HKSAR v. CHEN SIU FUNG

DCCC 382/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 382 OF 2015

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REASONS FOR SENTENCE

1.  Chen Siu Fung you have pleaded guilty to one charge of false imprisonment, contrary to Common Law and punishable under section 101I of the Criminal Procedure Ordinance, Chapter 221 (Charge 1) and one charge of wounding contrary to section 19 of the Offences against the Person Ordinance, Chapter 212 (charge 2).

2.  In summary on the 19 February this year after an argument with your family you moved to live temporarily in the home of Mr Wong Kai Ming at Room 1016, Hong Lai House in the Yau Lai Estate.  You had known Mr Wong, who is a paraplegic, since 1996.  

3.  On the 17 March Mr Wong observed that you started having hallucinations and paranoid beliefs.  You accused Mr Wong of having ill intent against you. 

4.  The next day at about noon your ex-girlfriend rang the mobile phone of Mr Wong asking Mr Wong how you were.  About two hours later you asked to borrow Mr Wong’s mobile phone because you thought someone was tracking your phone.  When you discovered your ex-girlfriend had called Mr Wong earlier you suspected they had conspired to harm you.

5.  At about 4:00 p.m. the same day you prevented Mr Wong from leaving his home by using Mr Wong’s wheelchair and a sofa to block the main door.  When Mr Wong asked to leave you refused his request and hit the left side of his face with the handle of a ceramic fruit knife and punched his left eye.  You then pushed Mr Wong on to his bed and threatened him that if he moved you would stab him with the knife.  You continued to question Mr Wong and again used the handle of the knife to hit the head of Mr Wong numerous times.

6.  The following afternoon around 3:00 p.m. you again refused Mr Wong’s request to leave so he could go to buy some cigarettes.  You again used the handle of the knife to hit Mr Wong’s head causing his head to bleed. You then allowed Mr Wong to call a friend to buy the cigarettes for him and deliver them to his home. You however monitored the call so that Mr Wong was unable to tell his friend he was not allowed to leave his home. 

7.  The same day around 8:00 p.m. while you were watching television Mr Wong crawled out from the window of his home and climbed down the drainpipe three floors to the 7th Floor.  The resident of room 716 on seeing Mr Wong climbing down the drainpipe called the police.  Mr Wong waited at the 7th Floor drainpipe for about one hour until he was rescued by the police.

8.  In a cautioned interview you told the police that you believed you were betrayed by Mr Wong and went out of control and used the wheelchair and sofa to block the main door of the flat.  You then took a knife from the kitchen and assaulted Mr Wong with your fists and the handle of the knife.  A photograph showing the knife you used has been submitted to court.   

9.  Mr Wong was detained against his will for over 24 hours.   Medical examination revealed various injuries as particularised in the facts admitted by you, including a laceration to the forehead requiring two stitches.  The injuries are shown in the photographs submitted to court earlier.  I am told that Mr Wong has made a full recovery from his injuries and further photographs taken yesterday have been submitted showing that Mr Wong has made a full recovery. 

10.  In passing sentence I take into account everything said on your behalf by Miss Chan, including that you acted under the influence of psychiatric illness and that you are sorry for what happened.  Before passing sentence I called for psychiatric and psychological reports to learn more about you.  I have carefully considered the content of these reports. 

11.  There are no guidelines in Hong Kong in respect of false imprisonment, each case to be decided on its own facts and circumstances.  As was said in Secretary for Justice v Yiu Man Chun [2011] 3 HKC 125:

“The type of offence with which we are dealing can occur in such a wide variety of circumstances that it will often, though not always, be difficult to come across a previous decision that exactly or even roughly matches the facts of a case under consideration.”

12.  A list of aggravating factors in kidnapping and false imprisonment cases are set out in the sentencing manual published by the Crown Prosecution Service in the United Kingdom, including vulnerability of the victim; duration of the loss of liberty; using, brandishing, threatening with or possession of weapons; other offences committed; unpleasant circumstances of detention, such as degradation and the effect upon the victim. 

13.  In HKSAR v Chan Ka Chun CACC 45/2015, handed down during the adjournment, McWalters JA in refusing leave to appeal against sentence said that little assistance is derived from having recourse to other sentencing decisions for the sentences imposed relate to each case’s specific factual situation, including the presence of a wide variety of aggravating features. 

14.  The offence is a very serious one.  Mr Wong, a paraplegic, was prevented from leaving his home for over 24 hours during which time you assaulted and threatened Mr Wong.  You used the handle of a knife causing Mr Wong’s head to bleed requiring two stitches.  In order to escape Mr Wong crawled out from the window of his home and climbed down the drainpipe three floors where he waited for about an hour to be rescued.  This was a very dangerous act even for an able-bodied person let alone Mr Wong who is paraplegic.  Little imagination is required to understand how Mr Wong must have felt to compel him to escape in this way. 

15.  I am satisfied the proper starting points after trial are 4 years imprisonment for false imprisonment and 12 months imprisonmentfor wounding.  Giving you full credit for your pleas of guilty reduces the sentences to 2 years and 8 months imprisonment and 8 months imprisonment respectively.

Mental disorder

16.  Miss Chan explains that although you knew what you were doing the underlying reason for committing the offences is your psychiatric illness.  The reports detail your psychiatric history.  In summary you were first known to the mental health service in 2005 when you were treated for drug-induced psychosis.  Since that time you have been admitted to both the Kwai Chung Hospital and the Pamela Youde Nethersole Eastern Hospital for drug-induced psychosis.  In late 2014 you were hospitalized for irritated mood, self-muttering, irrelevant speech and aggressive tendency during an argument with a patient (see paragraph 8 of the psychological report).

17.  The clinical psychologist Sherry Im is of the opinion that psychological treatment of substance abuse is essential for reducing re-offending but notes you decline the need for such service. Similarly the psychiatrist Dr Choi is of the opinion that continuous follow-up is required at an outpatient clinic and not inpatient treatment.

18.  In HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was:

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

19.  Chiu Peng, Richard was cited in HKSAR v Chen Xuehui HCCC 19/2012 where the court reduced the sentence imposed after trial where the defendant suffered from Bipolar Affective Disorder and displayed florid symptoms at the time of the offence.  McMahon DHCJ said that in determining whether the illness has affected one’s culpability for the offence requires an assessment of the nature and severity of the illness and an appreciation of the relevance of its symptoms to the commission of the offence. 

20.  Whilst I accept you acted under the influence of psychiatric illness this was self induced by your continuous abuse of drugs.  I cannot also overlook that your criminal record shows you are a person who has a tendency to resort to violence.  You last appeared in court in October 2010 when you received a total sentence of 2 years and 3 months imprisonment for offences of attempted wounding and assault. 

21.  As stated by the clinical psychologist though the offence appeared to be related to your substance-induced psychosis with persecutory belief your poor medication compliance and tendency to resort to violence for solving problems also played a significant role in contributing to the offences (see paragraph 14 of the psychological report).

22.  Whilst sympathetic to anyone suffering from mental illness I am satisfied in the circumstances of this case there should be no discount on account of the fact you were acting under the influence of drug-induced psychosis at the time. 

Totality

23.  In passing sentence on the false imprisonment charge I have taken into account that you assaulted Mr Wong resulting in the wound to his head.  In the circumstances I agree with Miss Chan that concurrent sentences are appropriate. 

24.  You are convicted and sentenced to 2 years and 8 months imprisonment for false imprisonment and 8 months imprisonment for wounding.  The sentences are ordered to be served concurrently.  You go to prison for 2 years and 8 months which I am satisfied properly reflects your criminal culpability on the two charges.