HKSAR v. CHEUNG KAM YAU

HCCC 413/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 413 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.  The jury by unanimous verdict has found that the defendant did the act as charged of the offence of unlawful act manslaughter. 

2.  These proceedings followed the special procedures laid down by sections 75 and 75A of the Criminal Procedure Ordinance, Cap 221, on the issue as to whether a defendant is fit to stand trial. 

3.  The jury first considered whether the defendant was under a disability so that he was not fit to be tried.  On this issue, the jury returned a unanimous verdict that he was unfit to be tried.  This was done in accordance with section 75. 

4.  The jury then went on to consider whether the defendant did the act charged against him.  This was done in accordance with section 75A. 

5.  Accordingly, the jury by its verdict has found that the defendant was under a disability of the mind when he committed the act of the offence with which he was charged.  However, the jury found that he did the act charged against him, namely, he committed the act which caused the death of the deceased which was dangerous in the sense that it was one which all sober and reasonable people would realise must subject the victim to the risk of some harm.  It had been alleged against him that he assaulted the deceased which resulted in the deceased falling backwards to the floor, sustaining head injuries which caused his death.

6.  The circumstances of the case need to be appropriately understood in order to fairly and properly address the fate of the defendant following the jury’s verdicts. 

7.  Both the defendant and the deceased were residents at the Dick Chi Day Activity Centre and Hostel.  They had both been there since 1998.  They had both been assessed as severely mentally handicapped persons with the intelligence of a young child.  The defendant and the deceased were 67 and 68 years of age respectively. 

8.  According to the evidence of staff at the Hostel, neither of them had a record of violent behavior or of arguing or fighting with other residents.  Staff did not know of any problems or grudges between them.  Both of them behaved fairly passively and occasionally interacted with each other.  Because of their disability, they were childlike in their behavior and would use simple sentences or words to communicate. 

9.  The incident in question was captured by CCTV footage.  It shows the defendant initially facing his room, turning around and looking towards the deceased who was further away from him along a corridor. The defendant is seen speaking and waving his arms and then all of a sudden rushing forward towards the deceased.  He forcibly pushes the deceased with both hands.  The deceased is facing him and as a result of the force of the push, he falls backwards onto the floor.  The fall resulted in him hitting the back of his head on the floor surface.  The deceased sustained serious head injuries in the form of acute subdural hematoma which resulted in his death. 

10.  The issue now for the court is what appropriate order should be made as a result of the jury’s verdict pursuant to section 75A. 

Appropriate order pursuant to section 76

11.  Section 76(1)(b) provides that when under sections 75 and 75A a finding is recorded that a defendant is under disability and that he did the act or made the omission charged against him, the rest of the provisions of the section apply.  The material provision under this section is subsection (2) which reads:

“(2) Subject to subsection (3), the court shall-

(a) if it is satisfied, on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register established under section 6(3) of the Medical Registration Ordinance (Cap 161)), that it is necessary in the interests or the welfare of the accused person or for the protection of other persons that the accused person be admitted to the Correctional Services Department Psychiatric Centre or a mental hospital, make an order that the accused person be admitted-

(i) in accordance with the provisions of Schedule 4, to that Centre; or

(ii) to such mental hospital as may be specified by the Chief Executive,

as the case may be; or

(b) make in respect of the accused person such one of the following orders as it thinks most suitable in all the circumstances of the case, namely-

(i) a guardianship order under Part IIIA of the Mental Health Ordinance (Cap 136);

(ii) a supervision and treatment order under Part IIIB of that Ordinance;

(iii) an order for his absolute discharge.”

12.  Subsection (3) provides that subsection (2)(b) shall not apply where the offence to which the finding relates is an offence the sentence which is fixed by law.

13.  Pursuant to section 76, a court may avail itself of one of three options.  The first option is where a court may order that the accused be admitted to a psychiatric centre or mental hospital.  To make such an order, the court must be satisfied on the evidence of two or more registered medical practitioners, of whom two are psychiatrists, that it is necessary to do so in the interests or the welfare of the accused or for the protection of others.  The remaining two options are available where the court thinks it is most suitable in all the circumstances of the case that they should be made. The second option is where the court may make a guardianship order or a supervision and treatment order.  A guardianship order and a supervision and treatment order are empowered under section 44A and section 44D of the Mental Health Ordinance, Cap 136, respectively.  The third option is where the court may order that the accused be discharged absolutely.

14.  The situation in relation to the defendant is that he has been a resident at a centre for the care of the mentally handicapped since 1998.  He is now 68 years of age.  From all the information and material before me, the defendant in all likelihood will reside at the centre or a similar institution for the remainder of his life.

15.  At the last hearing, I directed that two psychiatrists’ reports and a social welfare report be prepared and submitted to the Court.  These reports have been provided and have been of great assistance in determining the appropriate order in the circumstances of this case and of the defendant.  Having regard to all the circumstances, it is a question as to whether or not I should make a guardianship order. 

16.  Section 44A empowers a court to make a guardianship order in respect of a person to whom section 76 of the Criminal Procedure Ordinance applies, provided that it is satisfactorily established on the medical evidence required that the person is mentally incapacitated to a nature or degree which warrants his reception into guardianship, and that it is necessary to do so in the interests or the welfare of the person or for the protection of other persons.  In deciding whether to make such an order, the court shall have regard to all the circumstances of the case including, the nature of the act or omission attributed to the person, his character and antecedents, the other available methods of dealing with him, and the advice of the Director of Social Welfare as to the suitability of the order and, where applicable, the availability of a suitable person to exercise the guardianship.  A guardianship order may be made, if the court is of the opinion that it is the most suitable method of disposing of the case.

17.  As provided by section 44A, the guardianship order places the person under the guardianship of the Director of Social Welfare, or a person authorized by the Director of Social Welfare for that purpose; and that the period of the order should not exceed 1 year.

18.  Under section 44B(1), a guardianship order may confer on the Director of Social Welfare or any other person authorized by the Director of Social Welfare, as guardian, to the exclusion of any other person, one or more of the following powers:

“(a) the power to require the mentally incapacitated person to reside at such place as may be specified by the guardian;

(b) the power to convey, or to arrange the conveyance of, the mentally incapacitated person to the place so specified by the guardian, and such reasonable force may be used as is necessary for the purpose;

(c) the power to require the mentally incapacitated person to attend at places and times so specified by the guardian for the purpose of treatment or special treatment (within the meaning of section 59ZA) or occupation, education or training;

(d) the power to consent to that treatment (other than special treatment) on behalf of the mentally incapacitated person but only to the extent that the mentally incapacitated person is incapable of understanding the general nature and effect of any such treatment;

(e) the power to require access to the mentally incapacitated person to be given, at any place where that person is residing, to any registered medical practitioner, approved social worker, or other person (if any) specified in the order;

(f) the power to hold, receive or pay such monthly sum specified in the order on behalf of the mentally incapacitated person for the maintenance or other benefit of that person as if the guardian were a trustee of that monthly sum.”

19.  It should also be noted that under section 44B, there are provisions for replacing a guardian, varying or terminating the guardianship order, or renewing the guardianship order for a period of not more than 3 years. 

Psychiatric and background reports

20.  I will now briefly set out the contents and recommendations of the reports submitted to the Court in accordance with the relevant provisions. 

21.  Dr Wong Ho Hon is a psychiatrist at the Yung Fung Shee Psychiatric Centre who examined the defendant.  In his report he set out a brief history of the defendant’s background and circumstances.  He concluded that the defendant had a mental retardation of moderate to severe grade with behavioral problems in the past.  He said he was currently stable and settled in the hostel where he resides.  He recommended that a guardianship order should be made to ensure proper supervision for his treatment and safeguard his welfare and that of the public.

22.  Dr Chan Lai Wah Connie is also a psychiatrist at the Yung Fung Shee Psychiatric Centre who examined the defendant.  In her report she explained that the defendant was known to have mental retardation with behavioral problems, namely temper tantrums.  Overall, she found that the defendant had a childish demeanour without any obvious psychotic or mood features.  She concluded that he had diminished mental capacity and warranted a guardianship order for the welfare of himself and that of the public. 

23.  A detailed report was also submitted by Ms Lee Yuen-mei Mavis, a social worker from the Social Welfare Department.  She set out a comprehensive history of the defendant’s background and circumstances, as well as an assessment of his current situation.  She explained that in the assessment of the defendant’s current mental condition, he had stable emotion and had no aggressive behavior.  She explained that apart from committing the offence, in the 8 years as a resident of the hostel the defendant did not display any serious behavioral problems.  She interviewed the defendant who she found to be in a stable mood with limited verbal skills and ability to understand matters.  She observed that the defendant had a close relationship with his family, in particular his younger sister, Madam Cheung Suet-fong, who has taken care of him.  She discussed with her the role and responsibilities of a guardian.  Madam Cheung had no objection to act as the defendant’s guardian if necessary. 

24.  Ms Lee’s overall assessment was that the defendant was unable to take care of himself and would need residential care for the rest of his life.  The hostel provided the care required.  She noted that the hostel had implemented various measures to safeguard the safety of the defendant as well as other residents.  She also noted that his general affairs were managed by his sister.  In light of these matters, she was of the opinion that there was no need for a guardianship order.  She explained that in relation to the defendant’s case:

“…due to his suffering from intellectual disability with behavioural problem, he used to attend psychiatric treatment at the Yung Fung Shee Psychiatric Centre (YFSPC) and he had good drug compliance under the supervision of the hostel staff. He will attend regular psychiatric appointment at YFSPC continuously. His medical case has been upgraded to Intensive Care status with the provision of services by Community Psychiatric Nurse of YFSPC from March 2017. As the subject’s medical treatment would be closely monitored, supervision under the Director of Social Welfare may not be necessary. Thus, the Supervision and Treatment Order as well as Guardianship Order is not recommended.”

Discussion

25.  It would appear from the reports of the two psychiatrists that given the defendant’s mental state they were of the opinion that he should be subject to appropriate supervision by means of a guardianship order to safeguard his welfare and that of the public.  Both psychiatrists made no reference to the system and measures that are in place at the hostel to ensure that the defendant is appropriately supervised, which the social worker addressed in some detail.  Bearing in mind the role and responsibility of a guardian, particularly the powers as provided under section 44B(1) that he or she is required to exercise, I agree with the social worker that they seem to be appropriately catered for by the system and measures that are in place at the hostel.  It is for this reason that I do not think that the appointment of a guardian is necessary, given that that role and responsibility has already been undertaken by senior management and staff of the hostel.

26.  Before coming to this view, I requested that Madam Cheuk Wing Yi, the service manager of the hostel and a social worker, who has given evidence in these proceedings, give evidence again about the system and measures in place at the hostel and how the defendant has been behaving since he was released from bail and allowed to return to the hostel.

27.  Madam Cheuk testified that the hostel is a licensed residential care home for persons with mental disabilities.  There are 50 residents at the hostel.  There are about 52 full-time staff performing an array of nursing, support and administrative duties.  Generally, there are about 10 to 11 staff on duty at any one time.  A nurse is always on duty at the hostel.  She explained that there is in place a supervision system where, depending on the individual case, a resident’s behaviour will be monitored and tracked.  She explained that there is in place a reward and disciplinary system, which is individually tailored to each resident, for supervision and rehabilitation.  Occurrence of mild violence amongst residents does take place, but there are adequate arrangements to deal with such situations when they arise.  Regular case reviews are conducted on all residents by nurses and social workers, to monitor and assess if different therapies or treatments are required in an individual case.  There are also regular consultations with doctors and therapists.

28.  Madam Cheuk explained that the defendant since his return to the hostel has been stable and content.  She further explained that the defendant’s activities are under supervision and control, and staff monitor his interaction with others which is carefully calibrated and limited. The defendant also receives appropriate psychiatric and counselling care and his behavior is reviewed on a regular basis depending on his emotional state. It is anticipated that this will continue for at least the next 6 months.

29.  The incident in this case involved the defendant rushing forward towards another resident and pushing him.  It was a single act which resulted in the other resident falling backwards and hitting his head on the ground.  Unfortunately, it resulted in his death.  I am told, and I accept, that the defendant has in the past been a reasonably well behaved and cooperative resident at the hostel, and this was an isolated incident.  With this in mind, as well as the purpose and powers of a guardian and the system and measures that are in place at the hostel, I am satisfied that a guardianship order is not necessary.  

Conclusion

30.  In light of the foregoing, I therefore order the defendant’s absolute discharge.