HKSAR v. LAM FUNG YI

DCCC 97/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 97 OF 2013

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 charges of "Theft" (Charges 1 and 3), 1 charge of "Wounding with intent" (Charge 2) and 1 charge of "Possession of an offensive weapon in a public place" (Charge 4).

Summary of Facts

Charges 1 & 2

2. About 7:15 pm on 10 October 2012, Madam HUI (PW1), a passerby, saw the defendant taking a bottle of body wash from Colourmix situated at 2^nd Floor, Sunshine City Plaza, Ma On Shan, and leaving the shop without making payment.  PW1 promptly informed a shop assistant Madam CO (PW2) and pointed out the defendant to her.

3. PW2 followed the defendant and intercepted her near the Sunshine City Plaza Phase 3 footbridge.  The defendant pulled out a 7-inch long cutter blade, wounded PW2 on her neck and arm and then fled.

4. PW2 was sent to the hospital.  She received 6 stitches on her upper chest (near the collar bone).  She sustained the following injuries :-

(i) superficial lacerations (about 6 cm and 3 cm in length respectively) on her neck and upper chest; and

(ii) very superficial wound (about 2 cm long) on her left arm.

5. With the aid of CCTV footage, on 11 October, WPC 10939 (PW3) spotted the defendant outside On Shing Street Garden, Ma On Shan. She was carrying the same bags which she carried at the time of the offences. PW3 arrested the defendant.

Charges 3 & 4

6. Upon search, a cutter blade with its handle wrapped by masking tape (Exhibit 4), a chopper, a pair of scissors and 3 bottles of body wash (Exhibit 7) were found in the defendant's possession.  Under caution, the defendant admitted having stolen Exhibit 7 from Sa Sa Cosmetic Company ("Sa Sa").

7. Later, a shop assistant of Sa Sa situated at 2^nd Floor, Sunshine City Plaza checked the unique barcodes of Exhibit 7 against the store computer.  She confirmed that they are properties of Sa Sa which were not yet paid for.

Identification of the Defendant

8. An identification parade was arranged to be held on 24 October 2012.  The defendant, however, was found by a psychiatrist to be unfit and unsuitable to take part in it.

9. The Police instead conducted a photographic identification on 19 November 2012.  PW2 positively identified the defendant. She also identified E4 as the weapon which the defendant had used to injure her.

Mitigation and Sentence

10. The defendant is now 39.  She has 1 conviction record, which is "Theft" and appears to have taken place after the present offences.  She is single and resides alone in her self-owned flat.

11. Defence counsel Mr. CHONG informed the court that the defendant is an Enrolled Nurse.  She used to work in a government hospital earning $26,000 per month.  However, after suffering from mental illness, she could only work in a nursing home earning $15,000 per month.  Mr. CHONG submitted that for Charge 2, the defendant acted out of panic; her attack on PW2 was not pre-meditated.  Mr. CHONG further submitted that defendant is now remorseful; she needs treatment rather than punishment.

12. Psychiatric reports reveal that the defendant's history of psychiatric illness dates back to 2007 and that she had 3 previous compulsory hospitalizations.  Both psychiatrists take the view that she suffers from schizoaffective disorder.  Although she has recently served a 3-month Hospital Order which was made on 30 January 2013, in view of her poor insight towards her illness and need of treatment, previous history of non-compliance, inability of her family in providing effective supervision, and the significant risks she had caused to herself and others when she was mentally unwell, psychiatrists are of the opinion that a further period of 3 months in-patient treatment is required, so that further monitoring and psycho-education work could be carried out.

13. Charge 2 is the most serious offence in this case. I understand that sentencing of wounding offences is case specific and there is no tariff as such; however, sentences in the range of 3 to 12 years' imprisonment are by no means uncommon.

14. It is plain that defendant is a psychiatric patient who needs professional in-patient treatment.  I am aware of the gravity of Charge 2, but cannot ignore the defendant's need for psychiatric treatment. Although a 3-month Hospital Order may seem to be a short period of incarceration, sentencing her to a prison term cannot meet her needs.

15. If the defendant is sentenced to imprisonment, she will be released into the community at the end of her prison term irrespective of her psychiatric condition.  A Hospital Order, however, carries with it a proviso under section 47(2) of the Mental Health Ordinance (Cap.136), which in effect stipulates that her release will be subject to medical opinion.  This proviso offers a safeguarding mechanism which ensures that the defendant would not be released unless it is safe for her and the community to do so.

16. Based on the reasons stated above, I consider that it is in the community's best interest as well as the defendant's to make a Hospital Order in accordance with the psychiatrists' recommendations.  Hence, for each of the 4 charges, I sentence the defendant to detention under a Hospital Order in Siu Lam Psychiatric Centre for 3 months.  For the avoidance of doubt, the proviso under section 47(2) applies.