HKSAR v. LAU TSUN SANG MITCHELL

HCCC 102/2018

[2018] HKCFI 2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 102 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The defendant, Lau Mitchell Tsun-sang, was charged with the following three charges: (1) wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap 212, 1st charge; (2) false imprisonment, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221, that is the 2nd charge; and (3) attempted murder, contrary to common law and sections 159G and 159J(1)(a) of the Crimes Ordinance, Cap 200. That is the 3rd charge. He further pleaded guilty to the charges before a magistrate and was committed to the Court of First Instance of the High Court for sentence.

The Summary of Facts

The facts disclose that the defendant and victim were acquainted in school in 2015. In November, the defendant told the victim that he loved him. The victim refused the defendant’s love, but continued to treat the defendant as a friend. After the defendant dropped out of school in 2016, they lost contact until sometime around the Chinese New Year in 2017 when they came across each other on a bus.

The Incident

At around 5 pm on 14 March 2017 when the victim was about to open the door to his home which was a ground floor flat, he saw the defendant running towards him. The victim tried to close the door, but failed as the defendant blocked it. The defendant claimed to have a knife and refused to leave. The victim saw the defendant was holding a sharp and pointed knife about 24 centimetres in length. That is knife No 1. The victim became scared and stepped backwards and the defendant took the opportunity to enter the victim’s home. The victim told the defendant to put down the knife, that is knife No 1, to which the defendant complied. The defendant placed knife No 1 on a cabinet.

The victim dialled 999 and tried to scare the defendant away. The defendant, on seeing that, calmly took out another sharp and pointed knife about 20-centimetre long, that is knife No 2. The victim tried to snatch knife No 2 away. During the struggle over the knife, the sheath came off. The victim managed to snatch knife No 2 from the defendant and threw it outside the flat. The defendant then grabbed hold of knife No 1. The victim tried to snatch it and both he and the defendant fell to the ground. The victim was sitting on top of the defendant while the defendant was pushing him away.

Suddenly, the victim felt his right ear being stabbed once, and it kept bleeding. The victim also realised that a finger on his left hand and his right forearm were bleeding from cut wounds. At that time the defendant, who was not injured, was still holding knife No 1. The victim then sat down. The defendant tried to stab the victim’s abdomen after he closed the door to the flat. The victim managed to dodge the attack. The defendant then helped the victim to cover the latter’s wounds with cloth. The defendant kept apologising, but when the victim said he wanted to leave, the defendant shook his head.

The defendant then moved a refrigerator to block the door of the flat. When the victim told him not to do that, the defendant told the victim to shut up or else he would stab him. The two of them chatted, but most of the talking was done by the defendant. The defendant helped the victim to go to the toilet and he also gave the victim some water. After the defendant told the victim to ask the victim’s mother to buy food, the defendant used adhesive tapes to tie the victim to a computer chair before pushing the defendant into the bedroom. He then locked the bedroom door and blocked the door with the bed.

The defendant told the victim that he would commit suicide in front of the victim when the victim’s mother returned. The defendant also kept talking about the time the two spent as friends in the past. The victim’s mother returned home later. The defendant turned off the lights of the bedroom upon hearing movement. The victim’s mother managed to gain entry of the main door and saw blood on the floor of the living room. She could not open the bedroom door and no one answered when she shouted out. She decided to call the police. The victim did not call out to his mother to help as he was threatened by the defendant not to make a noise.

In the early hours of 15 March 2017, the defendant turned on the lights in the bedroom. He covered the face of the victim and stabbed the victim’s throat once with knife No 1, intending to kill him. As the cloth fell off his face, the victim saw the defendant holding knife No 1. Blood was spilling out from the victim’s mouth and the victim used his free hand to get some cloth to cover his throat to staunch the bleeding. The defendant kept cutting his own throat with the knife.

Firemen who attended the scene broke into the bedroom and pulled the defendant outside. The firemen and ambulance men untied the victim and assisted him to walk out of the bedroom. Inside the defendant’s rucksack, two more knives, both 21-centimetre long and were less sharp than knife No 1 and No 2 were found. At around 1.50 am inside an ambulance the defendant was arrested for wounding. Under caution, the defendant said, “I wanted to be with him, but he refused. I did not know what to do, therefore I attacked him.”

At 1.45 pm on the same day, the defendant attended an interview under caution. He said he was trying to kill himself in front of the victim as the victim distanced himself from the defendant. When the defendant was trying to kill himself, the victim tried to stop him, and in the struggle he stabbed the victim’s ear. As the victim still refused his love after a long chat and the defendant could not accept the victim to be owned by another, he used a knife to stab the victim’s neck to try to kill him. The defendant would then commit suicide.

On 17 March 2017, the defendant attended a video-recorded interview. He said he felt unhappy when the victim started to distance himself from him. He bought four knives on the same day about a week before the incident. He bought four as two of them were not sharp enough. He waited for the victim and displayed a knife to the victim and took him inside. He revealed his love for the victim, but was ignored. He tried to commit suicide in front of the victim and the victim tried to stop him. During the struggle, the victim was injured. The defendant helped to stop the victim’s bleeding and tied him to a chair.

The defendant then sent messages to the victim’s mother, using the victim’s phone, to try to delay her return. When he heard someone banging on the door, he pushed the victim inside the bedroom. He tried to kill the victim by stabbing the victim’s neck once. When he saw blood coming out from the victim’s mouth, he decided not to assault the victim any more. The defendant then stabbed his own neck with the knife, trying to kill himself.

The medical evidence on the victim

The victim was rushed to the A&E department of a hospital. He was in shock and was coughing up blood. He was intubated, emergency operation was performed on him for nearly four hours. A 2-centimetre deep laceration was noted over his right upper neck. There was active bleeding from a 1-centimetre pharyngeal defect. There was another 1-centimetre superficial laceration over his right lower neck and two other lacerations on his right forearm, 1-centimetre and 2-centimetre respectively. The victim was admitted to the ICU after the operation and was tube fed until 27 March 2017.

The victim was assessed by a clinical psychologist and a psychiatrist on 31 March 2017. He was diagnosed to have acute stress reaction to the traumatic experience, with suicidal ideation. The victim’s mother also suffered from significant emotional distress. All the victim’s wounds were healed on 4 May 2017. I have been provided with the psychiatric report dated 17 April 2018 and a psychologist’s report dated 19 April 2018 on the victim.

Now I will first refer to the psychiatric report on the victim. Dr Kwok Ching-yin in his report said the victim was seen by a Child Psychiatric Liaison Team during his hospital stay at the Prince of Wales Hospital, was referred to his hospital, that is, the Alice Ho Miu Ling Nethersole Hospital for continued observation and management of the victim’s mood after he was discharged. The victim developed recurrent flashbacks of the assault, frequent nightmares of being stabbed, avoidance from the scene of crime and marked hyperarousal symptoms.

He also developed depressive mood, insomnia, fragmented sleep, early morning waking, reduced appetite and social withdrawal. He was diagnosed to be suffering from post-traumatic stress disorder, PTSD, and treated with medication and psychological intervention with effect. The victim was last seen on 17 October 2017 and he reported that his mood was stable with less flashbacks and nightmares. The victim could attend school regularly and was less worried about the assault. The victim was suggested to continue with his pharmacological and psychological treatment.

Now the psychologist’s report on the victim. The victim was referred to see a clinical psychologist, Dr Chan, by Dr Kwok, that’s the psychiatrist, to treat the PTSD and the depressive features. Dr Chan saw the victim a total of six times between 19 June 2017 and 15 March 2018. In summary, Dr Chan is of the view that the victim suffers from PTSD with re-experience of images of being stabbed, marked distress and hyperarousal, as well as prominent avoidance of details of the incident.

The frequency and intensity of PTSD gradually reduced with treatment, but the victim’s cognitive and behavioural avoidance persists. The frequency of the flashbacks and nightmares had gradually reduced. His sleep quality and appetite have improved. The victim no longer covers his neck wound and has resumed regular schooling. The victim can gradually tolerate the stress of the sight of a knife at home, but still actively avoids talking about the incident. He still avoids going out alone or going to the market where he might see raw meat with blood. These avoidances cause a certain level of impairment in the victim’s daily living. Continued clinical psychology service is recommended.

The medical evidence on the defendant

I asked for and was provided with the medical reports on the defendant. The defendant was admitted to the A&E of the Prince of Wales Hospital on 15 March 2017 and was discharged and transferred to the Tai Po Hospital the next day. He has a known history of conduct disorder, attention deficit hyperactivity disorder and epilepsy. 12 lacerations over his bilateral anterior neck with active blood oozing was seen. Urgent CT scan showed major vasculature, including the carotid arteries and the jugular veins are intact. The lacerations were sutured.

Now the background and the mitigation. The defendant was born in April 1998, so he is 20 years of age now and was almost 19 at the time of the offence. He is not a first offender. He has six previous convictions which include one indecent assault, one criminal intimidation, one taking conveyance without authority, one driving without a licence, one using a motor vehicle on a road against third party risk, and one theft. The defendant studied up to Form 4 level. He worked part-time at a McDonalds between 2013 to 2016, and in a Japanese restaurant in 2016. The defendant is single. He resided with his grandmother prior to his arrest.

Because of the nature of the present offence, I called for a psychiatric report and a psychologist’s report on the defendant before sentence. I also asked for details of the indecent assault that the defendant committed before. That is, when he was sentenced when he was 13, and had those facts provided to the psychiatrist and the psychologist for their information as well. Mr Keith Fung, counsel for the defendant, reserved his mitigation on behalf of the defendant pending those two reports.

Psychiatric report on the defendant

I will not set out what the psychiatrist, Dr Dorothy Tang, has said about the defendant in full. After setting out the defendant’s background, his psychiatric history, collateral information gathered from the defendant’s aunt, the defendant’s own account of the offences and the examination of the defendant’s mental state, Dr Tang was of the opinion that the defendant had a history of attention deficit and hyperactive disorder and is opined to have psychopathic traits.

The defendant appeared to have poor control and behaviour, lack of empathy and limited remorse, predicting a high risk of reoffending. On the other hand, no mood or psychotic symptoms were observed. The defendant was not observed to have significant attention or hyperactive problem in the Siu Lam Psychiatric Centre. In Dr Tang’s recommendation, no inpatient psychiatric treatment is warranted at the moment. Continued outpatient follow up with psychological service is recommended.

Psychologist’s report on the defendant

The defendant was interviewed by Mr Joe Wong, a clinical psychologist of the CSD. Mr Wong also obtained collateral information from the defendant’s grandmother. Again, I will not repeat in full what Mr Wong said in the report. Mr Wong set out his observation of the defendant’s behaviour during the assessment, pertinent psychological background of the defendant, the defendant’s psychiatric history, the defendant’s account of the offences, and the clinical impression Mr Wong forms.

Mr Wong then set out his conclusion and recommendation which I will repeat here. The defendant was assessed to be a young man with low self-esteem, with sense of insecurity, need of control, inflexibility in coping, and antisocial personality traits. The present offences might be due to his personality problem and failure to cope with intimate relationship problem. His risk of offending was assessed to fall at least into the higher end of the moderate range, especially in the context of romantic relationship should he remain unchanged.

Psychological follow up on his personal problem, violent and maladaptive coping, would be beneficial to his rehabilitation. Prognosis was considered to be guarded given the defendant’s resistance to advice at the moment. His genuine participation and effort made in psycho-therapy was crucial to reform himself.

The relationship between the defendant and the victim

I note that the defendant claimed he had a relationship with the victim in this case for a few years before the victim distanced himself from the defendant because of pressure from the victim’s family, which is not the picture painted in the summary of facts admitted by the defendant. According to the information provided by the prosecution on my request, there was never any relationship between the defendant and the victim.

When they were both in school, after an outing in which the victim went out with the defendant and other classmates, the defendant suggested going to the victim’s home to play. The victim agreed and brought the defendant home to play. That was how the defendant knew where the victim lived. It was after this outing that the defendant declared his love to the victim, which the victim refused. The victim remained friends with the defendant. As the defendant and the victim played truant and skipped school one day when it was the school’s sports day, the victim was reprimanded by his relatives and teachers.

The victim blocked the WhatsApp messages from the defendant and also blocked calls from the defendant. Despite the defendant repeatedly requesting the victim to unblock him, the victim refused. Later, the victim lost contact of the defendant when the defendant left school and did not meet again until the chance meeting on the bus during the Chinese New Year holidays. The victim stayed to chat with the defendant after both alighted from the bus and that was upon the defendant’s request, and later the defendant left. Following this time, the next occasion the victim saw the defendant was the day of the incident when the defendant ran towards him outside his home.

When I questioned the defendant’s counsel, Mr Fung, on this issue on 12 July, Mr Fung informed me that the defendant insisted that he and the victim had a relationship and he could prove the same by showing photographs on his Instagram account. I stood the case down the defence showed a number of photographs showing the defendant and a boy, whom the defendant claimed to be the victim, on different occasions. The dates on the Instagram were in July and August 2015, that is to say, these photographs were taken before the defendant declared his love to the victim in November as shown in the Admitted Facts.

Judging from the photographs, it is not immediately apparent that there was a relationship between the persons depicted in the photos. They are consistent with young boys horsing around, having fun. In any event, it would only be fair that the victim had a chance to have a say about these photographs. I therefore adjourned the matter until today, 3 August. I have since been provided by the prosecution a statement from the victim in relation to those photographs. Suffice it to say that the victim could not remember when and where some of the photographs were taken, but in any event, for all those he could remember, he maintained that there was no special relationship between him and the defendant. The photographs, at most, show him fooling around with the defendant and other classmates in a social setting.

During the same hearing on 12 July 2018, Mr Fung also informed me that the defendant claimed to have some photographs stored in his iPhone which was in the custody of the police. That being the case, I adjourned the case to today so that arrangement can be made for the defendant to have access to his iPhone and to have the photographs he mentioned captured by photo and shown to the victim before the hearing on the 3rd. Before the hearing on 3 August, I was informed by the defence that there were some problems with the defendant’s access to his iPhone: he was not allowed by the Correctional Services Department to touch the phone to unlock it, and he was not prepared to give the password to the police.

During the hearing today, on 3 August, I allowed the defendant to unlocked his phone in court and he located one photo which is a large photo of the third photo he had already adduced to this court on 12 July, showing he and the victim were holding hands. I have already mentioned the response of the victim to those photographs. In relation to this particular one, the victim explained that he was holding the defendant’s hand as the defendant was trying to tickle him at the time. It is clear that the photo was taken in a public place with other persons present.

The defendant insisted that he and the victim were lovers and wanted to have a Newton hearing. I refused to hold such a hearing on the flimsy evidence of such a photograph and the other photographs adduced before when considering the trauma and stress that would be suffered by the victim if there is such a hearing. I informed the defendant through his counsel that I was prepared to accept that, as far as he was concerned, his infatuation with the victim led him to believe that they were lovers. Upon hearing what I have said and getting further legal advice, the defendant did not insist that he and the victim were lovers, and would not ask for a Newton hearing.

Mitigation tendered on the defendant’s behalf

Mr Fung submitted that the defendant pleaded guilty at the earliest opportunity and is entitled to the full one-third discount if nothing untoward happened. Mr Fung stressed that all three counts arose out of the same incident and urged me to consider concurrent sentences. While submitting that the facts of this case would warrant a starting point of 15 to 18 years, Mr Fung urged me not to impose any sentence longer than 15 to 18 years as a longer sentence would not necessarily be beneficial to the defendant in terms of treatment and counselling, which the defendant clearly needed.

Mr Fung also accepts that the risk of the defendant reoffending cannot be said to be low, but he also urged this court to consider that the defendant does have the support of his family, in particular his aunt, who had looked after him when he was young.

Penalty for the offences

Wounding, under section 19 of Cap 212, a person convicted of this offence is liable to imprisonment for 3 years. False imprisonment, under section 101I of Cap 221, a person convicted of an indictable offence for which no penalty is provided by any ordinance, he shall be liable to imprisonment for 7 years and a fine. Attempted murder, under section 159J(1)(a) of Cap 200, a person convicted of attempted murder is liable to imprisonment for life.

Consideration and reasons for sentence

The defendant was convicted on his own plea of three offences. The most serious is the offence of attempted murder. The second is false imprisonment, and the last one, wounding. There are no guidelines for the sentence of this offence, that is, the attempted murder, as the circumstances of the offence vary considerably from case to case. I was referred to two authorities, that is HKSAR v Yip Chu Sum CACC 367/2001 and HKSAR v Jiang Guohua CACC 31/2005. The former one involved a taxi driver using a spanner to try to kill his boss who was, according to him, a loan shark. The latter concerned a man who was the husband of a prostitute, viciously attacking a customer of his wife.

The circumstances of those two cases are so different from the present case that I do not derive any assistance from them. In my consideration of the appropriate starting point, I take into account the following matters. The defendant was clearly infatuated with the victim and was upset that his “love” for the victim was not returned. The defendant armed himself with no less than four knives - two of them were sharp and pointed - when he waylaid the victim outside the victim’s home. He threatened to kill himself when he asked the victim to return his love, which in my view amounted to emotional blackmail.

When he threatened to kill himself, the victim went to stop him and ended up being wounded by the knife held by the defendant. The defendant also tried to stab the victim’s abdomen, which the victim managed to dodge. The defendant falsely imprisoned the victim against the victim’s will at the victim’s own home for a number of hours, tying the victim up and locking the victim inside his own bedroom. The defendant decided to kill the victim and he used a sharp knife and stabbed the victim’s neck, a very vulnerable part of any human body.

From the defendant’s own confession, as far as the defendant was concerned, since he could not have the victim’s love, no one else could, so he attempted to kill the victim. The victim was fortunate in having survived the attack. Apart from the physical injuries, the victim had to cope with the mental stress and trauma brought on as a result of this attack - as detailed in the various reports. What the defendant had done to the victim in this case is exceedingly serious. The defendant resorted to violence when he felt that his love, his feelings, for the victim was not returned. He planned to kill himself in front of the victim.

Worse still, the defendant decided to kill the victim when he failed to talk the victim into agreeing to accept him. The defendant could not bear the thought of the victim being with some other person when he himself could not have the victim.

In my view, the defendant is a dangerous man, a danger to society. The defendant, whilst still fairly young, is not a child. He has not learnt from his misdeeds when he was convicted of indecent assault and criminal intimidation and sent to a reformatory school.

He exercised no control over himself, had no empathy for others. All his cares are his own feelings, his own happiness. He was prepared to resort to violence when he could not get what he wanted. His risk of reoffending is clearly high. The defendant needs to be sent away for a long period to protect our society.

Apart from what I have already mentioned, I also take into account the stress and trauma suffered by the victim at the time, and continues to suffer, though at a lesser degree. It is bad enough for the victim to be falsely imprisoned and attacked so viciously by the defendant; it is worse that these attacks took place at his own home.

I will make it clear that when I mention these facts I consider for the starting point, I am actually referring to all three offences, not just the attempted murder. So for the wounding offence, I am of the view that a proper starting point is one of 2 years. For the false imprisonment offence, bearing in mind the way the defendant forced himself into the victim’s home, held him hostage for at least eight hours and subjected him to fear and injuries, I am of the view that the proper starting point is one of 3 years.

As for the attempted murder, it is a vicious attack by the defendant to stab at the victim’s throat. Having considered all the circumstances, I am of the view that a starting point of 14 years is appropriate for this offence.

I am aware that in coming to the appropriate starting point for each offence, I have taken into account factors which exist in other counts. To avoid double or even triple counting, I will consider a global starting point for all three offences. I am of the view that a global starting point of 15 years is appropriate to reflect the criminality involved in this case, bearing in mind the relative young age of the defendant.

I have mentioned that the defendant had not learned from his past misdeed when he was convicted of indecent assault and criminal intimidation in 2011 when he was 13. I was provided with the facts and I will just briefly mention them here. The defendant was about 11 to 12 years old when he asked a fellow male student to show him his private parts. That student complied. The defendant looked at and touched the private part of that student on about 10 occasions, then one day after the student’s parents attended the school for a discussion about the student’s academic performance, the defendant produced a fruit knife and threatened that student not to tell anyone about what had happened.

The defendant accidentally dropped the fruit knife at the school playground and enquiries made resulted in that student disclosing what had happened to him. The defendant was arrested and he admitted to the offences. The defendant was sent to a reformatory school in 2011 when he was 13. On the same occasion, that is, on 10 June 2011, the defendant was also convicted of the three offences concerning the vehicle and also the theft. For all these offences, he was sentenced to the reformatory school.

I did consider whether I should enhance the global starting point of 15 years in view of the defendant’s previous convictions. After consideration I decided not to as the defendant was still quite young, 11 to 12 years old, when he committed those offences.

The defendant pleaded guilty at the earliest available opportunity. Usually, a defendant pleading guilty so early would have a full one‑third discount. Since the defendant insisted earlier that he and the victim were lovers, and more court time had been used to clarify this issue when, at the end of the day, the defendant did not insist any more, I have to consider I will still give him one-third discount or less than that.

After considering the matter, as I am prepared for the purpose of sentence to accept that the defendant’s infatuation with the victim led him to believe that they were lovers, and bearing in mind the defendant is still fairly young, not yet 21, I will still give him the full one-third discount. So with the one-third discount, the sentence will be 10 years.

To achieve this end, the defendant is sentenced as follows.

Count 1, wounding, 16 months; Count 2, false imprisonment, 2 years; Count 3, attempted murder, 10 years. All sentences to run concurrently, making a total of 10 years’ imprisonment.