HKSAR v. LEE YIN WAI

CACC 632/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 632 OF 1998

(ON APPEAL FROM HCCC 130 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 26 November 1998, the Applicant pleaded guilty before Beeson J to manslaughter on the ground of diminished responsibility. His plea of not guilty to murder was accepted by the prosecution in the light of the psychiatric evidence that had been placed before the court. Sentence was then adjourned until 10 December 1998 when the judge imposed a sentence of life imprisonment. However, by oversight, the judge failed to comply with the provisions of section 67B of the Criminal Procedure Ordinance, Cap. 221 which states:

"(1) When imposing a discretionary life sentence on a person for an offence, the judge must specify as part of the sentence a minimum term that the person must serve for the offence.

(2) If, when imposing an indeterminate sentence of imprisonment on a person for an offence, the judge is of the opinion that there are matters relating to the person or the offence which should be recorded for the purpose of reviewing the sentence in the future, the judge must make a report in writing to the Chief Executive specifying those matters."

2. In the result, the judge caused the case to be re-listed on 14 December 1998 when she imposed a minimum sentence to be served of twelve years' imprisonment. On that occasion, the judge had this to say:

"I have considered that the minimum term that this defendant should serve is a period of 12 years. That takes into account the punitive element relative to the offence. At the end of that period, depending on the accused's behaviour or his psychological or psychiatric state, consideration can be given to releasing him on licence, in whole or in part, or considering questions of parole, and that's a matter for the Long-term Prison Sentences Review Board to deal with.

But in terms of this offence, the minimum term that must be served is 12 years' imprisonment, and as is the usual practice, a report will be provided to the Chief Executive in respect of the sentence generally, setting out specific matters relating to the person, or the offence, which need to be recorded for the purpose of reviewing the sentence in the future. And as I understand the procedure, counsel at a particular time has the right to consider the matters raised in that report."

3. The Applicant now applies for leave to appeal against his sentence out of time. His reason for being out of time is shown in his affirmation to have been because his original application erroneously related to conviction only. On this aspect, the Applicant plainly made a mistake as he had never contested the charge in the first place. The mistake was then corrected and became technically out of time. Very properly, no issue was taken by Mr Albert Wong, on the Respondent's behalf and, as we indicated during the course of the hearing, we were prepared to proceed by granting leave to hear the application out of time.

Prosecution case

4. The facts relating to the offence were very straightforward. On 24 December 1997, the Applicant was caught in the act of strangling the victim with a piece of string by his younger sister who had let herself into the premises where the offence was taking place. The premises were the flat belonging to the mother of the Applicant.

5. The Applicant and the victim had been lovers but since October 1997 they had lived their lives generally apart. The Applicant's sister informed others in the family by telephone about the event she had observed. Sadly, by the time the victim arrived at hospital, she was found to be dead on arrival.

6. The Applicant admitted his offence to police who attended the scene. He spoke of the victim coming back to his mother's flat during the course of the afternoon. He said he had begged her not to leave him, but she had refused to comply with his wishes. He said he then became very emotional and clutched the victim's neck and then strangled her with string. He gave detailed admissions to the same effect when later interviewed at the police station. When he was charged he said: "I feel that this time I killed her in a fit of rage. I am very remorseful. Nothing more."

7. The post mortem confirmed the cause of death was pressure on the neck. The victim was only 17. By the time the Applicant was convicted of manslaughter on his own plea, he was 18 years old. He had one other recorded conviction, which was for assault occasioning actual bodily harm, for which he had been ordered to be detained in a training centre.

Grounds of appeal

8. The Applicant's grounds of appeal are set out in three paragraphs, but they amount to a complaint that the sentence was unfair and excessive.

9. Mr Peter Duncan, who now appears on the Applicant's behalf, has not submitted that the sentence of life imprisonment is open to any criticism on the facts of this case, but he does suggest that the minimum term to be served of twelve years was too long bearing in mind that there is now a possibility that the Applicant may respond to medical treatment in under twelve years. He invited the court to have regard to some hopeful signs of improvement, some of which are expressed in the more recent medical reports about the Applicant. These deal with the Applicant's condition, after sentence was imposed, which has been significantly affected by a suicide attempt which has left the Applicant in a brain-damaged state. It will be necessary to deal with this aspect later in the judgment.

10. As a secondary point, Mr Duncan also submitted that the judge, in imposing a minimum sentence of twelve years, seemed only to have considered the "punitive element relative to this offence", as the judge expressed it, without taking into account other aspects of the mitigation which might have reduced this sentence to a lesser term. As examples of these features, Mr Duncan suggested that the Applicant's plea, his age and his significant degree of mental impairment should have been given consideration, bearing in mind that the risk factor posed by the Applicant as a potential danger to society had already been taken into account in the imposition of a life sentence.

Sentencing judge's approach to the imposition of a discretionary life sentence

11. It is clear that the judge had taken the greatest care before determining that this was a case where it was proper to impose a life sentence. She had not merely read the reports of two psychiatrists, Dr. Chung See-yuen and Dr. F.S. Ng, but she had also decided to hear oral evidence from them before she was prepared to indicate whether it was appropriate for the prosecution to accept the plea of guilty which had been tendered to manslaughter. Furthermore, the judge ordered fresh psychiatric reports prior to passing sentence. In regard to all of the reports with which she had been provided, she said:

"The report by Dr Chung See-yuen, prepared on the instructions of the Director of Legal Aid prior to trial, concluded that the Defendant was suffering from an adjustment disorder with depressive mood at the time of the alleged offence. This was described as a mental disorder characterised by the development of emotional and behavioural symptoms in response to identifiable stressors. He noted that the Defendant had been seeing a psychiatrist, but that psychiatric management had not alleviated his condition.

Dr Ng, the psychiatrist at Siu Lam Psychiatric Center generally concurred with the diagnosis and stated, 'In view of his enduring personality difficulties and repeated aggressive acts, the long term prognosis is not favourable. He might benefit from psychological counselling.' That report is dated 19 November 1998.

On 3 December, prior to sentence, Dr Ng did a follow-up report. At paragraph 2 he stated, 'Lee is diagnosed to be suffering from personality disorder. It comprises deeply ingrained, enduring behaviour patterns, manifesting itself as inflexible response to a broad range of personal and social situations. His personality characteristics include low frustration tolerance with marked liability to outbursts of anger and violence, marked impulsivity, callous unconcern towards others, disregard for social norms and rules, and failure to learn from adverse experience. He has demonstrated aggressive acts repeatedly in the past. Indeed, during the present remand at Siu Lam Psychiatric Centre, he was involved in an assaultive offence. Such behaviour patterns tend to be stable, and it will take a long time for his behaviours to get 'more mature'. The long-term prognosis is not favourable. Psychological treatment, which aims to educate him about the technique of anger management is sometimes useful to decrease his impulsivity and irritability. However, it will take a long time to have some positive change and he needs to be highly motivated. This kind of psychological treatment can be provided on an outpatient basis. If he is given a prison sentence, this can be provided by the clinical psychologist of the correctional institution. Compulsory in-patient treatment is considered not necessary.'

The other psychiatrist, Dr C H Yuen, who is a visiting consultant psychiatrist to Siu Lam Psychiatric Centre, made a report on 5 December 1998 prior to sentence. Having reviewed the previous history, he gave as his opinion at paragraph 15, 'There is no doubt that this defendant is having serious personality problems. He is not only anti-social but is also emotionally unstable. Transient psychotic state (such as the emergence of hallucination as in this case) for people with this sort of personality disorder is not uncommon. It could make the prognosis worse. Judging from the long duration of his personality difficulties (for over 10 years), his repeated use of violence, marked impulsivity, absence of true insight and remorse, the lack of empathy, the risk that he would act dangerously to others and to himself should remain high in the years to come.'

There was no recommendation by either of those psychiatrists that the Defendant was a suitable candidate for treatment under a Hospital Order."

12. Those sentencing remarks, which were made on 10 December 1998, summarised the reports given by the psychiatrists which set out a prognosis that was generally pessimistic as to the Applicant's future. In addition, the judge had the advantage of the detention centre, training centre, probation and Young Offender Assessment Panel reports which had been prepared in relation to the assault offence mentioned earlier. This offence had in fact occurred whilst the Applicant, as the judge pointed out in her sentencing remarks, was on remand for this offence. Again, the reports enabled the judge to summarise the Applicant's general background as having been a violent one and, at page 49F, the judge continued in her sentencing remarks by saying:

"In early schoolhood, he was violent with other pupils, later at school he fought with teachers. When he went to work he was unable to hold a job for any length of time without becoming involved in physical disputes with his workmates. There were repeated beatings of his mother and also his sister, and on one occasion he took to his father with a melon knife when he came to visit him.

On at least one occasion his mother was rendered unconscious by his assault; as a result she and the Defendant's sister lived in fear of the Defendant, particularly as his personality traits were exacerbated at times by over-indulgence in alcohol as well as 'soft' drugs and 'Ice'.

Eventually in 1996, the Defendant was referred to the Prince of Wales Psychiatric Unit but he did not attend regular follow-up there and apparently refused to take his medication unless his mother paid him $100 a day. The Training Centre report in respect of the Assault Occasioning Actual Bodily Harm offence indicated that it was his assaults on the victim girlfriend which caused her to leave him in the first place.

There was at least one previous strangling incident, or attempted strangling incident, involving the mother. The Defendant's mother revealed to the interviewing officer, that she was on the verge of a nervous breakdown because of Defendant's behaviour and that Defendant's 13-year-old sister was receiving psychiatric treatment because of prolonged stress."

13. The judge concluded her remarks at page 50P by saying:

"I think this case comes into the category of the situation where the Defendant constitutes a danger to the public for an unpredictable period of time. I am aware that it is important that judges do not devolve their sentencing responsibilities to Correctional Services psychiatrists or the Long-term Prison Sentences Review Board, but given the psychiatric history of this Defendant, the uncertain prognosis, and his aggressive behaviour, I am unable to gauge a length of sentence that would ensure that when he is released it is at a time when he is no longer a danger to others.

I acknowledge that a sentence of life imprisonment is a severe sentence to consider in view of the Defendant's age. However, the facts of the case and the personal circumstances pertaining to the Defendant satisfy the criteria for such a sentence as set out in R v Hodgson (1968) 52 Cr.App.R 113, criteria which were approved in the Hong Kong case of R v FONG Lung-fai (1968) HKLR at 249.

The matters to be considered are first whether the offence is of a type grave enough to require a very long sentence, which this offence is. Secondly, where it appears from the nature of the offence or, from the accused's history, that he is a person of unstable character likely to commit such offences in the future. I think there is a high risk of that happening.

Thirdly, if (further) offences are committed, the consequences to others may be especially injurious as in the case of sexual offences or, as here, crimes of violence. It is clear that all those criteria are satisfied by this case."

14. We are satisfied that the judge had properly considered all the salient issues which had arisen in this case and in its background so far as they concerned the appropriate sentence to be passed. We have no doubt that the seriousness of the offence, in the light of the Applicant's alarming psychiatric background, fully justified the judge in having imposed the sentence of life imprisonment. As we have said already, no criticism, very properly, has been made of this by Mr Duncan.

Approach to minimum sentence to be served

15. The judge had to consider, first and foremost, when imposing a minimum sentence to be served, the gravity of the offence. Mr Wong has very helpfully provided us with a number of English authorities dealing with the approach which is adopted in that jurisdiction for determining a minimum sentence to be served. We have found these to have been of limited value and assistance as the statutory regime in England differs from the position in Hong Kong.

16. There can be no doubt that this was a dreadful offence and there were few mitigating circumstances which could have affected the outcome. So far as the plea of guilty in particular was concerned, we would adopt the approach which was taken in R v Lee Sau-ping CACC 189/1995 (also a manslaughter case) where P. Chan J (as he then was), in delivering the judgment of the court, said this:

"Counsel said that the learned judge did not adopt any starting point and had failed to give sufficient discount for the plea of guilty. It is true that the learned judge did not see fit to indicate any starting point or how much discount was to be given for the plea. This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide-range of sentence, from probation to life imprisonment. A sentencing judge may well feel having taken an overall view of the matter that all he can finally do is to decide on the appropriate sentence."

Brain damage to the Applicant after sentence imposed

17. When this matter first came before the court, almost nine months ago, we were invited by counsel then appearing for the Applicant to adjourn the application pending further reports. This request was acceded to because we were informed that the Applicant, after sentence had been passed, had made an attempt on his own life which appeared to have left him with a marked degree of brain damage.

18. We have now been given a medical report from Dr Chung Chi-ping dated 2 December 1999 which confirms that the Applicant has suffered considerable brain damage. The report is in these terms:

"Mr Lee was transferred from Tuen Mun Hospital on 27/7/99 to our custodial ward (i.e. Queen Elizabeth Hospital) for hypoxic brain damage after hanging in the cell in Siu Lam Hospital on 15/7/99. On transfer, he breathed spontaneously but his mentality remained slow. He was fed via nasogastric tube and assisted with oxygen mask

On physical examination, his general condition was poor and not communicable. He had no speech, with wandering right eye only. His muscle tone was increased generally, and his muscle power was normal. All these features were compatible with hypoxic brain damage.

He was treated with antibiotic and continued with physiotherapy, occupational therapy, and speech therapy.

He had slow progress in our ward with improvement in speech, oral feeding, and communication. He was assessed by psychiatrist and clinical psychologist. He was labelled to be post hypoxic brain damage, no psychiatric problem otherwise. And he was assessed to be mentally fit for transfer to Siu Lam Psychiatric Centre.

In conclusion, Mr. Lee had made significant improvement from his hypoxic brain damage. Further improvement might be expected while he was in Siu Lam Psychiatric Centre. Hence, a longer interval is needed to comment on any likely consequence on his health."

19. In an updated report provided by Dr F.S. Ng made on 14 October 1999, he reported in these terms:

"I have examined (the Applicant) in Siu Lam Psychiatric Centre. He was last examined by me on 8.10.1999.

Lee is diagnosed to have dissocial personality disorder. His personality characteristics include low frustration tolerance with marked liability to outbursts of anger and violence, marked impulsivity, callous unconcern towards others, disregard for social norms and rules, and failure to learn from adverse experience. He has demonstrated aggressive acts repeatedly in the past. He was given a life sentence on 10.12.98. He was detained in Siu Lam Psychiatric Centre and I have repeatedly seen him. This aimed at provision of counselling on his anger management, as well as adjunctive pharmacological treatment for the control of his irritability and impulsivity. On 14.7.1999, he hanged himself with loss of consciousness. He was sent to Queen Elizabeth Hospital and he only returned to this Centre on 21.9.1999. When I examined him on 22.9.1999, he looked much thinner than before. He was chair-bound. He had mild resting tremor of both hands. He recognized me but he failed to tell my surname. He spoke softly, with a bit unclear articulation. There was no psychotic feature elicited. He was unable to tell me the date but he was aware of the name of the place he was being detained. Recent mental state examination on 8.10.1999 showed him to look stronger. He was able to walk independently, though not very steadily. He was able to tell my surname correctly. He spoke with a louder volume with mild stuttering. His speech was relevant and coherent. A mini-mental state examination (a screening test for cognitive function) showed a score of 21 out of 30. This suggests certain impairment of his cognitive function.

Opinion: Lee has been diagnosed to have dissocial personality disorder. The serious suicidal attempt is indeed a reflection of his impulsive character. He has loss of consciousness as a result of hanging and he required intensive medical treatment for over two months. It is likely that he has suffered from certain degree of brain damage (this is supported by the observed cognitive impairment). At this stage, he is still recovering from the brain insult and it appears that he is improving both physically and mentally. It is difficult to be certain the extent of effect of the brain insult on his personality, as he seems to be continuously improving. At this juncture, he appears to be a more docile person with certain degree of cognitive impairment. Further psychiatric assessment and observation is required to know the extent of his progress or deterioration."

Conclusion

20. We have given very anxious consideration to the events which have overtaken the Applicant since sentence was passed. Having done so, and having taken the powerful submissions made by Mr Duncan into account, we nevertheless do not consider that we would be justified in interfering with the minimum sentence which was imposed.

21. Accordingly, leave to appeal is refused and the application must be dismissed.