fung’s daughter answered the door and PW1 complained that Mr Fung had always made noise such that he could not sleep.  Miss Fung closed the door and called her father to return home immediately.

6.  Soon, Mr Fung returned home and met PW1 and his son at the corridor outside his own unit.  A dispute followed.

7.  PW1 argued with Mr Fung while PW1’s son video-recorded the incident with his father’s mobile phone.  Initially, Mr Fung retreated to a corner.  Later, Mr Fung repeatedly pushed PW1 away with increasing force, such that finally PW1 fell on the ground.  Whilst on a ground, PW1 kicked Mr Fung.  Mr Fung then took out his cutter and cut PW1 repeatedly.

8.  Afterwards, Mr Fung returned to his home.  A report was made to the police.

9.  Police officers attended the scene and found PW1 lying and bleeding on the floor with multiple cut wounds.

10.  Mr Fung stepped out from his home when the police were enquiring around. PW1 pointed out Mr Fung as the attacker who attacked him with cutter and keys.

11.  Mr Fung was arrested.  Under caution, Mr Fung said that he defended himself with keys and cutters after being kicked and punched by PW1.

12.  Meanwhile, PW1 passed out due to his severe injury.  PW1 was admitted in the intensive care unit of Tuen Mun Hospital.  He was diagnosed with the following:-

Wounds repaired by orthopaedic surgeons:-

(a) 5 cm wound over his right hand first web space where neurovascular bundles were intact;

(b) Abrasion over right fingertip;

(c) 9 cm wound over his left knee just proximal to the patella, where the patella tendon was intact;

(d) 7 cm wound over left medial forearm, not through fascia. No injury to nerve or vessel;

(e) 6 cm wound over left lateral arm, not through fascia. No injury to nerve or vessel;

Wounds repaired by general surgeons:-

(f) Upper lip 3 cm superficial wound;

(g) Right chin 15 cm superficial wound with multiple laceration at posterior;

(h) Right upper neck 12 cm wound and lower neck 6 cm superficial wound;

(i) Left chin 6 x 15 cm wound deep to mental bone and muscle layer;

(j) Posterior neck 20 cm superficial wound;

(k) Right shoulder 6 cm superficial wound;

(l) Right chest wall 3 cm superficial wound around nipple region;

(m) Epigastric 11 cm superficial wound;

(n) Left side abdomen 22 cm superficial wound;

(o) Left frank (sic: flank) 15 cm wound deep to muscle layer where the fascia was intact;

Wounds repaired by neurosurgeon:-

(p) 10 cm deep chop wound over left parietal region;

(q) 5 cm chop wound over left parietal region;

(r) 8 cm horizontal chop wound over occipital region; and

(s) Multiple other superficial chop wounds.

13.  PW1 was first managed in the intensive care unit and transferred to general ward on the following day ie 28 June 2017.  He was discharged on 5 July 2017.

Criminal record

14.  Mr Fung’s criminal record which is agreed shows that he has two previous non-similar minor convictions in 2003.

Antecedents

15.  Mr Fung’s antecedents statement which is agreed shows that he is aged 64 (63 at the time of the offence) and was educated up to primary 6.  He had worked as a transportation worker.  He had never been to prison.  However, he was diagnosed to have delusional disorder.  Mr Fung is married and lived with his wife and daughter in a public housing estate in Tin Shui Wai.

Mitigation

16.  Mr Luk King Wang of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Fung.  The following is a summary of the submissions.

17.  Mr Fung’s wife is 42 and daughter is 14, a F4 student.  Mr Fung retired 4 years ago and is now relying on public assistance.

18.  It was submitted that delusional disorder was the main cause of this offence although it was emphasized that Mr Fung knew what he was doing.

19.  According to the daughter, she noticed her father had been suffering from mental illness since 2013.  She said her father always complained of noise from the floor underneath when in fact there was none.  As a consequence, Mr Fung would bang on the floor with a rod which caused real noise which resulted in neighbours making complaints.  That led to the security guards and police to come to investigate matters; and because of the noise created by Mr Fung, there were always arguments and quarrels between Mr Fung and the neighbours including the victim in this case.  The victim was living in the opposite unit and the relationship between Mr Fung and the victim turned sour.  On the day of the offence, the victim and his son came to Mr Fung’s flat to make complaint of the noise previously made by Mr Fung.  That time, only Mr Fung’s wife and daughter were at home so the daughter called her father to come back as soon as possible.  Mr Fung was already on his way when he received the phone call but his emotion became unstable because he was concerned about the safety of his wife and daughter.

20.  Mr Fung increased his pace and he met the victim outside their flats.  A heated argument developed into bodily contact between them

21.  Mr Fung knew what he was doing but he said he was provoked verbally and there was bodily contact between them.  Most importantly, Mr Fung was adversely affected by his mental problem during this time by way of an effect on his emotional control and self-control.  It was under such conditions that Mr Fung committed this offence.

22.  Police came and took both persons to Tuen Mun Hospital.  Mr Fung himself suffered from mild injury; but he was diagnosed to have delusional disorder.

23.  According to the hospital, after Mr Fung was taken there, compulsory psychiatric admission was suggested.

24.  After receiving treatment and having been hospitalized in Tuen Mun Hospital, Mr Fung was transferred to Siu Lam Psychiatric Centre where he has been remanded since then.  According to Mr Fung, the doctors at Siu Lam said he was suffering from certain mental problems.  He has been receiving treatment and medication at Siu Lam.

25.  Mr Luk submitted a copy mitigation letter (in Chinese) (later substituted by the original) signed by Mr Fung’s 5 siblings and his wife and daughter.  Basically, the letter urged the court to be lenient towards Mr Fung.

26.  Mr Luk continued to submit that the whole incident was not pre-meditated and that Mr Fung had all along been co-operative with the police.

27.  Now the Housing Department has relocated Mr Fung’s family and therefore chances of re-offence (with the same neighbours) are slight.

28.  Mr Luk invited the court to call for 2 psychiatric reports and submitted that meanwhile Mr Fung can continue his treatment and medication in Siu Lam.

29.  About the origin of the cutter, Mr Luk submitted that at the material time, the cutter was already in the possession of Mr Fung; the reason is that he had it on him for the purpose of cutting paper box for sale to support his living.  About the key that was used in the offence, Mr Luk submitted that it was in fact the home key which was among a bundle of keys; Mr Fung intended to use the key to open the door to his flat.  However, before he could return to his flat, he was intercepted by the victim.

30.  Mr Luk accepted that Mr Fung did attack the victim while the latter was on the ground.

Summary of the psychiatric reports

31.  I have received two psychiatrists’ reports in accordance with section 46 of the Mental Health Ordinance, Cap 136.

32.  Of the two reports, the one by Dr Chow Kit Wan Kavin is the more detailed.  I shall extract parts of it and repeat them below:-

“FUNG was first known to the liaison psychiatrist in June 2015 after he had a quarrel with a neighbour living in the opposite flat. He was then referred to the Tuen Mun Mental Health Centre (TMMHC) for psychiatric treatment since July 2015. FUNG complained that the neighbour living downstairs deliberately poked the ceiling to disturb him for a few years…… FUNG said that the poking made him having back pain, shortness of breath and cough. He has made repeated complaints to the Police, Housing Authority and the District Councillor; and he later believed that they all worked together with his neighbour to act against him…… FUNG said he heard voices from downstairs saying that they would disturb him and his daughter. He then firmly believed that the neighbour disturbed his daughter and they were subsequently convicted with having sex with girl underage [so he believed]. FUNG admitted that he had confronted the neighbour for a few times but he denied previous aggression. FUNG was diagnosed to have delusional disorder…… He attended psychiatric follow-up regularly and alleged having good compliance to medication treatment. FUNG was last seen at TMMHC on 7 June 2017 and he was reported to have systematized persecutory delusion. FUNG was admitted to Castle Peak hospital after he was arrested for the index incident and he was then remanded to Siu Lam Psychiatric Centre since 6 July 2017.”

33.  Mr Fung also told the doctor that he had conflicts with the victim since 2015 and he accused the victim of poking his wall on and off.

34.  As regards opinion and recommendations, Dr Chow said that Mr Fung “suffers from delusional disorder with active paranoid delusion; that medication has been adjusted in the past few months during remand, but limited progress was observed; that in view of Mr Fung’s psychotic state, risk of violence under psychotic influence and limited insight, a compulsory psychiatric in-patient treatment is necessary.”

Further mitigation in light of the psychiatrists’ reports

35.  Mr Luk submitted that the two psychiatrists’ reports were explained to Mr Fung and he agreed the contents.

36.  Mr Luk also invited the court to adopt the recommendation of those reports and impose a Hospital Order on Mr Fung.

37.  Upon enquiry from me, Mr Luk accepts that there is no evidence on the face of the reports to support the submission made on the last occasion that at the time of the offence, Mr Fung’s mental problem affected his emotional control and self-control.

Sentence

38.  I have considered the mitigation submissions including the further mitigation submissions made by Mr Luk.

39.  There are no tariff guidelines for the offence of wounding with intent. Each case will depend on his own facts.

40.  The range of sentences for this type of offence is 3 to 12 years’ imprisonment, but everything would depend heavily on the particular facts of each case (see HKSAR v Tse Hok Lam, CACC 85/2005).

41.  In Attorney General v Lam Yat Sing, CAAR 14/1992, Fuad VP remarked that “everything will depend so heavily on the particular facts of each case”.

42.  In R v Goodwin [1999] 2 Cr App R (S) 128, it was said that all such offences, including those involving the use of excessive force in self-defence, were of great seriousness and would almost inevitably warrant a custodial sentence; the use of a weapon would aggravate the offence; whilst excessive use of force in self-defence was perhaps the least inexcusable example of the offence; even then, a custodial sentence would usually be appropriate.

43.  Provocation and reaction to another’s aggression, though not defences to wounding, may have an impact upon sentence: HKSAR v Yuen Wai Kui, CACC 280/2004.

44.  In HKSAR v Jiang Guohua, CACC 31/2005, Ma CJHC (as he then was), in giving the judgment of the Court of Appeal, emphasized “that in passing sentence regarding a charge such as wounding under section 17 of the Ordinance, the Court … must look at the matter from all angles.  Not only must the circumstances of the offence be looked at (and in a wounding case, the court must have regard to the relationship between the person charged, the victim and any third person), but regard should also be had to the public interest as well.  As to this latter aspect, the need to deter can be a relevant consideration”.

45.  In this case, I note the incident owes its origin to an apparent long-term feud between two neighbours in a public housing estate due to noise generation.  I note also that the incident started off with PW1 paying an unwelcome visit to Mr Fung’s home when he was not there.  However, on Mr Fung’s return, instead of turning to a peaceful settlement, the encounter first developed into a quarrel and later into pushing and kicking with PW1 on the ground. 

46.  Unfortunately for both parties, Mr Fung took out a cutter from his person and used it as well as one or more keys to attack PW1.  All this was uncalled for, I would have thought, because PW1 was already on the ground.  It did from this moment on look like a revenge attack more than either an act in self-defence or in response to provocation (see for example Secretary for Justice v Hau Ping Chuen [2008] 3 HKC 398).

47.  I note that there is a lack of medical support for the submission that Mr Fung’s mental problem affected his emotional control and self-control.  In this light, although I accept he might have had some mental problem round about the general period during which the offence occurred, I do not accept his mental problem had much to do with the commission of the present offence.

48.  The serious features in this case include: Mr Fung was armed whereas PW1 was unarmed throughout; that PW1 was on the ground when Mr Fung attacked him indiscriminately with weapons all over his body; that the parts of the body attacked on included vulnerable parts which if injured to a sufficient degree could result in serious disability.

49.  The fact that PW1 seemed to have recovered after spending only 9 days in hospital is simply a matter of good fortune.  However, it must be borne in mind that it must have been a horrifying experience for him.

50.  After having seen the case photos (altogether 3 volumes), I am confirmed in my belief that this was a vicious and deplorable attack and one which must be deterred.  I remind myself that I must not be overborne by the seriousness of PW1’s injuries as depicted in those photos.

51.  Having looked at the matter from all angles, I am satisfied that if I were to impose an imprisonment sentence, a starting point of 4 ½ years’ imprisonment would have been justified.

52.  Mr Fung indicated a plea of guilty at an early stage and did materialize his plea for which he would have been entitled to the full 1/3 discount.

53.  Because of the initial verbal provocation which started the fight, I would have given an additional small discount of one month.

54.  There would have been no other mitigating factors of sufficient weight to warrant any further discount.

55.  Hence, if I were to impose an imprisonment sentence, the appropriate sentence for Mr Fung would have been 2 years 11 months’ imprisonment.

56.  However, having read the psychiatrists’ reports, I am satisfied that:-

(a) Mr Fung is a mentally disordered person; and

(b) the nature or degree of the mental disorder from which Mr Fung is suffering warrants his detention in a CSD Psychiatric Centre or a mental hospital for treatment.

57.  In considering whether to impose a Hospital Order in lieu of imprisonment, I bear in mind the interests of Mr Fung and the protection of the public.

58.  In HKSAR v Chiu Yu To [2001] 3 HKC 186, 192, Stuart-Moore VP (as he then was) 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.”

59.  I am therefore of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of Mr Fung, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a Hospital Order.

60.  I am further satisfied that arrangements have been made for the admission of Mr Fung to Siu Lam Psychiatric Centre within 28 days from today.

61.  Both psychiatrists recommended detention for a period of 9-12 months.

(Mr Fung, please stand)

62.  In the event, I sentence Mr Fung by imposing on him a Hospital Order made under section 45 of Cap 136, authorizing him to be admitted to and detained in Siu Lam Psychiatric Centre for a period of 12 months.