HKSAR v. Chan Ka Lok

DCCC 407/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 407 OF 2016

____________

____________

REASONS FOR SENTENCE

1.The defendant pleaded guilty to 1 charge of "Wounding" (Charge 1); 2 charges of "Assault occasioning actual bodily harm" (Charges 2 and 5); 2 charges of "Wounding with intent" (Charges 3 and 4) and 1 charge of "Criminal damage" (Charge 6).

Summary of Facts

Charge 1 (Wounding 19)

2.About 4:00 p.m. on 19 February 2016, at the junction between Sham Mong Road and Yen Chow Street, an unknown male (later confirmed to be the defendant) attacked Miss LEE (PW1; aged 17) by hitting her right forehead.  PW1 felt being hit by a hard object and was in tremendous pain.  Her forehead was bleeding and an electric plug was found on the ground.  The defendant fled after the attack.

3.PW1 had tenderness and abrasions on her right forehead.  She received 2 stitches.

Charge 2 (A.O.A.B.H.)

4.About 4:30 p.m. on the same day, Miss KOK (PW2; aged 16) was chatting with her classmate outside the Ground Floor lobby of Yee Lok House, Yee Kok Court, Sham Shui Po. An unknown male (later confirmed to be the defendant) suddenly walked behind PW2 and threw a rubbish bin towards the back of her head.  PW2 lost balance and fell on the ground.  The defendant fled after the attack.  PW2's head was swollen.

5.CCTV footage of Yee Lok House captured the defendant's act of assault.

Charge 3 (Wounding 17)

6.About 10:35 p.m. on the same day, Miss WU (PW3) was smoking outside Ground Floor, Wing Kit House, Wing Cheong Estate, Sham Shui Po. Suddenly, she heard a glass-breaking sound.  She turned around and saw some glass fragments on the ground.  When she looked up, an unknown male (later confirmed to be the defendant) hit her on the right side of her nose.  The defendant fled after the attack.

7.PW3's injuries included:  (i) deep nasal laceration; (ii) deep laceration extending from about 5mm below the left medial canthus superiorly down to left alar rim; (iii) mild crush injury over mid-third nasal skin (inferior part of the laceration was a sharp cut); (iv) laceration deep to left nasal bone (with a crack over nasal bone), cut over the nasal muscle and upper and lower lateral cartilage; and (v) about 4mm superficial laceration over left upper eye lids and about 1cm superficial laceration over upper lip regions.  She received a total of 10 stitches on her face.

8.Fragments of a broken beer bottle were seized from the scene.  Prints of the defendant's right middle finger and right palm were found on the outside of the bottle neck.  Human DNA was also found from fragments of the bottle neck.  Such human DNA could have originated from PW3.

Charge 4 (Wounding 17)

9.About 4:40 p.m. on 20 February 2016, Miss LAM ("PW4") was waiting for taxi at the junction between Lai Chi Kok Road and Yen Chow Street. An unknown male (later confirmed to be the defendant) suddenly approached her.  PW4 looked to her right and saw a man wearing a blue jacket and a cap.  At the same time, a glass bottle flew towards her forehead and broke.  The defendant fled afterwards.

10.PW4 had lacerations on her forehead, left upper eyelid and nose.  She received a total of 5 stitches on her face.

Charge 5 (A.O.A.B.H.)

11.About 12:30 a.m. on 22 February 2016, at the junction between Lai Chi Kok Road and Yen Chow Street, an unknown male (later confirmed to be the defendant) attacked Miss CHONG (PW5) by hitting her face with great force, causing her nose to bleed.  The defendant fled after the attack.

Charge 6 (Criminal Damage)

12.The defendant was arrested on 10 March 2016.  Under caution, he admitted having committed the offence in Charge 1.

13.Around midnight on 11 March 2016, the defendant became emotional prior to his video recorded interview.  He pulled up the triangular table in Room 318 of Cheung Sha Wan Police Station, breaking the leg of the table.  He was arrested for "Criminal damage".  Under caution, the defendant claimed that he was remorseful for attacking the girls.  He did so because he could not control his emotion.

Admissions

14.In his video recorded interview, the defendant admitted, inter alia, that he hit PW1's head with an electric plug; he dismantled the cover of a rubbish bin and threw the cover at PW2's upper body; he stabbed PW3's face with a broken beer bottle; he hit PW4's face with a glass bottle; and he hit PW5's face with his right elbow.

15.The defendant also explained that he was just released from prison and could not find a job.  He did not know the victims; he attacked them owing to stress and anger.  He targeted at girls because he was afraid of getting caught.  He wanted to attack the girls with weapons.  He would use any weapon he could find nearby.  If he could not find any, he then attacked the girls with bare hands.

Mitigation & Sentence

16.The defendant is 30 and single. He has 13 conviction records, which included 4 violence-related offences (ranging from Common assault to Wounding 17) and 2 "Criminal damage" offences. Defence solicitor Mr. CHOW informed me that the defendant committed the present offences 4 days after being released from prison.

17.In mitigation, Mr. CHOW submitted that the defendant had a very unpleasant childhood. From the age of 2 to 6, the defendant was arranged by his father to stay with 4 different families. He was ill-treated by those families. When the defendant was 6, his father re-married and the defendant returned home. At the age of 8, the defendant found out that his stepmother is not his real mother. Mr. CHOW stressed that the defendant knows nothing about his real mother and has never seen her before.

18.Mr. CHOW pointed out that the defendant attacked young female victims at random; all assaults were committed with the Sham Shui Po area; whereas the attacks in Charges 4 and 5 took place near Sham Shui Po Police Station[1]. Mr. CHOW invited the court to explore the reasons behind by calling psychiatric reports on the defendant.

19.The 2 pre-sentencing psychiatrist's reports revealed that the defendant suffers from schizophrenia, with a history of polysubstance abuse and drug induced psychosis. He is still actively psychotic with auditory hallucination, referential and paranoid delusion. He believed that all the victims were girlfriends of members of a street gang whom he hated and have allegedly referenced upon him leading to his earlier incarceration. In view of his poor mental condition, unpredictable high violent risks under psychotic influence and poor insight, both doctors recommended a Hospital Order for an unspecified period.

20.This afternoon, Mr. CHOW submitted that a Hospital Order for an unspecified period may perhaps be a sentence too severe for the defendant. He stressed that the defendant is confident that he would recover soon and is determined to turn a new leaf.

21.At my request, prosecuting counsel Mr. HUI have placed before me recent photographs[2] of PWs 1, 3 and 4. In my view, although far from being disfigurement, the scars on the faces of PWs 3 and 4 are still clearly visible 4 months after the attack. I imagine it may take time for them to fade away or some form of cosmetic surgery would be required to have the scars removed.

22.Sentencing of wounding offences is case specific and there is no tariff as such. Sentences in the range of 3 to 12 years' imprisonment are by no means uncommon. It is plain that the defendant is a psychiatric patient who needs professional in-patient treatment. Furthermore, at present, he poses a danger to the community. I must also acknowledge the defendant's need for a prolonged period of psychiatric treatment.

23.If the defendant is sentenced to imprisonment, he would be released into the community at the end of his prison term irrespective of his psychiatric condition. A Hospital Order, however, carries with it a proviso under section 47(2) of the Mental Health Ordinance (Cap.136), which in effect stipulates that his release will be subject to medical opinion. This proviso offers a safeguarding mechanism which ensures that the defendant would not be released unless it is safe for him and the community to do so.

24.Although the psychiatrists did not specifically mention in their reports why they recommended a Hospital Order for an unspecified period, the only reasonable and logical conclusion must be that they are unable to predict how long it would take to treat the defendant and for him to recover fully. Asking the court to impose a time limit on the treatment period in order to eliminate the uncertainty in the length of incarceration[3] seriously undermines the expert opinions of the 2 psychiatrists and clearly constitutes an undue interference of professional psychiatric practice. It would not do the defendant any good and would create an obvious risk to the community.

25.Furthermore, an "unspecified period" does not mean an "indefinite period". The meanings of these 2 terms are utterly different. Both doctors have clearly stated in their reports that the defendant's case would be regularly reviewed by the Mental Health Review Tribunal; and his release shall depend on his progress and is subject to the Tribunal's decision.

26.This is indeed a tragic case. Innocent passers-by who were complete strangers to the defendant were injured. It must have been a devastating and traumatic experience for them.

27.Based on the reasons stated above, I consider that it is in the community's best interest as well as the defendant's to make a Hospital Order in accordance with the psychiatrists' recommendations. Hence, for Charges 1 to 6, I sentence the defendant to detention under a Hospital Order in Siu Lam Psychiatric Centre for an unspecified period. For the avoidance of doubt, the proviso under section 47(2) applies.