CRIMINAL CASE NO. 334 OF 2010
COURT: The defendant, Tse Kam-fai, was charged with one count of manslaughter, contrary to Common Law and punishable under section 7 of the Offences against the Persons Ordinance, Cap. 212.
He pleaded guilty before me. I convicted him of manslaughter after he admitted to the Summary of Facts read out to him and after I was satisfied that the Summary of Facts supported the plea of manslaughter tendered.
Summary of Facts
As disclosed in the Summary of Facts, this case arose out of the death of a 76-year-old man, Tse Kee, some four months after being brought to the hospital suffering from a head injury. The cause of death was bronchopneumonia which was a complication to the deceased’s prolonged coma forced by right chronic subdural haematoma.
The defendant is the 38-year-old son of the deceased. He had been looking after the bed-ridden deceased since 2003. On 12 January 2009 the deceased was sent to the Caritas Hospital and found to suffer from acute right side subdural haematoma. He was in a coma and was transferred to the Princess Margaret Hospital. At that stage the cause of the injury was unknown. The haematoma increased in size and conservative treatment was offered due to the deceased’s advanced age with poor pre-morbid status.
On 13 January 2009, when a doctor tried to get a history from the deceased’s family in relation to the cause of the injury, the defendant admitted he had shook his father, causing the father to bump against the bed. A report was made to the police.
On 14 January 2009 a social worker, Mr Ho Hing-yee, who had provided assistance to the family, was informed of the deceased’s hospitalisation and the defendant’s admission to the doctor. Mr Ho therefore telephoned the defendant on 15 January 2009. During this conversation, the defendant admitted that he was in a bad mood and he shook his father when the father had difficulty in urinating. He also told Mr Ho that he did not realise the matter was so serious until the morning of 12 January 2009 when he reported to the police and had the father sent to the hospital.
On 20 January 2009, the defendant went to the Family Services Centre and told Mr Ho he regretted very much causing injury to his father as a result of a momentary annoyance. On 22 January 2009, Mr Ho informed the defendant that the police were looking for him. On the same day, in the presence of Mr Ho, the defendant was interviewed by the police. The defendant stated, among other things, the following:
(a) the deceased had a stroke in his right brain in early 2003 and was unable to move his left hand and left leg since then. The deceased was bedridden and the defendant had been looking after him;
(b) the deceased had difficulty in defecating for days up to 9 January 2009 and the defendant had shaken his father not more than six times to make his father more awake;
(c) the defendant shook his father because he was cold and got fretful. There was a pillow under his father’s head;
(d) on 10 January 2009 from 10 am to 4 pm, the deceased only half defecated, meaning the deceased did not defecate properly, and the defendant punched the deceased’s arms, more on the left arm which was paralysed. The defendant only shook the deceased out of momentary anger, forgetting that the pillow had slipped away from the deceased’s head while he was rocking the deceased’s body to facilitate the defecation. He heard a sound when he shook his father and he knew he had screwed up;
(e) the defendant admitted he was more fretful on 10 January than the day before and he shook the deceased for six to ten times. After the shaking, the deceased told the defendant he felt dizzy;
(f) the deceased finally defecated successfully at 4 pm and the defendant became calm then;
(g) on 11 January 2009, the deceased was not so conscious and refused to talk to the defendant. Later, the deceased told the defendant he was dizzy and in pain.
(h) on 12 January 2009 the defendant found the deceased could not eat, could not move or respond to the defendant and appeared weak;
(i) the defendant felt very guilty for having hurt the deceased. With regard to the treatment received by the deceased he was dealt with conservatively due to his advanced aged with poor pre-morbid status.
Subsequent CT scans showed recurrence of bleeding with right acute subdural haematoma with significant midline shift and brain stem compression. Again, conservative treatment was offered, with the consent of the family, due to the poor prognosis. The deceased was in a coma as at 2 February 2009, that is the Glasgow Coma Scale 4 over 15, but his condition stabilised later and he remained semi-comatose and the same scale as 9 over 15. The deceased was then discharged from hospital and transferred to a day care centre for the aged.
On 10 April 2009, the deceased was readmitted into the Caritas Hospital and he was diagnosed with chest infection, anaemia and infected sacral sore. His clinical condition did not respond to treatment and he died on 17 May 2009.
The defendant was arrested for the murder of the deceased. Under caution, the accused said he recalled it was on 10 January 2009 that he had shaken his father, resulting in injury to his father’s head. He said he did not foresee it would end up that way. The cause of death was given by Dr Chiao Wing-fu as bronchopneumonia due to prolonged coma, due to chronic subdural haematoma.
On 25 June 2010, Dr Leung Shing-tak, of the Department of Neurosurgery gave the following opinion:
“In our opinion the occurrence of the right acute subdural haemorrhage could possibly be the result of the head injury inflicted during the assault on 10 January 2009. The fact that there was no external wound seen over the patient’s head on admission could not exclude the occurrence of the assault.”
On 12 May 2011, Clinical Professor Poon Wai-sang, of the Neurosurgery Division, at the Prince of Wales Hospital, gave his opinion after reviewing all the CT scans and medical reports of the deceased as well as the video-recorded interview of the accused. Professor Poon was of the view that the subdural haematoma the deceased suffered on 12 January 2009 was fatal and was caused by the accused repeatedly shaking the deceased on 9 and 10 January 2009.
The defendant’s background and various reports
The defendant is 38 years of age, a single man, with a clear record. Prior to the death of his father, the defendant was living with his parents and was looking after the deceased since the latter suffered a stroke in 2003. Mr Duncan Percy, counsel for the defendant, tendered various medical reports on the accused and a report, dated 29 January, by a social worker, Mr Ho Hing-yee, that is the same social worker mentioned in the Summary of Facts. That report was prepared for a multi-disciplinary case conference relating to a case of suspected abuse of an elderly person, namely Tse Kee, the deceased.
As a result of the information disclosed in those documents, I adjourned sentencing to 17 June pending my perusal of various reports. I will briefly mention the contents of the reports provided to me; first of all, the PO report and the CSO suitability report.
The defendant is the only son of his parents and the youngest of four children. He was born in the Mainland and came to Hong Kong with his mother in 1983 to reunite with his father. He studied up to form 3 and worked as an apprentice in electrical engineering for four years from 1992 to 1996. He also attended an IVE course on electrical engineering at the same time. However, he was not able to cope and he quitted both his job and the vocational training in 1996. Since then the defendant idled at home and took up irregular employment.
Since his father’s stroke in 2003, the defendant became the prime carer of his bedridden father. The defendant and his family members were all of the view that the deceased’s death was as a result of an accident as the defendant had no intention to harm his father. Nevertheless, the defendant regretted his acts which caused his father’s death. The defendant’s mother and siblings do not blame the defendant for the death of the deceased. The probation officer concluded that a probation order with intensive counselling element was not necessary for the defendant.
As the defendant is a patient receiving psychiatric treatment, the probation officer was of the view that the defendant may not be suitable to perform community service work, so a CSO was not recommended.
The Psychiatrist’s Report
According to the report by Dr Ho, a visiting psychiatrist at the Siu Lam Psychiatric Centre, the defendant was diagnosed with schizophrenia on 23 January 2009. The onset of his mental illness was when the defendant was in his 20s. The defendant was admitted into Kwai Chung Hospital in February 2009 and again in March 2009. After adjusting and readjusting his medication, he was finally discharged to a private hostel in May 2009. The defendant attended follow‑up treatment with good drug compliance. The defendant also started supported employment in 2010 and was coping well.
Although the defendant continues to be paranoid about the water taps at his home, he was no longer distressed or preoccupied about it. His mental state had been relatively stable in the last two years with no aggressive behaviour. In-patient treatment was not necessary. The doctor did say that the defendant should remain in supported accommodation if he is discharged into the community.
The Psychologist’s Report
The Clinical Psychologist, Yvonne Lee, referred to the personal background of the defendant and related to me the strained relationship between the defendant and his father when the defendant ceased working. The defendant was withdrawn and often just stayed in his room. The defendant was not cleaning himself due to his paranoid fear of the bursting of the water tap at his home, and the defendant also made some self-harm gestures after having rows with his parents.
The relationship between the defendant and his father improved ever since the defendant had to take care of his father in 2003 as the father’s temper also turned mild. Miss Lee is of the view that the defendant’s risk of future violence is not particularly high should his mental illness be well contained. As the defendant is receiving psychiatric treatment, no recommendation for psychological intervention is made.
The Mitigation
At the resumed hearing on 17 June, Mr Percy handed up four letters written on behalf of the defendant. The first was a joint letter from family members but written by the defendant’s sister. They all expressed how well the defendant had been looking after the father and that they believed it was an unintentional mistake on the part of the defendant that resulted in their father’s death. They all ask for leniency from this court.
The next letter came from Mr Ho Hing-yee; that is the same social worker mentioned in the Summary of Facts. Mr Ho became the social worker responsible for the defendant’s family since 1 November 2004. Mr Ho related how the defendant looked after his father for six years and was shown to be a responsible person to his family. Mr Ho also referred to the deep remorse and self-blame experienced by the defendant. He asked the court to take all those into account when dealing with the defendant.
The next letter is from Mr Kenny Chan of the Sing Hong Association Rehabilitation Centre Limited. According to Mr Chan, the defendant started to reside at the hostel since May 2009. Defendant was of good behaviour and followed the rules and regulations of the hostel. The defendant took his medication regularly and happily rendered assistance to other residents. Mr Chan perceived the deep remorse of the defendant and asked the court to give the defendant a chance.
The last letter is from Mr Chan Sum-yuen of the New Life Psychiatric Rehabilitation Association. The defendant had been receiving training at New Life since 1 April 2010. Mr Chan informed me that the defendant was arranged to perform outdoor cleaning work at the Tsing Yi Sports Grounds and his work performance was good. New Life was keeping the post open for the defendant during the trial of this case.
Mr Percy stressed the following points in favour of the defendant:
(1) the defendant frankly and voluntarily owned up to the doctor and the police what he had done. Without such information, the police or prosecution might find it hard to prove the case against him;
(2) the defendant was suffering from mental illness which was not detected at the time. Furthermore, the defendant was aware of his lack of patience and had sought help from a social worker days before the incident;
(3) the defendant’s mental condition is under control and he is not a threat to the society;
(4) he has a place to stay at a hostel and he was able to work under supervision of New Life.
Mr Percy submitted that, in the case of the defendant, in balancing retribution and rehabilitation a community service order would be ideal should the court agree with his suggestion.
Having heard the submission of Mr Percy and in view of what the probation officer had said when not recommending CSO, I adjourned the case to 5 July pending a further CSO suitability report. I ordered that the current psychiatrist’s and the psychologist’s reports be provided to the probation officer to appraise him or her of the latest medical situation of the defendant, to see if it is possible to find unpaid community work for the defendant.
I have now received an updated community service order suitability report which says that the defendant is considered to be a suitable person to perform work under a CSO. The probation officer who made the recommendation had taken into consideration the defendant’s relatively stable mental state in the last two years, the nature of the offence and the defendant’s willingness to perform CSO. The recommended hours are between 120 to 180 hours.
I understand the defendant is currently residing at the hostel and had resumed working under the supervision of New Life at the sports ground. Mr Percy also informed me that the defendant is willing to be put on the CSO.
The Sentence
Any person who is convicted of manslaughter shall be liable to imprisonment for life and to pay such fine as the court may award.
No one will dispute that a conviction of manslaughter is very serious. Normally speaking, a person convicted of manslaughter would be looking at a very long term of imprisonment, if not a life sentence, but that does not mean that a person convicted of manslaughter must be locked away for years. The sentencing judge must consider all the circumstances of any particular case to decide the appropriate sentence.
This is a tragic case. While the defendant did not have a good relationship with his father prior to 2003, his relationship with his father improved since his father suffered from a stroke in 2003 and was bedridden. The defendant was the prime carer of his father for a number of years and, by all accounts, he was doing a good job. There was no evidence of the defendant abusing his father.
In relation to the present incident, it was when his father failed to defecate for days that the defendant lost his patience and shook his father to express his own annoyance, resulting in his father’s death.
I accept the defendant is remorseful of what he had done. I would also take into account that the defendant admitted his guilt even when there was uncertainty whether the prosecution could prove the cause of death was linked to his act.
In my view, this case is to be distinguished from cases in which the defendant was habitually ill-treating the deceased; or cases in which the perpetrator used lethal or offensive weapon to attack the deceased.
It is unfortunate that the defendant’s mental condition was not detected and was left untreated for years. While I feel that, faced with the stress and difficulties in caring for a bedridden relative even a person with normal mental condition might temporarily lose his or her patience; I would nevertheless take into account the mental state of the defendant at the time when he lost his temper, particularly when he had sought help only days before the incident.
Having considered all the circumstances of the offence, the defendant’s background and all the relevant information on him, including his undetected mental state in the past, I am of the view that a community service order is the appropriate sentence in the present case, after balancing the issues of retribution and rehabilitation. I am also of the view that the maximum 180 hours recommended should be ordered to reflect the seriousness of the offence committed by the defendant.
By ordering the defendant to perform unpaid work under a community service order, the defendant is able to repay the society for the wrong he had committed, which is beneficial to the society. The defendant is also able to continue his stay at the hostel and to perform work under the supervision of the staff of New Life.
COURT: Thank you. Now that you have already indicated your willingness to perform the CSO and understood what I have already told you, so I hereby order that you, the defendant, have to perform unpaid work for 180 hours within the next year starting from today, with the special condition that you are to attend regular follow-up psychiatric treatment as and when required by the probation officer.