HKSAR v. Tsang Man Wai, Raymond

HCCC 195/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 195 OF 2015

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

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COURT: The defendant was tried for the murder of his brother. He was acquitted by a majority of jurors of that charge but was convicted unanimously of the alternative offence of manslaughter by an unlawful act.

Much of the evidence was not in dispute. The defendant was an 'Ice' addict and had been a regular but voluntary abuser of that drug for about two years before the killing of his brother on 24 September 2014. On that day, the defendant had, at about 6 to 7 am, in his bedroom in the family flat, consumed nearly 700 milligrammes of 'Ice'. He said he had consumed 'Ice' from the evening of the 22nd onwards. He had originally planned, he said in evidence, to go to work on 24 September but he had discovered his wallet was missing and, instead, spent some time that morning contacting, or attempting to contact relatives and associates in an attempt to borrow money. He succeeded, he said, in borrowing $2,500 from an ex-employer and, shortly afterwards, at about 10 am, was able to recover his wallet from the police, to whom it had been handed in.

By this time, the defendant had abandoned his intention to go to work. He decided to contact his brother, the victim, so as to repay $2,000 he owed him. He eventually met his brother on the footpath below his brother’s place of work. At some time before this that morning, the defendant had purchased a large sashimi knife. It was a long and sharp knife used to slice fish. He had it in a box in a plastic bag he was carrying when he met his brother.

They went to a nearby café and sat at a table, ordered coffee and had a lengthy conversation. The defendant appeared agitated. Suddenly, he attacked his brother with the sashimi knife, inflicting 22 wounds which, amongst other serious injuries, resulted in a serious injury in an apparent partial disembowelling of his brother at the level of his abdomen, two stab wounds through the heart, a stab wound into a lobe of his lungs collapsing that lobe and a wound through part of his brother’s liver.

The whole of this incident was caught on the café closed-circuit television from the time the defendant and his brother entered the premises to the time the defendant left. The closed-circuit television is graphic; it shows a sudden and frenzied and very violent attack on the brother which continued well after the victim fell prone to the floor.

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 pains. 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 violent under its influence. He had, however, never sought treatment.

An important concern in this case is for the safety of the community in Hong Kong. The defendant, as is almost always the case in Hong Kong, if released into the community, will live in close contact with others; there is no avoiding that. It would be wrong to impose a sentence on the defendant which could result in his too early return to daily life, particularly as he has a history of failing to attend follow-up treatment. Equally, it would be wrong to impose a sentence upon the defendant which resulted in a length of incarceration which was disproportionate to the seriousness of this offence.

The case of Hodgson [1967] 52 Crim App R at 113 together with the Attorney General’s Reference No 32/1996 [1997] 1 Crim App R 261 (S) remain the leading cases. Hodgson’s case elucidated three criteria which must apply before a life sentence of imprisonment can properly be imposed for the offence of manslaughter. In that case, McKenna J, giving the judgment of the court, said:

“When the following conditions are satisfied, a sentence of life imprisonment is, in our opinion, justified:

(1) Where the offence or offences are in themselves grave enough to require a very long sentence’

(2) where it appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and

(3) 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.”

The defendant’s attack on his brother was sustained and ferocious. It resulted in horrific injuries and were it not for the jury plainly accepting, by a bare majority, that the defendant’s mind may have been, in colloquial terms, a blank at that time due to his drug taking some hours before the attack, I have no doubt that every other criteria required to establish the offence of murder was satisfied. Indeed, by their verdict in unanimously convicting the defendant of manslaughter by an unlawful act, they were plainly satisfied that the defendant was in control of his actions, albeit with no formed intention as to the purpose of those actions.

In my view, this offence of manslaughter therefore falls short of murder by only a small margin. To put it another way, it is difficult to imagine with any practicality a worse case of single victim manslaughter than the present. There is no doubt that the first criteria of Hodgson’s case has been met.

As I have said, the defendant has a history of previous physical attacks upon individuals when suffering temporary psychosis from his consumption of 'Ice'. At least one of those incidents was serious, that is the attempt by the defendant to strangle the elderly patient which I have mentioned. Another incident on a separate occasion also involved an attack, this time upon a family member of another patient and, during that attack, the defendant’s own arm was injured as a result of force used in that incident.

Additionally, the defendant suffers from a personality disorder, as I say, which lowers his threshold for violence. It may be, as was said in evidence at trial by the defence psychiatrist Dr Fong, that the defendant’s personality enhances the effect of the drug 'Ice' upon him and so increases his propensity for violence.

I note also that the defendant’s past criminal activity prior to when he says he began taking 'Ice', comprising of at least one crime of violence, that is robbery, and another offence of kidnapping which involved, no doubt, forcible restraint, would support the suggestion that the defendant is, by his personality, that is by his nature, prone to violence.

But whether that be so or not, I am nevertheless satisfied, given the defendant’s history of assault whilst under the influence of 'Ice', that there is a high likelihood of him committing serious crimes of violence whilst on 'Ice' in the future.

In arriving at that conclusion, I take into account the evidence of Professor Tang who gave evidence during this sentencing hearing as well as during the trial to the effect that rehabilitation of an abuser of 'Ice' is a long and difficult process. That is especially so when the addict does not have the support of a stable family and job. The defendant in this case, by his actions, has undermined any support he will receive from his family and has a very unstable history so far as employment is concerned.

I am satisfied that there is a probability of the defendant returning to the abuse of the drug 'Ice' and therefore again committing violent crimes. I am satisfied that the second of the Hodgson criteria is met.

As I have said, the facts of this offence and the defendant’s previous history suggest that the likely return of the defendant to the abuse of 'Ice' in the future will again result in crimes of violence. I note that in the robbery of which the defendant was convicted, a knife was used. I note also that when he was arrested for this offence, in addition to the sashimi knife, the defendant was in possession of a paper-cutter. In other words, the defendant’s violence has the propensity at least to involve weapons.

I am satisfied that the third of the Hodgson criteria is met. I might add that the revision of those criteria in Attorney General’s Reference No 32/1996, which effectively conflated and revised the second and the third criteria, does not alter my view. The revised criteria, as expressed in that case, are equally met and I am satisfied, indeed sure, that the defendant is likely to represent a serious danger to the Hong Kong public for an indeterminate time into the future.

For the above-stated reasons, a sentence of life imprisonment is warranted in this case. I do not believe such a sentence is disproportionate to the gravity of the offence. Accordingly, the defendant is sentenced to imprisonment for life.

So far as the final question is concerned, that is the minimum period of imprisonment which must be served pursuant to section 67B(1) of the Criminal Procedure Ordinance, in my view, that should be a period of 15 years. In arriving at that period, I take account of the facts of the case, including the defendant’s willingness to plead guilty to the offence of manslaughter and his loss of potential reward for good behaviour.