HKSAR v. CHOI WAN YING

DCCC 170/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.170 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of wounding with intent. Particulars of the charge are that she on 8^th December 2012 at McDonald’s restaurant in Sau Mau Ping Shopping Centre unlawfully and maliciously wounded one Leung Kwok Hoi with intent to do him grievous bodily harm.

Summary of Facts

2.  The defendant, the victim Mr. Leung and his wife live in the same neighbourhood in Sau Mau Ping Estate. They have known each other for 7 to 8 years.

3.  On the charge date at 2:55am, when Mr. Leung was queuing up in front of a counter at McDonald’s restaurant on the ground floor of Sau Mau Ping Shopping Centre, the defendant approached him from behind, took out a chopper from the bag she was carrying and chopped Mr. Leung twice on his neck.

4.  Mr. Leung managed to dodge when the defendant attempted to attack him again. The defendant then left the restaurant and boarded a taxi. The taxi driver Mr. Wong saw that the defendant was holding a chopper and speaking incoherently. Fearing for his own safety, he drove to Sau Mau Ping Police station and went inside to make a report. The defendant had left the taxi by the time the Police got there.

5.  The defendant, still holding the chopper, returned to Sau Yat House, Sau Mau Ping Estate at 3:10am. She left the building again at 3:48am without the chopper.

6.  At 3:50am, the defendant returned to the restaurant where the attack took place and was arrested for wounding by Police officers there. A chopper was seized from the defendant’s residence at 5:38am.

7.  Mr. Leung was admitted to hospital and was found to have sustained a 10cm laceration with oozing over posterior of neck and received 13 stitches. There is no evidence of the injuries resulting in any permanent disability.

Previous Convictions

8.  The defendant has a clear record.

Mitigation

9.  The defendant is 51, educated up to Form 1 level. She is married and lives with her husband who is 62 and works as a casual worker at construction sites. Their 2 daughters are 32 and 26. The elder daughter is married and working as a security guard. The younger daughter plans to get married at the end of this year and she is now working in a boutique.

10.  The defendant has been relying on her husband’s income and Handicap Allowance from the Government.

11.  Since 1975 when the defendant was 14 years old, she had been diagnosed with bipolar affective disorder. She had at least 40 admissions to different psychiatric hospitals for relapses, mostly precipitated by her erratic compliance to medication treatment.

12.  Prior to the commission of the present offence in December 2012, she was admitted to Kowloon Hospital from September to November 2012 for a manic relapse. The defendant’s mental condition deteriorated again a week prior to the offence. She was unable to sleep well and had skipped her medication again after her latest discharge from Kowloon Hospital.

13.  As a result of what was disclosed in mitigation, two psychiatric reports were ordered to be prepared on the defendant. Both Dr. Chow and Dr. Chan recommend further inpatient observation, treatment and rehabilitation for her own and the society’s safety. They recommend a period of supervision for 6 months.

14.  This court’s power to make a hospital order is governed by section 45(1) of the Mental Health Ordinance, Cap.136, which empowers the court to make a hospital order where:

"(b) the court…is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46 that -

(i) such person is a mentally disordered person; and

(ii) the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment; and

(c) the court…is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of such person, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section, ...."

Sentence

15.  The maximum sentence for wounding under s.17(a) of the Offences Against the Person Ordinance, Cap.212 is that of life imprisonment.

16.  There is no sentencing tariff for this offence and each case is dependent on its own circumstances. However, the usual range will be between 3 to 12 years’ imprisonment[1].

17.  The one unusual factor in the defendant’s case is that she has been diagnosed as suffering from “Bipolar Affective Disorder, manic episode with paranoid idea”.

18.  It is Dr. Chow’s opinion that “the defendant’s judgment and behaviour at the time of the commission of the offence was impaired by her relapse of mental illness and paranoid symptoms”, and that “the insight of the defendant remains poor and she is only in the early stage of remission, further inpatient observation, treatment and rehabilitation is necessary for the sake of her own mental health and safety of the society.”

19.  In HKSAR v Chiu Yu To [2001] 3 HKC 186, 192; CACC 104/2000 Stuart-Moore VP said at paragraph 24 that, “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.”

20.  Taking into consideration the nature of and circumstances surrounding the present offence, the fact that the defendant has a clear record, that she has been undergoing mental health treatment since her arrest, the dicta of the Court of Appeal in Chiu Yu To about how the law where possible should facilitate treatment of a mentally ill person, and being satisfied on the written evidence of Dr. K.W. Chow and Dr. Oliver Chan that the defendant is a mentally disordered person and the nature or degree of her mental disorder warrants her detention in a psychiatric centre for treatment, I am of the opinion that the most suitable method of disposing of the case is by means of an order under s.45(1) of the Mental Health Ordinance.

21.  Therefore, based on the recommendation of Dr. Chow and Dr. Chan, I exercise my discretion and order that the defendant be detained at Siu Lam Psychiatric Centre for a period of 6 months so that she may be treated for her mental illness and psycho-education work could be done with her. Provision at the Psychiatric Centre has already been made for the defendant, as indicated by Dr. Chow and Dr. Chan in their reports.

[1] HKSAR v Chu Sze Wing, CACC 289/2011