HKSAR v. CHIU WAI KA

DCCC 97/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 97 OF 2014

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Reasons for Verdict

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1.  The defendant faces five charges: two of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, two of assault occasioning actual bodily harm, contrary to section 39 of the Offences Against the Person Ordinance, and one of common assault, contrary to section 40 of the Offences Against the Person Ordinance.

2.  All the charges arise out of an incident that occurred on 3 December last year at the same location.  That is the 8th Floor of Yin Tak Building, High Street, Western.  The incident arose out of a request for police assistance by the parents of the defendant.  The defendant had locked himself in his bedroom in the premises in which he lived with his parents.  The defendant had been known to mental health services since 2008 and was suffering from paranoid schizophrenia.  

3.  Initially, at least three police officers attended the scene.  They were the prosecution witnesses Nos. 1 to 3 together with two ambulancemen who were PWs 4 and 5.  The prosecution say that the defendant assaulted five victims whilst they were inside the premises. Initially, the first and the second prosecution witnesses were struck by a chopper wielded by the defendant.  Later, another victim, an ambulanceman, was tied up and assaulted by the defendant.  The other two victims were, firstly, a police officer who attended the scene to arrest the defendant and another ambulanceman, and the police officer and the other ambulanceman received their injuries when the defendant was finally subdued.  

4.  The defendant says that he was acting under a paranoid delusion at the time of the incident.  He thought that the police officers and ambulancemen were there to kidnap him.  It is said that he was fundamentally mistaken as to the facts but nevertheless, by his own standards of delusion, he acted genuinely and reasonably in defence of himself.  

5.  The defendant also takes issue with the prosecution witnesses’ account of how the incident unfolded.  There is a clear dispute on the facts.

6.  The prosecution case.  The prosecution allege PW1 was squatting outside bedroom 1 when he was struck by the defendant with a chopper, causing cut wounds to the left shoulder and left palm (that is the 1st charge); that PW2 was struck twice with the same chopper by the defendant, causing two chop wounds to the head (that is Charge 2); that PW4 was tied up by the defendant around the throat and hands, causing redness to the wrists and around the throat, and that is Charge 5; that PW5 was bitten on the left shoulder and received a bite mark (that is Charge 3); and PW6, the other police officer who entered the premises, also received a bite wound (that is Charge 4).  Both these injuries were sustained whilst the two witnesses were subduing the defendant who was holding the chopper at the time. 

7.  Thus, there were a total of five victims.  Three were police officers; two were ambulancemen.  They all gave evidence.  The prosecution also called a psychiatric officer who had examined the defendant and a doctor who examined one of the witnesses.  There was also evidence from the Exhibits Officer.

8.  The first prosecution witness, who was the victim in the 1st charge, had told the court that he went to stand outside the defendant’s bedroom together with the second and third prosecution witnesses.  The three witnesses stood outside bedroom 1 as depicted in Exhibit P17.  PW1 was squatting just outside the door of the bedroom.  The door was closed.  The witness spoke to the defendant, asking him to come out of the room.  The defendant refused. 

9.  The witness continued to make this request.  The defendant became more emotional.  He told the policeman that he would arrest him.  Suddenly, PW1 says that the defendant opened the door.  He had a chopper in his right hand and struck down at the witness’ left shoulder.  PW1 tried to fend off the attack, but the defendant chopped him on the left wrist also.  He took his extendable baton and hit the defendant with it.  At this time, the defendant was attacking PW2 with the chopper.  After this attack, PW1 and PW2 were able to leave the premises. 

10.  PW2, who was the victim in the 2nd charge, gave the same account as PW1.  He said that he had struggled with the defendant.  PW2 was chopped.  He said the defendant was stronger than him and that his left forehead was wounded as a result of the defendant striking him with the chopper on two occasions.  

11.  PW3 was in the premises throughout the attacks. He witnessed the attack by the defendant on PW1 and PW2.  He had drawn his gun and pointed it at the defendant.  After PW1 and PW2 had left the premises, he said to the defendant, “Police, don’t move.  Otherwise, I’ll shoot.”  The defendant had eventually lowered the chopper, and PW3 had gone into room 2 with the defendant’s mother and closed the door and tried to summon assistance.  He had a few minutes later come out of the room and saw PW4, an ambulanceman, with a rope around his neck.  The defendant still had the chopper which was raised above his head.

12.  PW3 drew his gun, gave a similar oral warning to the previous one.  Shortly after that, the defendant’s father and PW5 had rushed over and managed to subdued the defendant.  PW4 had entered the premises with two colleagues.  When he entered, the three policemen were present and trying to get the defendant to come out of his bedroom.  When the door opened, the door to bedroom 1, he saw PW1 being chopped.  He also saw PW3 draw his gun.  The defendant had talked to PW4, asked him who he was and why he was at his home and said he wanted to arrest him.  The defendant had pushed PW4 over to bedroom 1 where he used string to tie his hands behind his back.

13.  PW5 at some point had come over and told the defendant that the defendant’s father was injured and asked to get a first-aid kit from outside.  The defendant refused and looked out of the main door himself.  After he had done this, the defendant had then tied a string around the neck of PW4.  PW4 saw the gun being drawn again by PW3.  He had also seen the defendant’s father subdue the defendant together with PW5. PW4’s injuries are the subject of the 5th charge. 

14.  PW5 gave similar evidence to the other prosecution witnesses.  He had seen the attacks on PW1 and PW2 and also PW4 being tied up.  He had assisted the defendant’s father in subduing the defendant.  PW5 had been bitten by the defendant during the struggle to subdue him, that being the 3rd charge.

15.  PW6 had been injured when subduing the defendant.  He was bitten by the defendant and suffered a forearm abrasion.  He had been wearing a Blackman uniform at the time when he subdued the defendant, and his injuries were the subject of the 4th charge.

16.  PW9 had conducted a psychiatric examination on the defendant.  She produced Exhibit P23, a report in which she concluded that the defendant was suffering at the time from paranoid schizophrenia.  She said he knew he had a chopper and was able to tell why he did what he did.  She said he could be influenced by the delusion but he could tell right from wrong and make his own judgments. 

17.  The injuries to the victims were not disputed. Nor was it disputed that the charges accurately reflect the degree of injuries suffered by the respective victims.

18.  The defence case.  The defendant gave evidence. He is a man of clear record.  He gave evidence about his experience of being taken into psychiatric care in the year 2008.  As a result of this, he formed the opinion that the police could act like kidnappers. 

19.  His version of the events on 3 December was different from those of the prosecution witnesses.  It was the defendant’s evidence that the police had not identified themselves as police officers, that they had asked him to come out to have a chat.  He had asked, “Who are you?” The police officers said, “Come out and chat first.”  The defendant replied, “Don’t bother me.”  The defendant said, “Why waste other people’s lives?  You have so much time reading books.  Kidnapping people should not be done.”  He said that the police then said, “As you want to know who we are, open the door and come out and then you can find out.”  The defendant said he thought that if he opened the door, there would be trouble.  He would be tricked.  Defendant told them that if they continued to bother him, he would come out to arrest them.  Then the policemen said to him, “If you can arrest me, come out to arrest.” 

20.  Defendant said that he thought that if they were police, they would not ask him to arrest them, so they could not be police.  He opened the door, intending to arrest the man.  Defendant said PW1 and PW2 intended to catch him.  PW3 put his hand on his gun and intended to draw it. The defendant was frightened.  He could not deal with three people.  He raised his arm to fend off PW1 and stepped back.  He fell onto a desk in his room.  He looked for something on the desk with which he could strike them.  He found a string and waved it at them but they wiped it away.  He then picked up something in the dark to strike at them.  He raised his hand.  He saw PW1 and PW2 raise their hands above their heads.  He knocked them once.  He struck each of them once.  Then his eyes were dark and everything went quiet.  He felt numb.  He waited a while.  The flat was very quiet.  There was no one there and he wondered if he was hallucinating.  He looked down and saw colours and blood. But then he was surprised. 

21.  The defendant thought he may be having an auditory hallucination.  Later on, he had seen PW3 draw his gun.  The defendant told him to drop his weapon and raise his hands, face the wall and surrender. Eventually, PW3 put his weapon away and walked to bedroom 2. 

22.  The defendant saw PW4 peeping at bedroom 3.  The defendant said, “Who are you?  Why are you in my elder brother’s room?”  He told him to come out.  He also saw PW5.  The defendant believed he was surrounded.  He was very frightened.  He eventually dragged PW4 to the main door.  He thought that if he tied him up, there would be one less person resisting.  So the defendant tied up PW4.  He told PW5 to lie on the sofa, but PW5 ignored him.  Later, PW5 asked to get the first-aid box from outside.  The defendant refused.  He checked outside himself. 

23.  Shortly after this, the defendant’s father and PW5 had dashed over and subdued him.  Then the metal gate opened and a lot of people came in.  He knew that if he was caught, they would submit him to thought experiments.  So he resisted them.  Eventually, he could sit up on the floor and was handcuffed.  The defendant said no one had revealed their identity before he opened the door, and when he picked up the second item, he did not know what it was.

24.  The defence called a witness, a Dr Wong.  He was a psychiatric expert.  He diagnosed the defendant as suffering from paranoid schizophrenia.  He said at the time of the incident, the defendant was suffering from active psychotic symptoms.  He would be conscious but his mind would be subject to delusional interpretation of events.  His actions would be influenced by his delusions of persecution.  The witness said the defendant’s recollection of events may be coloured by his delusional perception.  The witness’ psychiatric report was produced as an exhibit.

25.  The issues.  There was a clear dispute on the facts.  The defendant’s version of events differed markedly from that of the prosecution witnesses.  It was first necessary to determine what actually happened.  Following this, it is necessary to consider the defence raised.  On the defendant’s evidence, the defence was that the defendant was acting in his own self-defence.  He may well have been deluded but such delusion, it is said, arose out of his condition of paranoid schizophrenia and was thus genuinely and honestly held.

26.  My resolution of the facts is as follows.  In respect of any resolution of any issue of fact, it is necessary to bear in mind that it is the prosecution’s duty to prove its case and this burden remains on the prosecution at all times.  The requisite standard of proof of any fact or issue is that of proof beyond reasonable doubt.  

27.  In assessing the credibility of the evidence, I also bore in mind that the defendant is a person of previous good character, and this is clearly relevant to his propensity to commit crimes of this nature and also to any assessment of the credibility of the evidence he has given. 

28.  I noted that the evidence of the prosecution witnesses was broadly consistent, each witness giving a clear first-hand account of how they perceived the incident to have unfolded.  I noted PW1 had failed to note in his witness statement that he identified himself and his parties being police officers; also that PW5 had heard the defendant tell PW3 to put away his gun, something that PW3 had said had not happened.  I also noted that PW2 along with PW1 had failed to recall in his witness statement that the two of them had identified themselves as police officers before the defendant left bedroom 1.

29.  I also considered that the defendant’s actions and recollection to the court could be coloured by the nature of his paranoid schizophrenia and the delusions that this engendered.  The defendant had covered all the windows in his room with black plastic sheeting and used a bamboo stick to fortify his room against break-in.  This, it is said, supports the defendant’s evidence that he would not have left room without an invitation to do so in order to arrest the persons outside.  And that given that the defendant was coming out to arrest those people, it would be unlikely that he would simply attack those outside with a chopper.

30.  I also noted that reference was made to the evidence of PW8, a Dr Tong who had examined PW1.  The witness could not rule out the possibility that he might have missed an injury to PW1’s right upper arm as that area was covered by clothing when he examined PW1.  So it was possible that the medical evidence might not be broadly consistent with his other evidence.

31.  There was also the opinion evidence of Dr Wong, the second defence witness that the defendant’s mind was overwhelmed by his delusions, and this may mean that the defendant remained confused, mixing up his recollections of reality.  With this delusion, he was open to the possibility that the defendant genuinely recalled matters as having happened that had not occurred or in a way that had not occurred but so he could be by his own standards truthful but still in error as to the actual facts.

32.  I found that in respect of a resolution of these factual questions that the evidence of the prosecution witnesses who were there and witnessed the incident, and that is PW1 through to PW6, accurately and clearly represented the course of the actual events.  In this, they were truthful, reliable and broadly consistent witnesses.  I accept their account of events.  In doing so, I reject the version put forward by the defendant. 

33.  In rejecting the defendant’s version, I also found that the defendant was attempting to minimise the nature of his actions especially where he said that he was invited to leave his room to make arrests and also his evidence that he was unaware that he held a chopper in his hand when he struck PW1 and PW2. 

34.  It is also necessary for me to consider the effect of the psychiatric evidence insofar as it may relate to the question as to the defendant’s mens rea.  My review of the psychiatric evidence is as follows.  The prosecution presented two reports by Dr Amy Liu.  This witness concluded that the defendant understood the charge and his position in legal proceedings.  The defendant had described the police to her as kidnappers because they had used force to kidnap him to hospital in 2008.  He believed that the hospital staff and the police collaborated together, and because of this, he did not need to follow the laws of Hong Kong.  The defendant said he was armed with a chopper and thought this was legitimate as the police were also armed with guns.  He said or he told her once the door was opened, he chopped the people standing in front of the door and then tied up the ambulanceman. 

35.  She reached the conclusion that the defendant suffered from paranoid schizophrenia with little insight into his condition. The witness opined in her evidence that on the day in question, the defendant had an irrational belief.  She was asked if the defendant might not be able to control himself.  Her response was, “I would not say so.”  She said the defendant knew he had a chopper and he could tell why he did that; the defendant could tell right from wrong and was of the opinion that he need not follow the law as he could make his own judgment.

36.  There was also the evidence of Dr Wong.  He was presenting the report for the defence and also gave evidence.  He similarly concluded that the defendant suffered from paranoid schizophrenia with a lack of insight into his illness.  He considered that at the time of the offence, the defendant was harbouring a delusion of persecution as part of his illness, the main content of the delusion being that the defendant thought he was being targeted by a group of kidnappers.  The defendant was preoccupied by his delusions and unable to think rationally.  Due to the effect of the delusions, he had disordered thinking which limited his ability to reasonably appraise the situation and make rational decisions. 

37.  Dr Wong also concluded the defendant was labouring under a defect of reason at the time of the offence due to symptoms caused by a disease of the mind.  Dr Wong did accept that the defendant knew the knife would cause or the chopper would cause harm even though he was under a delusion.  

38.  It appears to me that the psychiatric evidence was able to clearly establish the following: that the defendant did know the nature and quality of the act he was doing and was capable of telling whether his acts were right and wrong.  So there is no question of the issue of insanity arising on this evidence.

39.  Furthermore, the defendant was capable of making decisions to act and was under control of his actions.  There is no question of automatism arising on the evidence.  The evidence does establish that the defendant suffered from paranoid schizophrenia, and as a result of this, at the time suffered from delusions of persecution.  He believed the police were capable of acting as kidnappers and might take him away as they did in 2008 and that the other people present, such as ambulancemen, were possibly colluding with the police.  It is common ground between the two psychiatrists that this was the nature of the defendant’s mental condition and the form of the delusion he was labouring under. 

40.  The defendant on the basis of this evidence was subject to a somewhat mistaken view of the existing situation.  This was a delusion which appeared to be honestly held by him.  The defendant says that his actions conditioned by his delusion were acts in self-defence.  Because a person acts in self-defence if in the circumstances he honestly believes that it is necessary for him to defend himself and that the amount of force he uses is reasonable, once this defence is raised, it is for the prosecution to prove beyond a reasonable doubt that the defendant was not acting in self-defence.

41.  I consider it correct on the evidence to find that the defendant was acting in accordance with the paranoid delusion that the people outside his door and inside the flat were there to remove him in much the same way as they had done in 2008.  However, on my assessment of facts, I do find that he was made aware of the fact that they were police officers but that he did consider, because of their previous actions in 2008, they could be considered to be a kind of kidnapper.

42.  I did note that the defendant had denied that the police officers identified themselves as police officers.  I had seen the defendant give evidence.  I find that this was in fact a deliberate evasion as was his evidence that he was unaware of the fact he picked up a chopper.  I find that the defendant was capable of realising that his actions were peremptory and unjustified even by his own standards.  He is on the evidence quite capable of discerning this level of right and wrong, and he did so in order to make his actions appear more palatable and justifiable. 

43.  I find he was prepared to tailor his evidence in this way.  Clearly, as the witness evidenced, the defendant knows his actions and knows the difference between right and wrong.  The evidence clearly shows that when the defendant realised that there were police officers outside, he decided to act immediately and in doing so left the room to immediately attack them, and at the time and in order to do so, armed himself with a chopper.  His acts were not in response to any threat of any kind of perceived immediate physical violence.  The defendant’s delusions may have led him to believe he may be taken away, but the actions taken by him were not in response to any actual threat at the time to himself.  At that point, there was no necessity even by the defendant’s deluded standards to defend himself.  Furthermore, following the defendant’s leaving the room, his actions went far beyond those that would have been reasonable for his own self-defence.  

44.  I find that the defendant did not honestly believe he was compelled to act in the way he did at the time that he did so.  He chose to act in the way he did so in order to gain an advantage.  I find on the evidence I have heard that the defence of self-defence is not available to the defendant on the basis of the facts as found by me. 

45.  Nevertheless, it must still be determined if the defendant held the requisite intent to accompany particular kinds of assault charged in this case.  The two charges of wounding with intent in respect of the assaults on PW1 and PW2 required that the defendant intended to cause serious bodily harm to the victim.  I find it is clear that the defendant possessed such an intent.  I am satisfied on the evidence the defendant equipped himself deliberately with the chopper before leaving the room and struck those two witnesses before they had time to take any evasive action. This is clear evidence of a deliberate decision to use a potentially lethal weapon and the completion of that intent by using it to strike the two witnesses.   

46.  In respect of the charge of assault upon PW4, the tying-up of the witnesses and the accompanying injuries were deliberate use of force and, clearly, the necessary intent can be shown.

47.  Furthermore, the assaults on PW5 (Charge 3) and PW6 (Charge 4) also involved them being bitten by the defendant, a deliberate act which he in fact admitted in evidence.  I found that the defendant was capable of forming the necessary intent and did in fact do so. Clearly, the forming of the intent from the actions of the defendant, the finding of the existence of the intent is the only irresistible inference that can be drawn from the facts that are there.

48.  Given my rejection of the defence of self-defence by the defendant and my finding that all the elements of each of the charges against the defendant has been clearly proved beyond reasonable doubt by the prosecution, I therefore convict the defendant on Charges 1 through to 5 accordingly. 

(T Casewell) District Judge