HKSAR v. Wong Po Chu

HCCC 45/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 45 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: This is a very distressing case. Quite rightly, the original charge of attempted murder was not pursued. This was never an attempted murder. What the defendant did was to attempt to commit suicide by burning charcoal in her flat but, in doing so, she exposed her son, who was then 9 years’ old, in a manner which was likely to cause injury to his health. Fortunately, he woke up and raised the alarm and in doing so, he very probably saved his mother’s life.

I have been provided with a large number of reports from medical and social welfare sources as well as most recently, a probation report. Miss Cheung Suk-king is a government social worker whose most helpful report provides a very detailed background about the defendant and the sad circumstances in which she found herself, leading up to this offence.

When the defendant went to Siu Lam Psychiatric Centre after her arrest, she was seen by Dr C Y Liu, Amy, who, on 18 July 2013, diagnosed the defendant as suffering from recurrent depressive disorder with a currently moderate to severe depressive episode and with a significant risk of self harm. Importantly, she added that there were no psychotic symptoms.

What had driven the defendant to this state was a combination of circumstances which are fully set out in the statements and reports before me. Essentially, she had been married to a man who later developed schizophrenia and who had repeatedly threatened her physically and verbally.

In 2011, she divorced her husband after nearly 10 years of marriage but by this stage, she was so filled with nightmares and bad memories that she never went back to the matrimonial home until the day of this incident; instead, she stayed with her brother. But on 5 July 2013, she went back to the matrimonial home where she tried to commit suicide.

In addition to the problem she had with her ex-husband, her son also had serious behavioural difficulties as he was mildly autistic, and in practice, what that means is that he was subject to mood swings, including suicidal thoughts, severe temper outbursts over very trivial matters and he would scream and shout and throw objects and even assault others during these tantrums.

From the details of what the defendant had to put up with in her daily life, it is no wonder that she reached the depths of depression. She herself described some of her inner feelings in her interviews with the police. I am going to quote from page 304 of the papers in this case, where she said this: “I want to explain that I really did not intend to kill my son”.

At 99, that is Counter 99 in the interview:

“I was probably out of my mind momentarily. In fact, at that time, I was really naïve on that day, after I had poured the charcoal, I thought I would definitely die. At that time, I was afraid that something would happen to my son and I even held my son in my arms and pressed his face against my chest. In fact, at that moment, I, myself, did think about dying. I thought about committing suicide because I had no way out. I did not know what I could do. In the past, every day I had heard my son saying that he was very upset. After hearing that, I was very upset too. I could understand why he was unhappy but I could not comfort him and relieve his sadness. Sometimes, no matter how long I spent persuading him, he was just unwilling. I mean, to be frank, I actually wanted to comfort him but I could not help him at all. I felt that I was really useless, my existence in this world, sometimes I feel I am a burden to myself and to the others, even my son. I have burdened everyone around me so I am -- I think I am what others call ‘the cursed person’ and that means whoever gets close to me would...”

And then she stopped and said:

“So I was really upset at that moment, very upset, I was crying all along.”

And at 109, lastly, in this section of the interview that I purpose to read:

“I did not mean to harm my son, I just want my son to stay healthy and happy and that’s all.”

And she went on to say:

“I’ve been unhappy in my whole life because I’ve been suffering for many years. For example, when his father went mad, his family said that I was the one to blame and I felt guilty too. I didn’t want that to happen, how could I expect that my husband would go mad? And likewise, you...”

And she was talking about the police -

“...are now saying that I intended to kill my son. Why would I kill my son? You can ask my son how much I love him. When he is sick, when my son is sick, I can stay with him round the clock, for 24 hours, side by side. Anyway, my life is not important but my son is very important. I do everything for my son’s goodness sake. For my son’s interest, that means in order that the divorce between his father and I would not affect my son, I let him continue with everything. I send him to school every morning, even if I am sick, I get up every morning. I always ask him to sleep as and when I am back from work. In the morning, I would cook his breakfast and send him to school. Why would I harm my son? I do not know what I can do.”

And that gives an insight to see how she was at the time when this all happened.

Now, after the defendant came under the care of Dr Amy Liu in Siu Lam Psychiatric Centre, she responded well to medication. Eventually, she was recommended for out-patient treatment at the Tuen Mun Psychiatric Centre.

Eventually, on 19 December last year, 2014, she was given bail and since then, reading from Dr Silvia Chen’s report dated 22 September this year, matters have progressed extremely well to the extent that she has been able to resume her previous work as a cashier at a bakery where she has been employed since 2001, with the exception of those months in custody while she was being treated at Siu Lam. She works at the bakery six days a week and her employer has been really supportive and I can see from the reports that the defendant herself is appreciative of that. She also gets on very well with other members of staff.

As for her son, he has been staying at a children’s home where the defendant regularly would visit him. He also has been receiving psychiatric help and with this, he has been able to settle down at school and there has been a general improvement of his behaviour and this has enabled the defendant to rebuild her relationship with her son.

She will soon be able to move into an address that she has been allocated by the people responsible for housing in a public housing unit and there is little doubt that she is looking forward to being able to share that address with her son, once she is able to do so.

The defendant has been regularly attending psychiatric sessions in an out-patient clinic in the Castle Peak Hospital. She has also had monthly sessions with a clinical psychologist and is in regular contact with the community psychiatric nurse. In addition, she has been seeing Dr Chen, Silvia Chen that is, punctually, every six to eight weeks since the very first visit that she made to that doctor the day after she was given bail.

What is the present position so far as Dr Chen is concerned? What she says in her report is that the defendant is now entirely free from any mental symptoms. In short, in other words, this is one of those rare cases at this court where there is a happy ending. The defendant is lucky enough to have a supportive family, a supportive employer and supportive friends and she is now well on the way to improving her relationship with her son.

And so it is my pleasant duty, first of all, to enter a verdict of not guilty on the 1st count of the indictment, under the provisions of section 51A of the Criminal Procedure Ordinance, Cap 221.

I have said it before and I am going to say it again so as to emphasis the point. This was never an attempted murder. The defendant’s actions were carried out at a time when her mind was filled with problems beyond most people’s imagination. She is well again now and it is to be expected that the defendant will stay that way.

On the last occasion, I adjourned the case in order to obtain a probation report, and to find out in particular if this defendant was a suitable candidate for a Probation Order. I have now had the benefit of reading a lengthy report prepared by Miss Au Yeung Wing-yee and I am extremely grateful for the report that she has prepared. She speaks in the report of the genuine insight that the defendant has to her emotional problems of the past and she confirms the good progress in rehabilitation that other medical witnesses have also spoken about.

Madam Wong, I am told by Miss Au-Yeung that you have also helped your son in mending some of his behavioural problems. The probation officer has stated that she can recommend you for probation on three conditions. The conditions are that you should work and reside as directed, that you will participate in counselling groups and other programmes as directed and receive psychological or psychiatric treatment as and when directed.

None of those conditions is new to you. You have been co-operating with the medical people that you are seeing and you have been working. I have no doubt about that. I take the view it would be appropriate in your case to impose a Probation Order as I think you need as much support at this time as possible. And I also think that it should be coupled with the three conditions referred to by the probation officer.

However, before I can impose a Probation Order, I need your consent because a Probation Order means that you will need to comply with the probation officer’s requirements. She may, from time to time, visit you or you may be required to visit her, and I am required by law to warn you that if you were to breach probation by committing some other offence or by failing to comply with any request made by the probation officer, you could be brought back to court and dealt with for this offence.

I hasten to add, I do not think for one moment that anything of that kind will happen. You have been entirely co-operative since your arrest and you have shown yourself eager to live a normal life once more.

So would you stand please. Are you prepared to be placed on probation on the conditions I have referred to?

ACCUSED: Yes, I am willing.

COURT: All right. Then in those circumstances, Madam Wong, I am going to make a Probation Order for 2 years and that will be coupled with the three conditions that I have referred to. And to spell it out for the purposes of the order, the conditions are that you shall work and reside as directed; you will participate in counselling groups and programmes as directed; and shall receive psychological and/or psychiatric treatment as and when directed.

Madam Wong, I have great confidence that all will be well with you. Please do not let me down because by letting me down, you will be letting down all those friends and family that you have, who have been giving you all this support. Do you understand?

ACCUSED: Yes, I do.

COURT: All right. Then that is all and the case now is at an end and I wish you well. But do you have some property downstairs?

MR LUK: No, she is on bail.

COURT: Is there any property that she had...

MR LUK: Except bail money, bail money.

COURT: What? Bail money?

MR LUK: She is on bail.

COURT: So where is that?

MR LUK: I think she deposited a sum - yes, she deposited a sum of...

COURT: All right, well, you can make inquires about that so that she gets it back.

MR LUK: Yes, apart from that, there is no...

COURT: Nothing else.

MR LUK: ...no other property...

COURT: All right.

MR LUK: ...lodged with the court.

COURT: All right. Madam Wong, if you would like to go and -- you can leave the dock now, it’s all over.

COURT: But I do have some rather important comments, as I mentioned last night, to make about this case. I gave you an opportunity to think about what I was saying. I was horrified to see that the interview was conducted by two male officers with no female officer present.

MR ARTHUR: Yes, indeed.

COURT: Especially as I think you’ve told me there was a female officer but she left as soon as the interview started.

MR ARTHUR: Yes, that’s right. I have conveyed very clearly, I believe, your concerns to the police and I believe they understood it and I am provided with a document - we’ll call it a document - which sets out the timeline for the handling of the defendant - and I will give this to your Lordship. The only important thing there, I suggest, is that they sought a clearance from the doctor before they interviewed her.

COURT: Yes, I saw all that.

MR ARTHUR: That’s not your Lordship’s point, I know that.

COURT: That is not my point at all. At the beginning of this interview, it says A and B, two male officers, are present.

MR ARTHUR: Yes, yes.

COURT: The defendant is C and then D, Tong Ka-man, Photographer of Identification Bureau. And you tell me she is a woman, and she left as soon as the interview started. Why?

MR ARTHUR: If you look at that document I have given you, ignore the timeline, at the bottom are two bullet points. Now, I have read...

COURT: There are no directions as to how women...

MR ARTHUR: That’s what I’m told and I have been back to the police, having received those, having those two points made because I knew, and I know, that your Lordship is concerned about that, and that is the police’s position. It’s not the OC case’s position, that is being considered at a senior level and...

COURT: I can understand if it is not practical to get a woman officer present for some reason or another.

MR ARTHUR: Yes.

COURT: But when there was actually one on the scene...

MR ARTHUR: Yes.

COURT: ...it’s unbelievable that she should be sent out of the room just at the moment the interview begins.

MR ARTHUR: Yes.

COURT: All right, well, I notice there are no directions so...

MR ARTHUR: No directions.

COURT: If there are no directions, there need to be.

MR ARTHUR: Yes. There are two other matters which were concerning.

COURT: Yes.

MR ARTHUR: Your Lordship, one was the Pol.154 and the pre-amble...

COURT: Yes.

MR ARTHUR: ...to that with repetition inserted by the statement-taker in the final paragraph.

COURT: Yes.

MR ARTHUR: And the police concede that they did not conform with their own police procedures manual, and I think that...

COURT: It’s not just this case, somebody’s sent out a word...

MR ARTHUR: Right.

COURT: ...saying you’ve got to repeat this, because I’ve got -- case after case it’s been happening, and I think somebody has sent out a memo or something to every police station saying you’ve got to repeat it.

MR ARTHUR: Yes, yes.

COURT: It’s not coincidence.

MR ARTHUR: No, well, there it is, the officers in this case concede that and it’s to be anticipated that it won’t happen again here. The second -- the third matter that your Lordship was concerned about was this declaration which appears in relation to the criminal records, and the police again concede that that was wrong.

COURT: See, all we have to do is draw up a piece of paper.

MR ARTHUR: Yes.

COURT: If they’ve got to have a data protection thing anyway - I don’t know why they do but they do - so they put that at the top of a piece of paper, all the names of the witnesses, and all they have to do is initial that they’ve been read the terms of the data protection, nothing to do with the witness statement at all, just a piece of paper on a file.

MR ARTHUR: Well, the force procedures manual says if there’s to be a declaration, it should be on a separate sheet of paper but it should only be for those people who do have criminal records.

COURT: Of course.

MR ARTHUR: Not many pathologists, and that was the example that your Lordship gave, fall into that category. So there it is, those maters have been brought home to the police.

COURT: All right. Well, I am going to say something about it so that they’re not just words in the wind, and we can send it to the Director of Public Prosecutions who ought to know about it.

There is an important matter which I have raised with Mr Arthur and alerted him to the fact that I would be raising it today and I am grateful to him for his research into the three aspects that I want to raise now.

The defendant in this case was, as everyone recognises, in a very disturbed state of mind at the time of her arrest. She was taken to hospital after she had attempted to commit suicide and within a day of her arrest, she was fit enough to be interviewed with the permission of the doctors, but when this took place - and in fact, there were two interviews at the hospital where she was being treated - on 7 July 2013, two officers, both of them male, were present. There was no woman officer present.

What makes this slightly worse is that there was a female officer available, referred to as ‘D’ at the heading of each interview, but she did not remain for the interviews themselves. In other words, she was available and present, but as soon as the interviews began, she had left the room.

Now, Mr Arthur has informed me today that there are no rules or directions regarding the handling of an arrested female in the circumstances as pertained to this case. Specifically, there is no direction that she should have been handled by a female officer.

The second thing he has told me, again I quote: “The defendant was the arrested person of an attempted murder case, a serious and violent crime, the use of a male officer to interview the defendant was appropriate and in line with police procedures”.

Yes, this was a serious investigation of a very troubled lady. I find it very difficult, whether there are directions or not, to understand why police did not see fit to at least keep a woman police officer present at the interview; whether she played a direct part in the questioning is another matter.

I understand completely that there is no complaint of any kind raised against the officers in this case who conducted the interviews. But it should, as a matter of principle, surely be force policy to have a woman police officer present when a female prisoner is being interviewed, whenever this is practicable. Sometimes it may not be, but if it is possible to have a woman officer present during serious investigations of woman defendants, that must be preferable.

In this case, it is especially important because here the defendant was highly distressed. She was in mental turmoil following a suicide attempt and, accordingly, it is unfortunate, to put it mildly, that a female officer wasn’t at least present while she was being questioned.

Now, I feel that some kind of advice to this effect should be given by the Department of Justice to police stations throughout Hong Kong. It seems that there are no guidelines at all, up to now, which is unfortunate. In the absence of guidelines, the Department of Justice should surely issue some so that this kind of incident doesn’t occur again.

The second matter of concern is this. The data protection certificate attached to every statement, practically, by witnesses made in cases these days - the waste of paper involved is one thing - but it’s completely unnecessary. It’s not part of a witness statement. It seems that there is some false notion that a data protection certificate has to be attached to every witness statement taken by the police. I want to make this quite plain, there is no witness statement, whether the person has a criminal record or not, which ever needs to have such a certificate attached to the statement.

If the police feel they need to cover themselves, all they need to do is to print out a form with the certificate written at the top and to get any witness who has a criminal record to initial the form to show that they’ve read the data protection certificate. That’s all. Not on their statement but in a separate piece of paper.

I just want to take an example of what landed on my desk on Friday in a case that hasn’t yet been heard - it doesn’t matter because there’s nothing prejudicial to the case that I am going to say - but it’s a statement by a pathologist in a criminal case with the number 183/2013. The pathologist is well known in these courts, he is an extremely capable witness and I think it could be taken without being said that he has no record.

How does the record -- how does the statement finish? “I have been told” - I read from his statement directly and I don’t leave out any words - “I have been told that my criminal record, kept by the Commissioner of Police, in accordance with the Police Force Ordinance, chapter 232, Laws of Hong Kong, may be disclosed to the defence in criminal proceeding in future”. Can you imagine what a jury would think when they heard that? It can only mean that he has got a record.

And in the last case that Mr Luk appeared in front of me, just a few weeks ago, he was actually proposing to read a similar statement to that to the jury, of a witness who again, I think, was a pathologist, being read under the provisions which enable the jury to hear the witness’s evidence without actually calling the witness. But I had to stop him before he did because the jury would have thought exactly that, “Oh, a pathologist with a criminal record”. Many, many other statements have got the same error and it has got to stop. The declaration is quite unnecessary.

In this case, a similar sort of declaration, I’ve got a list of Dr Wong at page 136, the pathologist, Dr Lam, Dr Y Poon, Dr J Poon, the housing officer, Miss Eva Leung, the ambulance man, Chung Wai-lun, another ambulance man, Cheung Sze-lok and there are other witnesses as well, just to take the example of some in this present case. It’s perfectly apparent that that wholly unnecessary paragraph is the result of some misguided advice that must have been given to the police, presumably by the Department of Justice.

It’s not just this case or a few cases, it’s all the cases I have handled recently, have all got the same mistake. And as I say, it also adds colossally to the waste of paper because very often these certificates are on a separate piece of paper attached to the statement. I had actually made this clear in previous cases but it’s perfectly obvious that they are just words thrown away in the wind because the practice hasn’t stopped and the advice has been ignored.

The other matter is very simple, and as Mr Arthur has rightly said this morning, it is obviously a mistake, but again, it happens in so many cases that somebody has obviously sent the word out that the statutory declaration at the start of every witness statement must be repeated at the end of the statement.

That statutory declaration is: “I am willing to make a statement to the police. The statement I am about to make is true to the best of my knowledge and belief and I make it known that if I have wilfully stated anything which I know to be false, or do not believe to be true, I may liable to prosecution for a criminal offence”.

Well, it has been repeated at the end of every statement as well and it doesn’t need to be, and as Mr Arthur has said, he accepts that that is so. But it would be helpful if the Department of Justice, again, could issue a directive to all police stations in Hong Kong to make sure that this mistake is not repeated. It’s just additional work and it’s a waste of time for the witness to have to write this out all over again.

Mr Arthur, I know that these words will be lost in the wind if I don’t ask for a transcript.

MR ARTHUR: Yes.

COURT: And if you would make sure it gets to the Director of Public Prosecutions...

MR ARTHUR: I will undertake to do that.

COURT: ...once I’ve got it.

MR ARTHUR: Yes, I will undertake to do that.

COURT: Thank you very much, thank you. All right. Yes, there’s nothing else, is there?

Court adjourns - 11.07 am

26 October 2015