HKSAR v. TSANG MAN WAI, RAYMOND

CACC 146/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 146 OF 2016

(ON APPEAL FROM HCCC NO 195 OF 2015)

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J U D G M E N T

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Hon Zervos J (giving the Judgment of the Court):

Introduction

1.  The applicant stood trial for the murder of his elder brother before Deputy High Court Judge McMahon (the judge) and a jury.  At the conclusion of the trial, the jury found him not guilty of murder, but guilty of manslaughter by an unlawful act.  He was sentenced by the judge to life imprisonment with a minimum period to be served of 15 years’ imprisonment.

2.  The applicant appeals his sentence on the basis that both the imposition of life imprisonment and the minimum period of 15 years’ imprisonment were manifestly excessive and wrong in principle.

3.  Following the conviction of the applicant, the judge informed the parties that he was considering imposing a life sentence on the applicant because of the appalling savagery of the killing and the applicant’s past abuse of illicit substances and previous episodes of violent behaviour.  He requested that the parties address this issue, and that one of the medical experts who had given evidence at the trial address the future risk that the applicant poses as a serious danger to the public together with his prospects of rehabilitation.

4.  During the trial, medical evidence had been presented in relation to the applicant’s mental state and personality, and his abuse of illicit substances and the affect it had on his behaviour.

5.  We felt that after considering the initial submissions of the parties that the medical evidence at trial needed to be updated and elaborated upon in order to properly address whether a life sentence was justified in the case of the applicant. 

6.  Having now had the benefit of additional evidence and the submissions from the parties, we have concluded that in all the circumstances of this case a life sentence with a minimum period to be served of 15 years’ imprisonment is justified.  We come to this conclusion on the evidence and material presented to us and for the reasons that we are about to give. 

The imposition of a life sentence

7.  A life sentence is the maximum sentence known to the law in Hong Kong.  For the offence of murder, a life sentence is mandatory, whilst for the offence of manslaughter it is discretionary. 

8.  Manslaughter cases vary significantly in their circumstances, and give rise to a wide range of degrees of culpability.  It is for this very reason that there are no guideline tariffs for manslaughter, and that the sentences in other manslaughter cases are seldom of much utility.[1] At the same time, every case of manslaughter involves the taking of human life, and upon conviction the maximum sentence is life imprisonment.  As a consequence, there will be cases which warrant the maximum sentence. 

9.  When deciding whether to impose a discretionary life sentence, an appropriate starting point is to consider whether the three conditions laid out in R v Hodgson[2]are satisfied for such a sentence to be justified.  The first is where the offence or offences are in themselves grave enough to require a very long sentence.  The second is where it appears from the nature of the offences or from the offender’s history that he is a person of unstable character likely to commit such offences in the future.  The third is where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. 

10.  Lord Bingham CJ in Attorney General’s Reference No 32 of 1996 (Whittaker)[3]said thatthese conditions may be put under two heads:

“… The first is that the offender should have been convicted of a very serious offence.  If he (or she) has not, then there can be no question of imposing a life sentence.  But the second condition is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence.  By “serious danger” the Court has in mind particularly serious offences of violence and serious offences of a sexual nature.  The grounds which may found such a belief will often relate to the mental condition of the offender.  So much is made plain by Wilkinson (1983) 5 Cr. App. R. (S.) 105, in particular in the passage at 108 where Lord Lane C.J. cites the judgment of Lawton L.J. in Pither (1979) Cr. App. R. (S.) 209 and continues:

“It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is really appropriate and must only be passed in the most exceptional circumstances. With a few exceptions, of which this case is not one, it is reserved, broadly speaking, as Lawton L.J. pointed out, for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner’s progress may be monitored by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large.”

It is therefore plain that evidence of an offender’s mental state is often highly relevant, but the crucial question is whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate time.”[4]

11.  Accordingly, in the exceptional circumstances when a court is considering the imposition of a discretionary life sentence, the crucial question is whether on all the facts there are good grounds to believe that an offender is likely to represent a serious danger to the public for an indeterminate time. 

12.  No doubt, the task of a court in predicting the danger an offender poses to society is a difficult one.  It requires the court to carefully evaluate what is presently known in order to determine the level and degree of danger to the public that an offender is likely to represent in the future. 

13.  It is imperative therefore that a court when considering exercising its discretion to impose a life term, in view of the gravity of the sentence, should ensure that all relevant matters have been properly addressed through the presentation of credible and reliable information and material, especially when it is being considered in order to determine whether an offender is likely to represent a serious danger to the public in the future.[5] In the vast majority of cases, this will involve obtaining medical and background reports of an offender that specifically address any behavioural problems or issues, and a propensity towards committing sexual or violent offences.  Such information will provide useful insight as to whether an offender is of unstable character and whether he is likely to represent a serious danger to the public in the future.  However, there may be cases where there is no need for medical evidence to be led in order to ascertain the unstable character of an offender, who because of his criminal behaviour and history is likely to commit similar offences in the future.[6]   

14.  When a court comes to the conclusion that a discretionary life sentence would be proper, such factors as a plea of guilty, cooperation with the authorities and a display of remorse, if present, may have little relevance to the sentencing process.[7]  This is because the court has necessarily turned its consideration to whether an offender is of unstable character to such an extent that he is likely to remain a serious danger to the public in the future. 

15.  We have been referred to the Court of Appeal decision in HKSAR v Chiu Wai Kan Vicken (No.2)[8]which determined on appeal the sentence to be imposed on the appellant after his conviction for murder was substituted for manslaughter on the basis of diminished responsibility.  The appellant was in his early 20s when he brutally killed his elderly stepfather whilst suffering with a drug-induced psychosis.  He commenced his drug abuse of ketamine at the age of 16 and except for a short respite, continued heavily abusing the drug until the offence.  He had no previous history of violence or mental illness, other than the drug-induced psychosis at the time of the killing. 

16.  Stock VP (as he then was), in giving the judgment of the Court, examined the factors both for and against the appellant when determining an appropriate sentence.  In assessing the degree of responsibility for the killing, he noted that even though the appellant’s responsibility was significantly diminished by his drug-induced psychosis or irresistible impulse to take drugs, he must bear responsibility for his free choice in long term abuse, especially as he had sought no assistance to end the cycle.  He said:

“…In the case of a killing by a person suffering from a drug-induced psychosis or an irresistible impulse to take drugs as a result of his habits, such as results in a finding of manslaughter by reason of diminished responsibility attributable to that psychosis or impulse, the fact of the addiction is certainly not a mitigating factor; indeed, recognition of the choice factor and the requirements of deterrence demand that, generally – though each case must be viewed in the light of its own peculiar facts and the appellant’s own history – the degree of responsibility is to be viewed as greater than in cases of non-self-induced illness. It will be greater still in cases where no help is sought in the face of a history of violent propensities when affected by the addictive substance. Furthermore, the Court must take care in such cases not to double count in a defendant’s favour: in other words, the Court must recognise that his condition of drug-induced psychosis has already been reflected in the conviction for manslaughter rather than murder.”[9]

17.  Stock VP sounded a note of caution that protection of the public cannot justify a sentence which constitutes mere preventative detention.[10] However, he went on to stress that when the case warrants it, the protection of society is a material factor in fixing an appropriate sentence.

18.  In the course of submissions, a comparison was sought to be made between the present case and Chiu Wai Kan Vicken (No.2).  As we have said, comparing manslaughter cases is of limited utility because no two cases are exactly alike.  The case of Chiu Wai Kan Vicken (No.2) is quite different in various respects from the present case.  It was concerned with sentencing a young appellant for manslaughter by reason of diminished responsibility due to his drug-induced psychosis.  He had no past history of violence or mental illness.  Whereas in the present case, the applicant is middle aged, who not only had a history of illicit substance abuse, but also a history of violence as well as having a personality disorder or personality traits that exhibit aggression and anti-social behaviour. 

The imposition of a minimum term

19.  Section 67B(1) of the Criminal Procedure Ordinance, Cap 221, requires a court when passing a discretionary life sentence, to specify a minimum term that an offender must serve. 

20.  Stock JA (as he then was) in HKSAR v Hui Chi Wai and Others (No.2)[11]described the effect of this requirement in these terms:

“…The section is not designed to provide a sentence of imprisonment in lieu, as it were, of a life term. It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase ‘minimum term’ that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released. Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner’s release at the end of the minimum term and, indeed, may decide that release is not permissible for some considerable time beyond that date, or indeed at all.”[12]

21.  Stock JA further explained that a court when deciding upon a minimum term is primarily addressing the punitive and deterrent element dictated by the offence and the current circumstances of the offender.[13]

22.  Yeung JA (as Yeung VP then was) said in HKSAR v Cheung Lai Man,[14] that the purpose of a discretionary life sentence with a minimum term is twofold.  First, to protect the public, and secondly, it serves the purpose of retribution and deterrence. He stressed that a court when setting the minimum term, must have regard to the usual mitigating factors, as well as a prisoner’s possible remission for good behaviour, because a minimum term is not subject to any remission or review.[15] 

23.  In fixing a minimum term, the court should clearly have in mind that, unlike a term of imprisonment, this period had to be served and must not exceed what retribution and deterrence required, bearing in mind that ordinarily a prisoner is eligible to receive a discount on his sentence of up to one third for good behaviour.[16] 

24.  We would add, however, that a court when fixing the minimum term should also take into account the very matters that led it to conclude that an offender is likely to represent a serious danger to the public in the future. 

The calling of further evidence

25.  With these principles in mind, we were satisfied that more evidence was required to properly determine the appropriateness of a life sentence or any other sentence in light of the circumstances of the offence and the applicant.  Particularly when the judge identified, correctly in our view, that consideration should be given as to whether the applicant is of unstable character, and whether he is likely to represent a serious danger to the public in the future.

26.  We therefore called for additional evidence to address these matters, and whether in particular the applicant had any personality disorder or propensity for violence.  These matters had been touched on during the trial. 

The background facts

27.  In this case the applicant killed his elder brother in horrific circumstances, and whilst he was under the influence of methamphetamine hydrochloride, commonly known as Ice.  The killing occurred on 24 September 2014 at a restaurant in Yau Ma Tei.  The applicant and his brother were sitting at a table in the restaurant when the applicant suddenly produced a sashimi knife and stabbed and slashed his brother multiple times.

28.  The event was filmed by a CCTV camera installed in the restaurant.  It shows the applicant violently attacking his brother, stabbing him repeatedly over a period of about 10 minutes.  The wounds inflicted on the brother were horrific, and the CCTV footage shows the brother at the end of the attack lying on the restaurant floor in a pool of blood.

29.  It was an extremely violent and intense attack, resulting in an apparent partial disembowelling of the brother at the level of his abdomen, two stab wounds through his heart, a stab wound into a lobe of his lungs collapsing the lobe, and a wound through part of his liver.

30.  An autopsy report revealed that the applicant had inflicted 22 stab wounds on his brother.  The stab wounds were mainly concentrated on the chest region but there were also several cut wounds located on the left upper limb of the brother which were consistent with being defensive injuries, inflicted while he was fending off the attack. The pathologist concluded that the cause of death was multiple stab wounds to the chest which had severely damaged the vital structures and organs of the heart and the left lung and that such injuries would have been rapidly fatal.[17] 

31.  After the attack, the applicant went to the Border Control Point at Lok Ma Chau where he surrendered himself to the police.  He told the police that he had killed his brother and they retrieved from him a bag in which they found a bloodstained knife.  He was taken to the police station where a blood sample was taken from him which revealed upon analysis that it contained 600 milligrams of Ice.

32.  The applicant’s case was that he was unaware of what he had done because he was under the influence of Ice.  He said in interviews with the police and in evidence at trial that he was out of control at the restaurant because he had consumed Ice and that he carelessly killed his brother. 

33.  The applicant testified that he originally planned to go to work on 24 September 2014 but he had discovered his wallet was missing and instead spent the morning attempting to borrow money from relatives or friends.  He succeeded in borrowing $2,500 from a former employer but shortly afterwards was able to recover his wallet from the police to whom it had been handed in.  By this time, he decided not to go to work and instead contacted his brother so as to repay $2,000 he owed him. He eventually met his brother outside his brother’s place of work.  Prior to meeting his brother, he had purchased a sashimi knife as a gift for his mother.

34.  When he met up with his brother, they went to a nearby restaurant to have coffee.  He wanted to repay his brother the money that he owed him but instead his brother scolded him for having lost his wallet and asked him if he had “taken that thing again”.  He said his brother referred to the knife that the applicant wished to give his mother as “rubbish” which he took as a reference to himself.  He responded violently by repeatedly stabbing his brother, and kicking him as he left the restaurant.

35.  At the time of the offence, the applicant was living with his mother, his brother whom he killed and his brother’s partner in a public housing unit.  He had moved in with them for over a year prior to the present offence, following a failed marriage of less than one year’s duration.  The brother was 42 years old and worked as a manager at a fitness centre.  It appears that there had been issues between them over the applicant’s substance abuse. 

36.  The defence case was that there was no grudge between the applicant and his brother, and that the applicant was not aware of what he had done because he was under the influence of Ice. It was submitted that the applicant had no intention to kill or to cause serious injury to his brother, and that he had been provoked by what his brother said to him in the restaurant. 

37.  The applicant was portrayed as suffering from illicit substance abuse which affected his behaviour and resulted in incidents of violence of which he had no recollection.

The three incidents of violence at the hospital

38.  Three incidents were put forward as part of the applicant’s defence at trial to illustrate occasions where he had no recollection of having been physically violent after consuming Ice.  The applicant testified about these incidents but claimed that he had no recollection of them, other than discussing them afterwards with the doctor.

39.  The first occurred on 28 June 2014.  The applicant attended the Accident and Emergency Department of the Kwai Chung Hospital under the influence of Ice where he attempted to strangle an elderly male patient lying on the bed next to him.  The applicant had to be physically restrained by staff of the hospital in order to stop him. He was then tied up.  He was admitted to the psychiatric ward where he stayed until 4 July 2014.[18]

40.  The second occurred on 13 July 2014.  The applicant again attended the Accident and Emergency Department of the Kwai Chung Hospital under the influence of Ice where he chased after and attacked the son of an elderly woman patient.  The applicant had to be subdued by police officers, staff of the hospital and also some other patients.  The struggle was quite severe and the applicant sustained some injury to his right elbow which was put in plaster.  He was restrained in a bed for treatment and later admitted to the psychiatric ward from 16 to 18 July 2014.[19]

41.  The third occurred in the evening before the killing, on 23 September 2014.  The applicant had been admitted to Caritas Medical Centre complaining of chest pain, shortness of breath, and dizziness, as a result of consuming Ice.  He stayed at the hospital overnight where it was reported that he had suddenly slapped another patient in the early hours of 24 September 2014.[20]

The psychiatric evidence

42.  Psychiatric evidence was also called at trial by both the prosecution and the defence to address the applicant’s illicit substance abuse and how it affected his behaviour.

43.  The prosecution called Dr Bonnie Siu Wei Man, a visiting consultant psychiatrist at Siu Lam Psychiatric Centre.  She interviewed the applicant on two occasions after he was arrested.  In her report, she noted that the applicant had performed poorly at school and was eventually expelled for fighting.  He then joined the workforce but was unable to maintain steady employment.  After a broken marriage due to his substance abuse, he moved in with his mother and brother. She observed that he increased his substance abuse because of problems with his marriage, employment and finances.  She concluded that the applicant had “a history of polysubstance misuse” but with “no active psychotic symptoms”, and that “no psychiatric treatment was needed.”[21]

44.  Although Dr Siu did not dispute the overall views of the psychiatrists called by the defence, she testified at trial that she disagreed with the assessment of one of them that the applicant suffered from Dissocial Personality Disorder.  In her view, the applicant simply had a personality disorder, which was not a mental illness.[22]  However, significantly she did agree that a clinical psychologist would provide a more accurate assessment of a person’s personality structure.[23]

45.  The defence called Dr Fong Yeuk Kwan and Professor Tang Wai Kwong.

46.  Dr Fong is an associate consultant psychiatrist at Kwai Chung Hospital.  The applicant had attended and stayed at the hospital on three occasions during which she examined him seven times.  She stated in a report dated 28 January 2015 that the applicant had been diagnosed with Multiple Substance Intoxication and was suspected to have Dissocial Personality Disorder.  She noted that the applicant had been “assessed to have delusion of persecution and delusion of reference.”  She also noted that he had consumed Ice since 2012.  She described the incidents at the hospital on 28 June and 13 July 2014.  She said that in both incidents, the applicant had to be physically subdued, and that he later denied being violent after the effects of the drugs wore off.  She explained that during each stay at the hospital the applicant’s confusion subsided within two days and he no longer had psychotic features.  She mentioned that arrangements were made for the applicant to have follow-up treatment at the outpatient clinic, but he never attended.[24]

47.  In an updated report dated 23 March 2016, Dr Fong elaborated upon her medical diagnosis of the applicant. She said the applicant was diagnosed to have Multiple Substance Intoxication and Dissocial Personality Disorder, which was no longer suspected.  As to the Multiple Substance Intoxication, she said that the applicant had “symptoms of hypervigilance, argumentativeness, abusiveness, aggression, hallucinations and paranoia ideation.”  As to the Dissocial Personality Disorder, she explained that the condition could be diagnosed by clinical interview and observation but it was difficult to tell just based on appearance.  She added that a personality assessment by a clinical psychologist could give a more accurate impression of a person’s personality.  She said the applicant showed characteristics which were compatible with the condition, such as, “his callous unconcern for the feelings of others, an irresponsible attitude, a disregard of rules, incapacity to maintain enduring relationships, low threshold for discharge of violence, and incapacity to profit from adverse experience and punishment.”[25]

48.  Professor Tang is with the Department of Psychiatry at the Chinese University of Hong Kong.[26]  He testified as to the level of drugs found in the applicant’s blood at the time of his arrest.  He said it was likely that he had taken around 600 to 700 milligrams of Ice between 6 and 7 am on 24 September 2014.  He described the dosage as high, which may have caused psychotic symptoms such as losing contact with reality, delusions or hallucinations.  However, he was of the view that it was not likely that the drugs would block out a recollection of a specific time frame or event.  He was of the opinion that the claimed offensive comments were unlikely to give rise to psychotic symptoms.  He said that it was possible that the applicant was under the influence of Ice when he was first interviewed, as the effect of the drug could last more than a day and sometimes a number of days.[27]

The judge’s summing up to the jury

49.  It is necessary because of the discussion to follow to briefly mention the judge’s directions to the jury as to verdict.  In his lengthy and meticulous summing up to the jury, the judge explained that in the context of the case there were two scenarios. 

50.  The first scenario concerned the offence of murder.  The judge explained that, if the jury were not sure that the elements of the offence of murder had been proven, then the verdict was not guilty.  He said that if, on the other hand, they were sure that the elements of the offence of murder had been proven then they had to go on to consider the defence of provocation.  If they were sure that the defence of provocation did not apply to the case, then the verdict was guilty.  If, on the other hand, they concluded that the defence of provocation may apply to the case, then they would find the defendant not guilty of murder and go on to find him guilty of manslaughter.

51.  The second scenario concerned the offence of manslaughter by an unlawful act.  The judge explained that, if they were not sure that the prosecution had proven the offence of murder, then they would go on to consider the alternative offence of manslaughter by an unlawful act.  He explained to the jury that they could not convict the applicant of manslaughter unless they were sure of the following matters.  Firstly, that the applicant did an act or acts which caused the victim’s death; secondly that the act or acts were done intentionally; and thirdly, that the act or acts were such that all sober and reasonable people would have realised must subject the victim to the risk of some physical harm. The judge went on to correctly explain in greater detail the matters that they had to consider in relation to the offence of manslaughter by an unlawful act. It is not necessary to repeat his further directions. 

52.  It is important to note that the issue of diminished responsibility did not arise for the jury’s consideration because the medical evidence at trial, as well as before us, was that the applicant was not suffering with any mental illness and therefore there was no abnormality of mind operating on the applicant at the time of the offence.

53.  On the offence of murder the jury returned a verdict of not guilty by majority of five to two, and on the offence of manslaughter a unanimous verdict of guilty by unlawful act.

The applicant’s previous convictions

54.  Following the applicant’s conviction, his previous criminal record was produced.

55.  From September 1995, the applicant had previous convictions in relation to various dishonesty and driving offences as well as one for possession of drugs in November 2005, and two for particularly serious cases involving kidnapping and robbery respectively.[28] As those cases involved acts of violence it is necessary that we address them in some detail.

56.  In September 1997, the applicant was sentenced to 6 years’ imprisonment for kidnapping.  The applicant together with two other persons kidnapped a 10 years old boy from the street after he had left school.  The boy was forcibly grabbed by the applicant who hustled him into a waiting vehicle.  The boy was punched to his abdomen a number of times by one of the kidnappers.  After the applicant produced a bottle of liquid, one of the other kidnappers poured the contents of it onto a towel which he applied to the mouth and nose of the boy in order to stupefy him.  They eventually took the boy to a secluded hut and kept him captive for over five days whilst making a demand for a ransom from his parents.  The boy was made to swallow batches of pills to stupefy him during his captivity.  At various times, he was also tied to his captors to ensure he did not escape.  Ransom monies were paid but it was as a result of police surveillance the boy was located and rescued.[29]  Fortunately, the boy was not badly injured but it was nevertheless a terrifying experience for him. The applicant was 20 years old at the time of the offence.

57.  In March 2008, the applicant was sentenced to 5 years’ imprisonment for robbery.  The case involved the applicant together with another person robbing a female property agent, whom they assaulted and tied up.  They lured the woman to a flat on the pretence of wanting to rent it.  Inside the flat, they repeatedly assaulted the woman by administering blows to her head and face.  She was gagged and tied up with plastic straps after they had robbed her of her personal belongings.  At one stage, the other person produced a knife which was used to threaten the woman. The sentencing judge concluded that the offence was a premeditated, planned robbery by both defendants with a knife, intending to use violence against a lone woman and bringing along with them plastic straps to tie her hands.  On appeal, the Court of Appeal described the robbery to be “a most serious one”.[30]  The applicant was 30 years old at the time of the offence. 

Consideration of a life sentence

58.  Prior to the presentation of mitigation for the applicant, the judge indicated to the parties that he was considering imposing a sentence of life imprisonment.  The judge noted that the offence was a very serious one as evidenced by the savagery of the attack that took place.  The judge also noted that the applicant was aware of the risk of violence from his drug taking and this was supported by his violent behaviour on other occasions when in hospital.  He requested defence counsel to recall Professor Tang to give evidence on whether the applicant was a danger to society, and his prospects of rehabilitation. 

59.  Professor Tang on being recalled testified that he was of the opinion that if the applicant continued to use Ice, there was a substantial risk that further violence, regardless of the nature, would happen.  He said that as to the applicant’s rehabilitation that would depend on a structured life, including support from the applicant’s family and a stable job, but he noted that addictions were chronic conditions that tended to last a very long time.  He explained that drug addiction involved both physical and psychological dependence, and that psychological dependence was more difficult to resist upon release from custody.  He noted that supervision after release did reduce the risk of future use, but he was of the opinion that it was less likely the applicant would voluntarily comply with treatment if he had previously failed or refused to do so.  He emphasised that in general, long-term supervision or psychotherapy was important.  He was of the view that if the applicant used Ice again there was a substantial chance that further violence would happen.  He came to this view because the applicant’s personality disorder had as one of its features aggression, his previous violent behaviour and possible lack of stable employment or family support.[31]

60.  Unfortunately, neither the prosecution nor the defence sought to assist the judge further by putting before him any additional evidence or material in addressing the issue. 

Mitigation on behalf of the applicant

61.  As part of the applicant’s mitigation, the judge’s attention was drawn to a letter written by the applicant to the court.  In it the applicant said he felt deep regret and felt very guilty for what he had done.  He also said that he firmly believed he could stay away from drugs in the future and turn over a new leaf.[32] 

62.  Defence counsel also sought to distinguish the level of culpability for a conviction of manslaughter by an unlawful act as compared to manslaughter by reason of diminished responsibility in cases in which the abuse of drugs is involved.  He submitted that under the principle of proportionality, a sentence should not be increased merely to extend the period of protection of society from the risk of recidivism of the offender.  He also noted that it was difficult to protect society from the danger posed by the applicant.  He finally noted that prior to trial the applicant offered to plead guilty to manslaughter, which offer was rejected by the prosecution.  

63.  This Court was informed that the plea was offered on the basis that the applicant had a “psychotic problem” due to the influence of illicit drugs.[33] 

The judge’s reasons for sentence

64.  The judge in his reasons for sentence, having briefly described the applicant’s addiction to Ice and the circumstances leading to and including the killing of his brother, summarised the issue of the applicant’s substance abuse and the medical evidence that addressed the likelihood of him representing a serious danger to the public in the future. He said:

“The defendant’s evidence was that he had no idea of what he was doing at the time, but that, gradually, pictures, as he put it, came back to his mind. He blamed his actions upon his abuse of ‘Ice’. At trial, the defence called two psychiatrists, one of whom, Dr Fong, was a treating psychiatrist, and the other, Professor Tang, an expert on the drug ‘Ice’s effects upon an addict.

The prosecution called one consulting psychiatrist, Dr Siu. Both Dr Fong and Dr Siu agreed, both in their reports and their evidence, that the defendant was not suffering from any mental illness and was not subject to any diminished responsibility at the time of the killing of his brother. Both agreed he had a personality disorder. Dr Fong categorised it as an antisocial disorder, Dr Siu as simply a personality disorder. Neither categorisation amounted to a mental illness. Both were simply conditions which meant the defendant’s personality differed from the norm.

On the basis of Dr Fong’s categorisation of the defendant’s personality as antisocial, a categorisation with which Dr Siu disagreed, the characteristics of the defendant’s personality were, inter alia, callousness, recklessness, difficulties in forming personal relationships and a lower threshold for violence than the norm.

There was some history of the defendant’s attendance at Kwai Chung Hospital on occasions in 2014 and also at the Caritas Medical Centre, on which occasions he arrived by ambulance, complaining of chest plains. On those occasions, he was diagnosed as suffering from substance abuse and was reported to be psychotic with symptoms amounting to delusions and hallucinations. But the defendant recovered after relatively short periods of time and became stable and settled. He was then discharged. He did not require medication.

During at least three of those hospital stays, the defendant displayed signs of aggression. He, on one occasion, attempted to strangle an elderly male patient; on another, he chased and attempted to assault the son of another patient. On the occasion of his most recent admission on 23 September, the day before the offence of this case, he struck another patient. The defendant is violent when under the influence of ‘Ice’. His violence can be extreme. He said, in evidence, that he knew in advance of taking the drug that he became violence under its influence. He had, however, never sought treatment.”[34]

65.  The judge then addressed the three conditions set out in Hodgson.

66.  As to the first condition, the judge said that the attack was “sustained and ferocious” and that it was difficult to imagine a worse case of manslaughter.[35]

67.  As to the second condition, the judge noted that the applicant had a history of previous physical attacks, suffered from a personality disorder which had lowered his threshold for violence, and that he had past criminal activity that suggested the applicant by his nature was prone to violence.  He was satisfied that there was a high likelihood of the applicant committing serious crimes of violence whilst on Ice in the future, taking into account the evidence of Professor Tang, and that there was a probability he would return to drug abuse and therefore violent crimes.  He also noted that the applicant’s acts of violence had the propensity at least to involve weapons.  He referred to the present case where a sashimi knife was used to kill his brother and to the robbery offence where a knife was used to threaten the female property agent. 

68.  As to the third condition, the judge said he was satisfied that it had been met having considered the case of Attorney General’s Reference No 32 of 1996 (Whittaker),that the applicant was likely to represent a serious danger to the public for an indeterminate time.

69.  The judge stated that in passing sentence on the applicant, he took into account the applicant’s willingness to plead guilty to manslaughter and potential reward for good behaviour.

Further reports on appeal

70.  At the hearing of this appeal on 15 December 2016, the Court ordered the preparation and filing with the Court of updated psychiatric and background and social welfare reports, the medical notes relating to the three incidents of violence at the hospitals and further material relating to the applicant’s previous convictions of robbery and kidnapping, together with a report of a psychologist.  The Court made these orders to assist in assessing the applicant’s likelihood to commit further offences of violence in the future. 

71.  The applicant applied to admit into evidence a medical report from Dr Tam Mo Shing Paul, a psychiatrist, who had seen the applicant for the purpose of preparing a psychiatrist assessment report for his appeal against sentence.  This was admitted into evidence without objection pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221. 

72.  At the adjourned hearing on 15 February 2017, both parties sought time for their experts to consider each other’s reports and file further reports if necessary, which was granted by this Court.

73.  As a result, Dr Siu and Dr Fong each filed an updated report in addition to the reports they had produced at trial.  Dr Lee, a clinical psychologist of the Correctional Services Department, and Dr Tam both filed two reports for the purposes of the appeal. 

(a) Dr Fong’s updated report

74.  Dr Fong in her updated report dated 9 January 2017 reiterated what she had said in her two previous reports.[36]  She confirmed that the applicant had been diagnosed to have Multiple Substance Intoxication and Dissocial Personality Disorder.  She added that she had not clinically assessed the applicant on 23 September 2014 (the last time the applicant attended the hospital) but was of the view that he had no motivation to stop using illicit substances and therefore “his propensity for violence was high.” 

(b) Dr Lee’s reports

75.  Of all the medical experts, Dr Lee was the only clinical psychologist amongst them.  Dr Lee’s expertise is important as she is trained and equipped to conduct the necessary personality assessment that became a relevant factor in determining whether the applicant is likely to represent a serious danger to the public in the future. Dr Lee’s expertise in this regard was acknowledged by Dr Fong and Dr Tam, both psychiatrists. 

76.  In her report dated 12 January 2017, Dr Lee said that she had interviewed the applicant on three occasions.[37] She explained that she administered two psychological tests to ascertain the applicant’s personality make up and risk of violent reoffending.  She delineated the applicant’s background, mental health history, and criminal history.  She depicted the applicant as a troublesome youth who had no strong ties with his family, and who was regarded as a trouble-maker at school with no inclination to study.  He left school at a young age and joined the workforce as a trade apprentice after a year of vocational training.  From then on he was in trouble with the law and unable to maintain steady employment.  He turned to substance abuse with increased usage over time, mainly consuming Ice.  This coincided with a time when he was working in Europe.  He was married in 2012, but divorced a year later with his substance abuse being one of the reasons for his marriage breakup.  As already noted, after his divorce, he moved in with his mother and brother.

77.  Dr Lee found that the personality tests coupled with her clinical observation based on existing information pointed to a profile typical of Antisocial Personality Disorder.[38]  She considered the applicant’s remorse for his previous criminal convictions as “shallow”, and that he showed “signs of irresponsibility and impulsivity.”[39] She assessed that the applicant’s pattern of offence was likely related to his antisocial personality traits, as he had strong criminal attitudes that support his repeat offending.  She noted that his convictions for kidnapping and robbery exemplified instrumental violence, where he had used violence to achieve a personal goal such as obtaining money.  She further noted that his attacks at the hospitals and the killing of his brother appeared to relate to substance abuse.[40] 

78.  Dr Lee assessed the applicant to be of “high risk of future violence”.[41] She based her opinion on her findings from the prominent violent risk assessment scale and existing information, and went on to explain that:

“15. … His violence history since childhood, repeated violent convictions for monetary gain, multiple attacks against people after substance use, criminal peers who support antisocial behaviour and substance abuse, profound antisocial personality traits, chronic substance abuse, limited insight into personal problems and failure to seek professional help constitute major risk factors. …”

79.  Dr Lee noted that the rejection of the applicant by his family after the offence limited his social support to future community reintegration.  She went on to conclude about the applicant that:

“17. …Profound antisocial personality traits, chronic substance use and repeated violent behavior stand out in his profile. His violence history indicates he was ready to use violence for personal pursuit of monetary gain and he was prone to violent acting-out after substance use. His risk for future violence is deemed high. … his motivation for positive change was considered limited and fluctuating. …”[42]

80.  In her updated report dated 21 February 2017, Dr Lee described the nature of the two psychological tests that she had previously administered on the applicant and explained her findings. 

(c) Dr Siu’s updated report

81.  By the time of her updated report dated 14 February 2017, Dr Siu had visited the applicant on 5 occasions since her last report.[43] She had also read the reports of Dr Lee and Dr Fong.  Dr Siu noted that the applicant’s family had not visited him in prison and that he had only successfully contacted his mother once.  She was of the opinion that the applicant had strong dissocial personality traits as evidenced by his early behavioural and conduct problems and failure to change despite imprisonments and hospitalisations.  In this regard, she noted that the applicant had repeated violence under intoxication of substances but never attended psychiatric follow-up despite repeated arrangements by his psychiatrist.  She further noted that he did not have a concrete plan to maintain abstinence from substances, and he lacked social support. 

82.  In light of the foregoing, Dr Siu was of the opinion that the applicant’s propensity for violence was high.  She recommended that he receive care from a clinical psychologist for stress coping strategies and a motivational interview to work out a concrete plan to maintain abstinence from substances.

(d) Dr Tam’s reports

83.  Dr Tam’s two reports dated 11 February 2017 and 13 March 2017 resulted from two visits he had with the applicant in prison.  

84.  In his first report, Dr Tam conducted a Mini Mental State Examination on the applicant, noting that his mental state was normal.  He was of the opinion that the applicant had been addicted to Ice for over two years and was a chronic drug abuser, prone to a wide range of psychiatric symptoms including a low threshold of anger and violence, and psychotic features such as hallucination and delusion.  He also noted that the applicant had taken a high dose of drugs prior to the offence. However, he stated that the applicant was not suffering from any formal psychiatric disorder, nor did he exhibit any signs or symptoms of substance abuse. 

85.  Dr Tam was of the opinion that the applicant did not need psychiatric treatment, but because he was a proven drug abuser what he needed was a planned programme to help him stay off drugs.  He considered that the applicant was genuinely remorseful.  He was therefore of the view that the applicant was not dangerous at present because he was not suffering from any mental illness or drug addiction. 

86.  As to whether the applicant would be dangerous after release, Dr Tam said that this was not an easy question to answer, and would depend on the applicant’s determination to stay off drugs, his family support, the support from his friends and the effectiveness of his rehabilitation programme.  He felt that the rehabilitation programme in Kwai Chung Hospital had improved significantly.  He was therefore encouraged that the applicant could be rehabilitated from his drug addiction.  However, he placed the caveat that he could only speculate on the applicant’s prospect of rehabilitation.  On this issue, he noted that the applicant had friends who were willing to give him a job at a funeral parlour, and hoped that the applicant’s family who were refusing to have contact with him would accept him back into the family. 

87.  Dr Tam concluded the applicant did not suffer from Antisocial Disorder.  By reference to the 10^th edition of the International Classification of Diseases, he considered the features attributed to Asocial Personality Disorder patients and he concluded that the applicant did not exhibit these features by at least the following points:

“a. Incapacity to maintain enduring relationships: I just mentioned that he has close friends who knew him for years and who turned up in court to support him.

b. Mark proneness to blame others for his behavior: He admitted his guilt fully.

c. Incapacity to experience guilt: He was loaded with remorse for what he did.

d. Callous unconcern for the feeling of others: He was deeply sorry for his guilt and the effect on his family, especially to his mother.”[44]

88.  We should point out that Dr Tam’s assessment of these features was discussed when he gave evidence which is dealt with in greater detail later in the judgment.  It is worth noting that Dr Tam addressed four out of six features attributable to persons with Asocial Personality Disorder. 

89.  In his second report, Dr Tam noted that the applicant in prison had participated in Christian activities and signed up to take part in the Violent Offender Orientation Programme but failed to join the group due to illness.  He felt that Dr Siu’s opinion on the applicant’s lack of concrete plan to abstain from substance abuse should actually come from a joint effort of the applicant and the staff at the Correctional Services and eventually the Social Welfare Department.  He was of the view that Dr Siu had failed to consider the monitors in place during the rehabilitation process.  He made the same observation about Dr Lee’s report, although he frankly acknowledged that he was not in an ideal position to comment on her actual tests and ratings, but observed that the risk factors were subjective and open to interpretation. 

90.  Dr Tam reiterated that the applicant was remorseful, and it was his opinion that the applicant’s abstinence from drugs for over two years, and his imprisonment, had reduced his propensity for violence.  He added that if the applicant was able to participate in a meaningful rehabilitation programme, there is “no indication for life sentence”.[45] He was of the view that no one should be considered beyond rehabilitation, and it would be difficult to motivate a person to rehabilitate if he is going to be imprisoned for life.  In light of the foregoing, he recommended that a specific term of imprisonment be imposed.

(e) Background report

91.  In an updated background and social welfare report dated 12 January 2017, it was stated that the applicant had two friends who would help him after his release from prison.  One of his friends owned a funeral service company, while the other friend worked there.  It was noted that they said they were willing to offer him part-time employment and provide him with a place to stay through another friend.[46] The two friends had known the applicant for over 9 years and prior to the present offence they would regularly get together. 

92.  We have been provided with background particulars of the two friends, who both have criminal records for minor offending.  The applicant’s friendship with these two men goes back to several years before the present offence when his illicit substance abuse and violent behaviour appears to have been at its most intense.  We are not satisfied that they can provide the kind of support to the applicant required after his release from prison to steer him in the right direction so that he is not a serious danger to the public. 

The oral medical evidence on appeal

93.  The medical experts, Dr Fong, Dr Lee and Dr Tam gave oral testimony before us.  Dr Siu was not required to be examined by the parties. 

(a) Dr Fong’s evidence

94.  Mr Michael Blanchflower, SC, who did not appear for the applicant in the lower court, took issue with Dr Fong in relation to her diagnosis that the applicant had Dissocial Personality Disorder and her view as stated in her third report that because the applicant had no motivation to stop using illicit psychoactive substances therefore his violence propensity was high. 

95.  Dr Fong mentioned in her first report that whilst the applicant expressed motivation to stop abusing illicit substances he did not attend the arranged follow up treatment.  She was then referring to the last time she saw the applicant when he attended the hospital in July 2014.  In her evidence before us, she confirmed that the applicant attended the hospital on three occasions in May, June and July 2013 for substance abuse, and each time follow up treatment was arranged which he did not attend. 

96.  Dr Fong explained that she did not see the applicant when he next attended the hospital on 23 September 2014 and therefore did not clinically assess him on that occasion.  Her medical opinion therefore addressed the applicant’s attendances at the hospital up to July 2014.  It is to be remembered that the defence called Dr Fong to give evidence about the two incidents at the hospital on 28 June and 13 July 2014 to show that the applicant had no recollection he had been physically violent whilst under the influence of illicit substances. 

97.  Dr Fong explained before us and at trial that in her first report dated 28 January 2015 the applicant was diagnosed to have Multiple Substance Intoxication and suspected to have Dissocial Personality Disorder.  However, as we have already noted, in her second report dated 23 March 2016 she addressed in detail the diagnosis of Dissocial Personality Disorder.  In that report, she explained that Dissocial Personality Disorder could be diagnosed by clinical interview and observation by experienced mental health professionals but a personality assessment by a clinical psychologist could give a more accurate and detailed impression about a person’s personality structure.  She explained that that was not performed for the applicant but he showed characteristics which were compatible with the diagnosis, such as his callous unconcern for the feeling of others, irresponsible attitude and disregard of rules, incapacity to maintain enduring relationships, low threshold for discharge of violence, and incapacity to profit from adverse experience and punishment.  She explained in her report and before us that it was difficult to base such a diagnosis on appearance.  She confirmed that she diagnosed the applicant to have Dissocial Personality Disorder which she reiterated in her third report after having discussed the applicant’s case with her senior and consultant. 

98.  Dr Fong agreed with Mr Blanchflower that she did not have the benefit of a personality assessment by a clinical psychologist and that was why she could not be sure of her diagnosis. She said that a personality assessment would give a more accurate diagnosis. 

(b) Dr Lee’s evidence

99.  As already noted for the purpose of this appeal, a psychological assessment had been conducted on the applicant by Dr Lee who in her comprehensive report and in her evidence before us explained her diagnosis that the applicant had Antisocial Personality Disorder.  She confirmed that she administered two tests on the applicant in order to ascertain his personality make up and risk of violent reoffending. She was taken through her report by counsel, and she explained her opinions and findings.  She was clearly of the opinion that the applicant had Antisocial Personality Disorder.  She explained that she used the terms “diagnosis” and “traits” interchangeably when discussing the disorder in her report. 

100.  As to the applicant’s future prospects of rehabilitation, particularly in relation to quitting his substance abuse, Dr Lee was not positive.  She pointed to his history of substance abuse and his inability to quit in the face of urgings from his mother and brother, and the risk of a failed marriage.

101.  Dr Lee’s evidence was authoritative on the issue of the applicant’s personality disorder.  She was the only clinical psychologist amongst the medical experts who is trained and equipped to perform a personality assessment.  This was acknowledged by the other medical experts. 

102.  We have no hesitation in accepting Dr Lee’s findings and conclusion in her report which she reinforced in her evidence before us.

(c) Dr Tam’s evidence

103.  In his evidence, Dr Tam confirmed that he first saw the applicant on 7 February 2017 for one and a half hours, and then on a second occasion on 9 March 2017 for two and half hours after having reviewed the reports of Dr Siu and Dr Lee. 

104.  Dr Tam described the applicant’s progress in prison, and noted, amongst other things, that under the applicant’s rehabilitation programme, he had joined the Violent Offender Orientation Programme. He said that the applicant had signed up immediately and was keen to participate in it, although he acknowledged that the applicant had failed to join the programme because of illness.  However, according to the authorities at the prison, this was not the case.  It seems what happened was that the applicant initially showed interest in the programme but on the appointed day he refused to attend without any apparent reason.  It was in a follow up interview several days later that he attributed his refusal to participate in the programme because he was unwell.

105.  Dr Tam agreed with Dr Siu that the applicant has no active psychotic symptoms and has dissocial traits that had not reached the stage of Antisocial Personality Disorder.  He placed significance on the rehabilitation programme that would be available to the applicant, but at the same time acknowledged that it would involve effort on his part. 

106.  Dr Tam confirmed that his purpose of consulting the applicant was to assess whether or not he was suffering with any mental disorder.  On the other hand he acknowledged that Dr Lee had the advantage of seeing the applicant for a longer period, and was in a better position to assess any personality disorder with the applicant as she had available to her a test which is under strict protection and not normally available to a psychiatrist.  He also frankly accepted that he took what was told to him by the applicant at face value, acknowledging that there had been no independent evaluation or verification of what he had been told. 

107.  Dr Tam explained that he performed a standard general test to determine if the applicant had any formal mental problem.  The results showed the applicant’s mental state was normal.  He agreed however that from the test he could not conclude whether or not the applicant had Dissocial Personality Disorder. 

108.  Dr Tam accepted that a key question was whether the applicant would be a dangerous person after his release from prison and that this was not an easy question to answer.  He agreed he had not addressed the risk factors for future violence that Dr Lee mentioned in her report.  He confirmed that he addressed four out of the six features associated with Asocial Personality Disorder,[47] accepting that the other two features were present in the applicant’s case.  He agreed that he was ambivalent about the four features he addressed in the sense that they were “plus or minus”, thus accepting there was a wider margin in his assessment of the applicant.  He also acknowledged that a person would be suffering from the disorder as long as three of the six features were present.  It meant that according to Dr Tam, at least two features were present, whilst he was ambivalent as to the other four features.

109.  Before we leave this section of our judgment, we wish to acknowledge the candid and professional manner in which the medical experts gave evidence before us, and by so doing greatly assisted us in this appeal.  It is to be expected that experts will have differing opinions on key matters even though there may be considerable common ground between them.  They should not be discouraged from expressing their genuinely held opinions.  A court’s role is to evaluate and assess all the evidence including differing expert evidence that may be presented, and where there is conflict in the evidence or differences of opinion they must as a matter of course be appropriately addressed and resolved. 

The submissions on sentence

110.  Mr Blanchflower, for the applicant, advanced two grounds of appeal against sentence challenging the correctness of the life sentence and the minimum period of 15 years’ imprisonment. 

The life sentence

111.  Mr Blanchflower on the first ground of appeal concerning a discretionary life sentence made four points.  First, the judge failed to take into account all relevant matters. Secondly, the judge erred in applying the Hodgson conditions.  Thirdly, determinate sentences have been imposed in similar cases.  Fourthly, the judge proceeded upon the mistaken basis that the applicant suffered from Dissocial Personality Disorder. 

112.  To a large extent, these grounds have been overtaken by events because as acknowledged by Mr Blanchflower, this Court has now ordered the necessary reports that he submitted should have been ordered by the judge.  Accordingly, this Court is in a position to consider afresh the sentence to be imposed on the applicant.  However, it is necessary that we address the grounds advanced by Mr Blanchflower as they may have a bearing on the sentence that we decide should be imposed on the applicant.

(i) Failure to take into account all relevant matters

113.  Mr Blanchflower’s first complaint is that the judge failed to order psychiatric and presentence reports specifically addressing the applicant’s future risk of violence and prospects of rehabilitation. 

114.  We note, however, that the judge invited the parties to address the issue of a discretionary life sentence, but neither of them put any additional material before the judge to assist him in deciding on the issue. It was the judge who requested that Professor Tang be recalled to address the applicant’s risk of violence and prospects of rehabilitation.  We also note that the parties seemed content to rely on the evidence and material touching on these matters that was then before the judge.

115.  In any event, we now have the benefit of the additional reports, and are in a position to make our own assessment as to the applicant’s unstable character and violent disposition, and to pass an appropriate sentence. 

116.  Mr Blanchflower’s second complaint is that the judge failed to take into account various mitigating circumstances. He lists eight matters, and we will discuss each in turn.

117.  The first is that the killing was spontaneous and there was no premeditation.  The footage of the attack which lasted for over 10 minutes shows the applicant persistently stabbing or slashing at his brother as he lay defenceless on the floor of the restaurant.  The violence the applicant inflicted on his brother was callous and brutal in the extreme.  The spontaneity of the killing is therefore of little significance when one considers that this was a sustained and savage attack by the applicant.

118.  The second is that the applicant was under the influence of a high dosage of Ice leading to his violent behaviour.[48] The evidence revealed that the applicant had an addiction to Ice and had consumed a high dosage of it prior to the killing.  The medical experts did not go as far as to suggest that the applicant’s responsibility for his actions must be treated as diminished because of an abnormality of mind due to his drug addiction.  They said that he was not suffering from any mental illness and that is why diminished responsibility was not an issue at the applicant’s trial.  In cases of manslaughter on the basis of diminished responsibility where the offender at the time is suffering from a drug induced psychosis, it still remains, as noted by Stock VP, that he must generally “be treated as carrying responsibility for that state of affairs, especially where he has sought no assistance to take himself out of the cycle.”[49]  

119.  Mr William Tam, SC,[50] counsel for the respondent, argued that the applicant bore a high degree of responsibility for his actions because he had repeatedly declined treatment of his drug addiction, even though he had a history of violent episodes under the influence of Ice. The violent episodes he was referring to were the three hospital incidents.

120.  The third is that the verdict of manslaughter meant that the applicant had no intention to kill or cause serious harm.  As pointed out by Mr Tam this is seeking to double count in the applicant’s favour a matter that had already been taken into account.  The drug induced state of the applicant at the time of the killing has already had that recognised by the conviction for manslaughter rather than murder.[51]  The verdict of the jury was that the applicant was guilty of manslaughter by an unlawful act.  The judge directed the jury that in order to arrive at this verdict they had to be sure that the defendant did the act which caused his brother’s death; that the act was done intentionally; and that the act was such that all sober and reasonable people would have realised must subject the brother to the risk of some physical harm.[52] It was on this basis that the jury arrived at its verdict taking into account all the facts and circumstances of the case as reflected by the evidence at trial.

121.  The fourth is that there was evidence of provocation.  The evidence of provocation came from the applicant who said that when he showed his brother the knife that he bought as a gift for their mother, the brother said “rubbish” and he took it as a reference to himself.  The jury by its verdict did not accept that the applicant had been provoked into killing his brother.  We do not see how this can be categorised as a mitigating matter, and we agree with Mr Tam’s submission that such provocation claimed by the applicant was an overreaction.

122.  The fifth is that the applicant did not suffer from any mental illness.  Again we do not see how this can be categorised as a mitigating matter.  Mr Blanchflower seemed to be suggesting that because the applicant does not suffer from a mental illness, he is not therefore mentally unstable and dangerous.  The obvious answer to this submission is that a person does not have to have a mental illness to be of unstable character.  Such an argument was rejected by the English Court of Appeal in R v Worek,[53] where it was held that the imposition of a life term was not confined to cases where the offender had a mental illness.  Mr Blanchflower relied on cases where the offenders were no longer suffering from the mental illness they had at the time of the offence which was taken into account when considering whether to impose a life sentence. In the present case, the applicant did not suffer from a mental illness at any time.  His circumstances are quite different.  He has a history of violent behaviour and of substance abuse.  He also has a personality disorder that makes him prone to antisocial and aggressive behaviour.  This all ultimately goes to the question as to whether the defendant is of unstable character.

123.  The sixth is that the killing of a close relative was severe punishment in itself.[54]  As rightly pointed out by Mr Tam, this has not been recognised as a mitigating factor, nor should it be.  Unfortunately, most homicide cases are domestic in nature and arise from an infinite variety of circumstances and situations.  Each case has to be assessed on its own particular set of facts and circumstances.  It is difficult to really know whether someone is regretful or remorseful for what they have done.  To the extent to which it should be a factor that is taken into account will very much depend on the particular circumstances of the case.  In this instance, in our view, the nature and timing of the remorse is such that it deserves little weight.

124.  The seventh and eighth can be dealt together, namely that the applicant took immediate responsibility for the killing and voluntarily surrendered to the police, and that he showed remorse by offering to plead guilty to manslaughter.  It is true that the defendant surrendered to the police but oddly having travelled to the border to do so.  It is also true that he offered to plead guilty to manslaughter but it would appear on the basis of diminished responsibility because of a drug induced psychosis.  It is also the case that there was no question but that the applicant killed his brother.  The entire event was captured on CCTV footage.  As we have already mentioned, the applicant’s acceptance of responsibility and display of remorse must be considered in the context of the case, particularly where the court is tasked to determine whether he poses a serious danger to society in the future.

125.  Mr Blanchflower described the listed matters as countervailing factors, adopting the term used by Stock VP in Chiu Wai Kan Vicken (No.2), and submitted that when taken together do not suggest a punishment where an indeterminate sentence is justified. 

126.  From our point of view, the problem with this approach is twofold.  First, in some instances the listed matters are neither correctly described, nor correctly categorised as mitigating circumstances, and in other instances they are matters deserving little weight.  Secondly, this approach is only based on a consideration of the countervailing factors as described by Mr Blanchflower and is not in accordance with the test that he correctly noted, which is “whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate time.” (Italics added)

127.  A consideration of all the facts would include, amongst other things, the applicant’s self-induced abuse of drugs and refusal to seek treatment in the past, and his personality disorder or traits which makes him prone to violence, even when not under the influence of drugs.  There is also the opinions of the medical experts, except for one, that there is a high risk that the applicant will perpetrate violence in the future. 

(ii) Errors in applying the Hodgson conditions

128.  Issue was also taken by Mr Blanchflower as to the judge’s application of the second and third conditions of Hodgson. 

129.  As to the second condition, he submitted that the judge had erred in basing the applicant’s risk of serious violence on future contingencies, namely the applicant’s lack of family support and stable employment in the future, which were based on the judge’s own assumptions of conditions that would prevail upon the applicant’s release.  He argued that this involved speculating about the circumstances in the future. 

130.  Critical to the issue of the applicant’s prospects of rehabilitation according to the medical experts is the support and stable environment that he is able to secure for himself in the future.  It will require the sentencing court weighing up what is known now in order for it to make some assessment of the likelihood of the applicant engaging in violent behaviour in the future. 

131.  Mr Blanchflower relied primarily on the background and social welfare report to argue that the applicant would have the necessary support from family and friends so as not to return to drugs after he is released from prison.  On the evidence before us, we are satisfied that it is not likely that the applicant will seek and obtain the necessary support to make the changes necessary to himself and his lifestyle. The background report refers to the applicant’s family being very upset with him but that they would try to forgive and support him in the future.  This is more a positive expression of hope than a realistic assessment of fact.  On what we have before us, it appears the applicant’s family have distanced themselves from him and that is not likely to change.  They have not visited him whilst he has been in custody and have not attended his court hearings. The background report also refers to his two friends who have offered him work and a place to live after he is released from prison, but as we have already noted, his two friends have criminal records and were friendly with him during the period he was engaging in substance abuse and having episodes of violent behaviour.

132.  Mr Blanchflower also submitted, relying on Chiu Wai Kan Vicken (No.2), that when a life sentence is imposed it should not be by way of preventative detention and that the supervisory and rehabilitative regime that would be in place to assist the applicant provided an adequate measure of protection of the public to warrant a determinate sentence.  Ultimately, this will depend on the applicant’s commitment to rehabilitate himself, and this is best assessed by his past involvement in rehabilitative programmes and his general attitude and character.  On the evidence before us, we are not satisfied that his prospects of rehabilitation look favourable.  In fact, the evidence is to the contrary.

133.  Mr Blanchflower relied on Attorney-General’s Reference No 39 of 1995 (Kenneth Grey)[55] to suggest that a life sentence was not appropriate in the present case.  That was a case of manslaughter by reason of diminished responsibility as a result of a drug-induced psychosis.  Lord Taylor CJ said that it would be an extension of the principles in relation to a discretionary life sentence where an offender is not presently in an unstable state but may become so if he resumes a course of drug abuse which he has followed in the past.[56] He was not precluding the possibility of a life sentence being imposed in such a case, but rather commenting on the application of the sentencing guidelines that were developing for the imposition of such a sentence.  In fact, there have been cases where a life sentence has been imposed where the offender was convicted of manslaughter by reason of diminished responsibility because of a drug induced psychosis.[57]  This line of argument advanced by Mr Blanchflower was specifically rejected by the Court of Appeal of England and Wales in Worek, and we are somewhat surprised that it was repeated before us.[58]

134.  Mr Blanchflower also submitted that the judge erred in relying upon the applicant’s three incidents of violence at the hospital while under the influence of Ice.  He contended that the incidents did not constitute serious violence, nor were they the subject of charges against the applicant or proved beyond reasonable doubt.[59]  His criticism of taking into account the three hospital incidents when addressing whether the applicant has a violent disposition, is misconceived in various respects.  These incidents evidenced the fact that when under the influence of illicit drugs the applicant has engaged in gratuitous acts of violence.  Contrary to his submissions, these incidents were not minor as they only ceased, and did not escalate into something more serious, after the applicant had been subdued. 

135.  Such matters, as reflected by these three incidents, do not have to be the subject of charges or a criminal conviction in order for them to be considered by a sentencing court.  It is entirely proper for the court to take into account such matters, as long as they are supported by credible and reliable information or material or have been agreed, so that a court is sure of them.  As we have noted these incidents were admitted into evidence by the defence at trial.  We have also been provided with ample supporting information and material in relation to each one of them to accept without reservation that the incidents as described have taken place.  In oral submissions, Mr Blanchflower acknowledged that he was not taking issue in relation to the incidents having taken place, but rather as to their relevance to the determination of the sentence.[60]  We were satisfied that these incidents occurred as described and that they should be appropriately considered when passing sentence on the applicant.

136.  As to the second condition of Hodgson, Mr Tam submitted that the applicant’s criminal record of serious violence was highly relevant.  It evidenced that the applicant is of an unstable character who is likely to commit further offences of the same kind.[61] He noted on the issue of rehabilitation, that since the applicant’s imprisonment in 2014, there had been no positive change, and he remained highly evasive with Dr Lee and Dr Siu about his past wrongdoings.  He also stressed that his family had not visited him in prison and therefore were unlikely to provide him the support necessary to lessen the chances of him remaining a serious danger to the public.  He also noted that the applicant’s friends mentioned in the updated background and social welfare report who were to provide him with support and accommodation had criminal records, and the funeral parlour that was to provide him with employment upon his release from prison was not registered under the applicant’s friend’s name.  He therefore contended that the highly uncertain and limited social support for the applicant coupled with his unpromising prognosis made it impossible to conclude that he would cease to be a serious danger to the public within a determinate period.

137.  As to the third condition in Hodgson, Mr Blanchflower argued that this condition requires that if offences are committed in the future, “the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence”, and that it is an error to consider any sexual offence or any offence of violence as being “specially injurious”.  He went on to submit that common assault, such as the violent incidents at the hospitals, were not “specially injurious”, and that repetitive violent offending at a relatively low level without serious harm did not itself give rise to a significant risk of serious harm in the future.[62]  He further submitted that the judge erred in relation to other matters by taking into account the use of a knife in the applicant’s robbery conviction (which according to the Summary of Facts was used by the co-accused) and the possession of a paper-cutter upon his arrest in the present case (which had not been admitted into evidence at trial). 

138.  We do not agree with Mr Blanchflower’s description or categorisation of these matters.  As we have already stated the hospital incidents fortunately did not result in serious injury to the victims because the applicant was subdued on each occasion.  In any event, the approach suggested by Mr Blanchflower is misconceived, and does not correctly focus on the issue that a sentencing court is required to consider.  It is not an exercise of merely looking back to see whether the offender has committed serious offending in the past, in order to assess whether he is likely to commit serious offending in the future.  It may be a sufficient indicator that that will be the case, but equally he may have no previous record of any or any serious offending, but on what is known he nevertheless poses a serious danger to the public in the future.  It will as required involve a consideration of all the facts. 

139.  The reference Mr Blanchflower makes to the other matters ignores the violence that was perpetrated either by the applicant or together with another or others in two very serious crimes of kidnapping and robbery.  As to the paper cutter, it did not feature as a matter of any significance when the judge passed the life sentence on the applicant.[63]  There were, and are, far more serious matters that warrant consideration in assessing whether the applicant is of unstable character.  Such an assessment is not assisted by looking at matters in isolation, but rather by making a realistic and holistic assessment of the facts and circumstances to determine whether the applicant will be a serious danger in the future. 

140.  Of the third condition in Hodgson, Mr Tam submitted that the applicant sought to downplay the seriousness of his previous convictions, and completely ignored the manner in which his brother was killed.  He referred to the evidence of Professor Tang, who was of the opinion that there was a substantial chance that the applicant would engage in further violence, such violence being of a “substantial degree”. 

(iii) Determinate sentences in similar cases

141.  Mr Blanchflower invited the Court to have regard to the judgments of this Court and the sentences imposed by judges in the Court of First Instance in comparison to the applicant’s sentence: HKSAR v Chiu Wai Kan Vicken (No.2),[64] HKSAR v Chan Chung-fai,[65] HKSAR v Chu Ka-ho,[66] HKSAR v Sin Kwai Ching[67] and SJ v Wan Hoi Ming.[68]  Having regard to that material, he argued that the applicant should be given a determinate sentence. 

142.  Mr Tam distinguished the cases relied upon by Mr Blanchflower.  He submitted that the cases of Wan Hoi-ming, Chan Chung-fai and Chu Ka-ho all involved instances where the actions of the applicants were out of character with no evidence of them having a violent disposition.  The case of Sin Kwai-ching was an isolated incident of killing under provocation.  We have already discussed how Chiu Wai Kan Vicken (No.2) differs in its circumstances from the present case. 

143.  As has been stated by this Court time and again, except when addressing principle, making a comparison of sentences is not a helpful exercise as each case will necessarily involve applying relevant sentencing principles to the particular circumstances of the offence and the offender.  Every case will naturally be different and will therefore be fact and case sensitive. 

(iv) Dissocial Personality Disorder

144.  Mr Blanchflower submitted that the judge sentenced the applicant on the mistaken basis that he suffered from Dissocial Personality Disorder.  He argued that this mistake was influential when the judge imposed the life term on the applicant.  He noted that at the trial the psychiatric evidence came from Dr Fong and Dr Siu.  He said that Dr Fong in her first report stated that she suspected the applicant had Dissocial Personality Disorder, and in her second report that the applicant showed characteristics compatible with the diagnosis, and that it was difficult to tell based on appearance.  He complained that the judge when questioning Dr Fong, assumed the applicant had a personality disorder but this was not corrected by Dr Fong.  It is understandable that Dr Fong did not correct the judge because in her second report she stated that she had diagnosed the applicant with the disorder. 

145.  As noted by Mr Blanchflower, Dr Siu in her testimony disagreed with Dr Fong’s diagnosis that the applicant suffered with the personality disorder, and in her opinion the applicant may have “personality difficulties or problems”.  

146.  As to the most recent reports, Mr Blanchflower noted that Dr Fong had not seen the applicant since July 2014, that Dr Siu stated that the applicant has a high propensity for violence at this juncture, and that Dr Lee was of the opinion that the applicant’s profile is typical of Antisocial Personality Disorder.  He also noted that with existing information Dr Lee’s assessment of the applicant “suggests a high risk of future violence” and that he shows “profound antisocial personality traits”.  He also highlighted that Dr Lee noted that since “reoffending risk is dynamic, risk reassessment is worth considering should new information arise.”

147.  Mr Blanchflower submitted that the recent reports showed that the applicant does not have a psychiatric disorder and no psychiatric treatment is needed.  He noted that both Dr Siu and Dr Tam agreed that the applicant showed traits of Antisocial Personality Disorder, but he stressed that this was not the same as having an Antisocial Personality Disorder.

148.  Mr Tam argued that the applicant was correctly diagnosed with Dissocial Personality Disorder, and in any event warrants a life sentence in light of the circumstances of the case or a reappraisal of the medical and other evidence as to his unstable character.  He submitted that, given the new material which was not available to the judge during sentencing, this Court should consider the applicant’s sentence afresh.

149.  We have previously set out in detail the contents of the reports of the doctors and, with respect, we do not feel that Mr Blanchflower’s analysis provides an accurate and complete description of their respective opinions.  In any event, we have had additional evidence presented on the issue and as we will explain later we are satisfied that the applicant has Dissocial or Antisocial Personality Disorder.

The minimum term

150.  The second ground concerned the 15 years’ minimum term of imprisonment.  Mr Blanchflower submitted that this was manifestly excessive, equating to a starting point of about 22½ years’ imprisonment.  He contended that no cases of manslaughter in Hong Kong with similar circumstances of offence and offender could be found with a sentence of that length.  He argued that the purpose of a minimum term is retribution and deterrence, and when imposing a minimum term, the court should have regard to the usual mitigating factors, such as a guilty plea, and possible remission. 

151.  On the issue of the minimum term, Mr Tam submitted that the judge properly followed the sentencing authoritiesin arriving at the minimum term of 15 years’ imprisonment.[69]  

152.  A life sentence also takes into account retribution, punishment and protection of the public, and Mr Blanchflower submitted that care must be taken not to incorporate into the minimum term an element of risk already covered by the life sentence.  We do not agree with such a proposition.  A court having determined that an offender is likely to represent a serious danger to the public for an indeterminate time, would be obliged to take into account the very matters that have led the court to come to such conclusion in fixing a minimum term in order to address retribution and deterrence.  It is not a question of double counting but of taking into account the element of the risk that is both relevant to the life sentence and the minimum term to be served.

Discussion

153.  It is the case that a sentencing court needs to make an assessment from “all the facts” as to whether the applicant is likely to represent a serious danger to the public in the future.  The court performs this task, as we have stressed at the outset of our judgment, by ensuring that all relevant matters have been properly addressed through the presentation of credible and reliable information and material. There is a serious issue of public safety that has to be determined by the court, as best it can, on what is then known.  The process does not end there as an offender’s progress will be monitored and evaluated by those who have him under their supervision in prison.

154.  The judge in our view was right to be concerned about the risk the applicant poses as a serious danger to the public in future.  He sought to address the issue on the information and material before him as well as requesting further evidence from Professor Tang.  However, we are of the view that additional medical evidence was required to address the issue of any personality disorder and any other matter that went to establish the likelihood of the applicant representing a serious danger to the public in the future.  It is for this reason that we shall allow the appeal, and therefore it falls on this Court to pass sentence afresh on the applicant.

155.  We have extensively addressed the medical evidence and related matters.  In sentencing the applicant afresh, we have taken into account all the relevant facts and circumstances, as well as the submissions from the parties. 

156.  We first considered whether the applicant had been convicted of an offence of a degree of seriousness which might properly be regarded as meriting a life sentence. Given the nature and circumstances of the offence, we, like the judge, had no hesitation in concluding that such a crime had been committed by the applicant. As we have stated, the present offence involved the applicant brutally killing his brother with a knife during a sustained and violent attack.

157.  We next considered whether there were good grounds for believing that the applicant might be a serious danger to the public for an indeterminate time.

158.  One of Mr Blanchflower’s major criticisms of the sentence imposed by the judge was that he mistakenly assumed that the applicant suffered from Dissocial Personality Disorder and this influenced him when he imposed a life term on the applicant. He mainly relied on the views of Dr Siu and Dr Tam who were of the opinion that the applicant showed traits of Antisocial Personality Disorder.  In consequence, he stressed that showing traits of the disorder was not the same as suffering from it.  Of the two, Dr Tam was called to testify before us.  He acknowledged that he had not performed the test that Dr Lee had which assessed the personality of the applicant.  When Mr Blanchflower cross-examined Dr Lee, it was clear that she was firmly of the view that the applicant suffered with the disorder.  Dr Lee had the relevant expertise and performed the relevant tests to more accurately determine whether or not the applicant was suffering with the disorder.  This was a point that was readily acknowledged by Dr Tam. Dr Siu in her evidence at trial also acknowledged that a clinical psychologist would be in a better position to make a more accurate assessment of a person’s personality structure.  Dr Fong, who did diagnose the applicant with the disorder, also acknowledged that a clinical psychologist would be able to make a more accurate assessment of a person’s personality structure.

159.  Dr Lee in her evidence before us explained that she was of the opinion that the applicant had Antisocial Personality Disorder, even though in her report she used “diagnosis” and “traits” of the disorder interchangeably.  Having carefully considered her report and her testimony, we are satisfied that the applicant suffers with Antisocial Personality Disorder.  One of the features of the disorder is aggression, and the common view of the doctors, except for Dr Tam, was that the applicant had a high propensity for violence.  Although, Dr Tam acknowledged that whether the applicant would be a dangerous person after his release from prison was not an easy question to answer.

160.  As explained by Professor Tang, the prospects of the applicant’s rehabilitation would depend on him living a structured life where he had support from family or friends and maintained a stable work environment.  As to the applicant’s drug dependency, Professor Tang explained that the problem was psychological dependence, which was dependent upon a desire by him to address the problem with appropriate treatment. 

161.  The applicant has a past record of serious crimes of violence and a long history of drug addiction.  The applicant has refused to take part in any drug treatment previously offered to him and this was verified by Dr Fong.  Even during the course of these proceedings, the applicant had refused to attend a Violent Offender Orientation Programme without any explanation, although he claimed some days later that he was ill.  The overall assessment of the applicant by the medical experts is that he presents as a person who is prone to violence and that there is a high risk that he will engage in violent behaviour in the future. 

162.  Looking at the whole of the applicant’s history and the circumstances of the present case, we have come to the conclusion that he is likely to represent a very grave danger to the public.  His past aggression and violent behaviour are highly significant which is exacerbated by a real concern that if he resumes a course of substance abuse which he has followed in the past there is a risk that he will offend again by committing violent crimes.  His past usage and dependence of illicit substances is disturbing given the issue with psychological dependence as described by Professor Tang and the apparent lack of social and family support and the unwillingness on his part to rid his dependency on illicit substances.  As Professor Tang observed previous violence predicts further violence and on what we have before us this is unfortunately true in the applicant’s case.  It is clear that he poses as a serious danger to the public because of his violent disposition.  The public are entitled to be protected and it is the duty of the courts to make sure that this is done.

163.  As we have already mentioned, the additional medical evidence sought to address whether the applicant is of unstable character with Dissocial or Antisocial Personality Disorder and a propensity towards violent behaviour.  We are satisfied that this has been clearly established.  We are satisfied on the evidence before us that the applicant’s prospects of rehabilitation and ceasing his drug dependency after he is released from prison do not look promising. 

164.  We are also satisfied that on the evidence before us it is established that the applicant has a propensity for violence, particularly when under the influence of illicit substances, to represent a serious danger to the public in the indeterminate future. 

165.  On the issue of the minimum term, the principal task of the court is to fix a term addressing the punitive and deterrent element dictated by the offence and the current circumstances of the applicant.  The judge imposed a minimum term of 15 years’ imprisonment and this corresponds to a starting point of 22½ years’ imprisonment. 

166.  We have borne in mind that the minimum term is not subject to any discount and is the term that the applicant must actually serve. 

167.  We are of the view that in light of the circumstances of the offence and of the applicant, the minimum term imposed by the judge was correct.  As we have previously noted, the minimum term is the term of imprisonment that the offender must actually serve before release.  We feel that a minimum term of 15 years’ imprisonment rightly addresses the punitive and deterrent elements dictated by the factual circumstances of the present offence and the personal circumstances of the applicant. The applicant committed a brutal killing.  He is a repeat offender of violent crimes and his personal circumstances offer little hope of rehabilitation in the immediate and long term future.  The minimum term seeks to serve the important elements of retribution and deterrence for the crime that the applicant has committed.

Conclusion

168.  For the reasons we have given, we allow the appeal but in sentencing the applicant afresh we conclude that in all the circumstances of this case, the appropriate sentence to be imposed on the applicant is life imprisonment with a minimum term to be served of 15 years’ imprisonment.  Whilst we have imposed the same sentence as the judge, as we have made clear we have arrived at our decision having had the benefit of detailed additional medical evidence and extensive submissions from the parties.