HKSAR v. CHU KA HO

HCCC 24/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 24 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant pleaded not guilty to a charge of murder but guilty to manslaughter by reason of diminished responsibility, and that plea was acceptable to the prosecution.

The deceased was his mother living under the same roof. The defendant was aged 27 at that time. He stabbed her to death in the small hours of the morning and set fire in the flat. Neighbours discovered smoke emerging from the premises and the chopper was found on the ground outside the block where the defendant lived. The defendant was then seen standing on an air-conditioning unit outside his flat, and after a while he announced, “Jesus loves me” and jumped down onto the ground sustaining serious injuries including broken bones in his legs.

Fire and Ambulance Services gained entry into the defendant’s flat and found the extensively burned body of the deceased with signs of serious cutting and chopping trauma. She was certified dead and she was 53 years of age.

Post-mortem examination revealed the cause of death to be “multiple stab and cut wounds” and that the deceased was either very close to or already dead at the time the body incurred the effects of the fire.

Under caution, the defendant claimed to have quarrelled with his mother and accidentally killed her during a scuffle. His deep regrets caused him to jump from a height in an attempt to commit suicide. His urine sample taken later from him showed the presence of amphetamines.

The defendant, who is now aged 29, has two previous records, one of theft and one of trafficking in dangerous drugs and he was sentenced to the Drug Addiction Treatment Centre in 2007.

The defendant claimed to have a history of polysubstance abuse since the age of 13, and upon his discharge from Hei Ling Chau Drug Addiction Treatment Centre, he claimed to be able to keep clear of drugs and worked part-time as a bartender for about 6 years. He resumed taking drugs in October 2013, five months prior to the present incident. He claimed that his resumption to the taking of drugs, mainly ‘Ice’, was because his mother’s health deteriorated. He also claimed to have a muddled mind on this relapse to drugs.

Nonetheless, he did find comfort and consolation in religion and managed to stay clear of drugs between November 2013 to January 2014, but relapsed again in February 2014. But this time he took drugs excessively to avoid thoughts of his mother’s illness and also because both the physical and psychological burden of taking care of his very ill mother was great. He started to harbour paranoid thoughts and thought that he was being prosecuted and that his mother had become a monster.

In the opinion of the two psychiatrists, one each for the defence and prosecution, this defendant has been psychotic since his relapse to drugs, and at the time of the killing he was suffering drug-induced psychosis and such an abnormality of mind that substantially impaired his mental capacity for the death.

However, having been drug-free for about 18 months, he now no longer harboured those thoughts or delusions and no longer suffers from psychiatric illness. His condition is reasonably stable and no psychiatric in-patient treatment is required.

From the reports and mitigation forwarded by counsel and from perusing the witness statement, I found out that the defendant used to be a mild and gentle-natured person. This is confirmed by statements taken from his relatives. He seemed to have enjoyed a caring and loving relationship with his mother, but the onset of the illness of his mother and learning the nature of it was a big blow to the defendant. Nonetheless, he still took good care of her but did not know where to vent his grievance. His resorting to drugs and probably ignorance of the effects led to this unfortunate incident. After the killing he was so full of guilt that he had wanted to take his own life.

I have taken into account all the features of the present case, including mother-and-son relationship, his relatively stable work pattern as a beverage attendant, and that this defendant had no previous record relating to violence. This incident could be said to be an isolated incident when the defendant’s drug-induced psychosis was at its height. His remorse is manifested in his early intention to plead guilty.

The sentencing principles as laid down in the case of Chambers relating to diminished responsibility are as follows:

1. If psychiatric reports recommend and justify, a hospital order would be made.

2. If hospital order is not appropriate, but the accused constitutes a danger to the public for an unpredictable period of time, a life sentence is appropriate.

3. If evidence indicates that his responsibility is so grossly impaired that his degree of responsibility was minimal, a lenient view could be taken.

4. And, lastly, where his responsibility is not minimal, a determinate sentence of imprisonment is appropriate, the length of which depends on his responsibility and the period of which he would continue to be a danger to the public.

In the present case, a hospital order is not appropriate as there is no basis to pass such a sentence. I have referred myself to two Hong Kong cases namely Liu Chun Yip and Chiu Wai Kan.

The killings in both cases were caused by the appellant suffering from a psychotic episode induced by drugs. In Liu Chun Yip, there is evidence from the psychiatrist that the appellant, once given his freedom, if he were to take drugs again, “he may once more have a psychotic episode and in that sense he represents a long term danger to the public” and the appellant there “would require close supervision and practical support if his return to the community was to be safely accomplished.” It was under such circumstances that the appellant was sentenced to a life sentence with a minimum term of 16 years.

In Chiu Wai Kan, however, although the opinion of the psychiatrist was that if the appellant was to resume taking drugs on his release from prison, the risk of a drug‑induced psychosis was high and close monitoring was important, the Court of Appeal having analysed the competing interests, emphasised on the principle of proportionality, ie, a sentence having regard to the protection of society amongst other factors instead of a sentence extended beyond what is appropriate to the crime merely “by way of preventive measure”.

Having taken all the factors into account and having done the necessary balancing exercise, I consider that whilst it is difficult to predict future risk, a determinate sentence is appropriate in the present case.

Now stand up, defendant.

No doubt this is a tragedy. Your addiction to drugs was as a result of your free choice. Although you tried to quit this vice habit, you have allowed yourself to be placed in this predicament when a month prior to this incident, upon your resumption of drug-taking, you did realise the effect was more horrifying than previously. Your vice habit has caused your mother to lose her life, and you to lose your mother. For having caused her death, the price you have pay is your freedom. A deterrent sentence is called for, and I reiterate the words of Dillon J, quoting the case of R v Green, in R v Bosch:

“...in sentencing for manslaughter where voluntary consumption of cocaine is involved (as in all types of drugs), the principles of denunciation and deterrence remain at the forefront...

...deterrence is not aimed at violence per se but is aimed at the highly irresponsible conduct that leads to the violence. Those who might emulate the lifestyle of the appellant that led to the killings must know that serious crimes done while under the influence of self‑administered, mind-altering substances will attract substantial terms of imprisonment: the more horrific the circumstances of the crime, the higher the sentence...”

I adjudge that in the circumstances of the present case, a sentence of 10 years’ imprisonment is appropriate and that is the sentence that I pass.