HKSAR v. Chow Lee Hung

HCCC 480/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 480 OF 2016

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ORDER PURSUANT TO SECTION 76(2)

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1.The defendant is 87 years old. He faced an indictment containing one count of manslaughter and one count of wounding. It was alleged that on 6 April 2016, he killed Wong Sik-hung and he wounded Mui Ching-wah. The two victims were fellow residents in a room at the Haven of Hope Woo Ping Care and Attention Home. The Home provides accommodation and care facilities for its residents, who were mainly elderly persons requiring special nursing care.

2.Due to the circumstances of the defendant and the case, a jury was empaneled to determine whether the defendant was fit to be tried pursuant to sections 75 and 75A of the Criminal Procedure Ordinance.  On 22 March 2017, the jury by a verdict of 6 to 1 found the defendant not fit to be tried.  By its verdict, the jury had found that the defendant was under a disability of the mind when he committed the acts of the offences with which he had been charged. 

3.As required under section 75A, the jury went on to determine whether the defendant did the acts of the offences charged.  On 30 March 2017, the jury returned a verdict of 6 to 1 that the defendant did the acts of the offences charged. 

4.The brief facts giving rise to the jury’s verdict were as follows.  In the early morning on 6 April 2016, staff at the Home when carrying out their routine checks of the residents discovered that the two of the occupants in room 402 had been assaulted severely while they lay in their beds.  The two occupants were elderly and bedridden.  The defendant who was also an occupant of the room was not present and was found wandering around on the restricted floor of the Home where his room was located.  His hands and close were spattered with blood.  The defendant suffered with Dementia but was otherwise in good physical shape for a person of his age.  It appears that in the early morning he went to the adjoining bathroom and removed a steel grill from the floor.  He went back into the room and bashed each of the two occupants in turn.  There was no apparent reason for the attack.  The defendant had lived a blameless life and was a person of good character.  In his twilight years he was unable to care for himself and he was a place in the Home.

5.The issue now for the court is what appropriate order should be made as a result of the jury’s verdict pursuant to section 75A. 

Appropriate order pursuant to section 76

6.Section 76(1)(b) provides that when under sections 75 and 75A a finding is recorded that a defendant is under disability and that he did the act or made the omission charged against him, the rest of the provisions of the section apply.  The material provision under this section is subsection (2) which reads:

“(2) Subject to subsection (3), the court shall-

(a) if it is satisfied, on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register established under section 6(3) of the Medical Registration Ordinance (Cap 161)), that it is necessary in the interests or the welfare of the accused person or for the protection of other persons that the accused person be admitted to the Correctional Services Department Psychiatric Centre or a mental hospital, make an order that the accused person be admitted-

(i) in accordance with the provisions of Schedule 4, to that Centre; or

(ii) to such mental hospital as may be specified by the Chief Executive,

as the case may be; or

(b) make in respect of the accused person such one of the following orders as it thinks most suitable in all the circumstances of the case, namely-

(i) a guardianship order under Part IIIA of the Mental Health Ordinance (Cap 136);

(ii) a supervision and treatment order under Part IIIB of that Ordinance;

(iii) an order for his absolute discharge.”

7.Subsection (3) provides that subsection (2)(b) shall not apply where the offence to which the finding relates is an offence the sentence which is fixed by law.

8.Pursuant to section 76, a court may avail itself of one of three options.  The first option is where a court may order that the accused be admitted to a psychiatric centre or mental hospital.  To make such an order, the court must be satisfied on the evidence of two or more registered medical practitioners, of whom two are psychiatrists, that it is necessary to do so in the interests or the welfare of the accused or for the protection of others.  The reference to Schedule 4 is a schedule to the Criminal Procedure Ordinance, Cap 221.  An order under section 76(2)(a) can be made for admission to either the Correctional Services Department Psychiatric Centre or a mental hospital. 

9.The remaining two options are available where the court thinks it is most suitable in all the circumstances of the case that they should be made.  The second option is where the court may make a guardianship order or a supervision and treatment order.  A guardianship order and a supervision and treatment order are empowered under section 44A and section 44D of the Mental Health Ordinance, Cap 136, respectively.  The third option is where the court may order that the accused be discharged absolutely.

10.At the last hearing, I directed that two psychiatrists’ reports be prepared and submitted to the Court.  These reports have been provided and have been of great assistance in determining the appropriate order in the circumstances of this case and of the defendant.

11.Dr S. H. Lui, a Visiting Psychiatrist at Sui Lam Psychiatric Centre in his report dated 20 April 2017, diagnosed that the defendant is suffering from a mental disorder, namely dementia, a progressive degenerative disease of the brain currently in an advanced stage.  He was of the opinion that his condition was expected to deteriorate, and more intense medical and nursing care would be required.  He recommended that the defendant be committed to the Castle Peak Hospital on a Hospital Order for an unspecified period where he would be subject to the review of the Mental Health Review Tribunal under the Mental Health Ordinance, Cap 136.

12.Dr Dorothy Tang, a Visiting Psychiatrist at Siu Lam Psychiatric Centre in her report dated 18 April 2017 diagnosed that the defendant suffers from dementia with psychotic features.  She concluded: “He had severe cognitive impairment and the condition is not likely to improve in the near future given the progressive nature of dementia.”  In her expert medical opinion, she recommended a Hospital Order of unspecified period under section 45 of the Mental Health Ordinance.  She suggested that the defendant could serve his sentence in Castle Peak Hospital where provision has been provided for him.

13.I am satisfied on the evidence of the two psychiatrists that it is necessary in the interests and welfare of the defendant and for the protection of others that the defendant be admitted to a mental hospital in accordance with section 76(2)(a) and Schedule 4 of the Criminal Procedure Ordinance.  As suggested by the two psychiatrists appropriate provision has and can be provided to the defendant at Castle Peak Hospital.

Conclusion

14.In light of the foregoing, I therefore order that the defendant be admitted to a mental hospital in accordance with section 76(2)(a) and Schedule 4 of the Criminal Procedure Ordinance.

Mr Leslie Parry, counsel on fiat, for HKSAR

Mr Andrew Raffell, instructed by James W. L. Li & Co., assigned by Director of Legal Aid, for the defendant