HKSAR v. Xiao Xianzhuang

DCCC 763/2018

[2019] HKDC 608

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 763 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap 212. Particulars are that she on 28 May 2018, outside ground floor of numbers 47-49 Tai Tsun Street, Tai Kok Tsui, unlawfully and maliciously wounded Li Chi Yu with intent to do him grievous bodily harm.

Outline of facts

2.The defendant brought a pair of scissors at around 9:30am on the charge date and went looking for her husband, the victim, at the charge address.  She wanted to talk to him about their affairs and the custody of their daughter.

3.A dispute arose and the defendant took out the pair of scissors and stabbed the victim.  The victim was stabbed in his left forearm while fending her off.

4.The defendant fled before the Police had arrived.

5.The victim suffered a 6 x 3 cm laceration to the underside and upper side of his forearm respectively, as well as a 2 cm laceration over his left chest wall.

6.The laceration cut into the connection between a muscle and its tendon, and a complete cut of three of the muscles in his forearm.  These 3 muscles control some of the movement of the wrist and fingers.  The median nerve had a 70% cut.

7.The defendant was arrested a day later.  She admitted to stabbing her husband under caution, the reason being that he did not allow her to see their daughter.

8.The attack was caught by the camera of a nearby parked vehicle.  The footage shows the defendant hitting the victim with a bag she was carrying first, then the victim stepped back to create some distance between them.  There was further body contact between them.  Then the defendant took out a pair of scissors from her bag and stabbed the victim towards the chest and upper body area.  The victim used his forearm to block the attack while moving back.  The defendant gave chase and the two of them moved out of range of the camera.

Previous convictions

9.According to the defendant’s legal representative, as a result of disputes arising out of the custody of her daughter, the defendant had committed an offence of assaulting a Police officer on 10^th January 2018.

10.The defendant was arrested for that and subsequently granted bail.

11.The defendant committed the present wounding case against her husband on 28 May 2018, whilst she was still on bail for the earlier offence.

12.This is a factor to be taken into consideration when sentencing the defendant.

The defendant’s mental state

13.In view of the facts of the case, 2 psychiatric reports, 1 psychological report, 1 probation officer’s report and one updated medical report of the victim were ordered to be prepared. Their contents are summarized below.

Dr Poon’s psychiatric report

14.The defendant is 41, separated and living alone.  She was working as a part-time supermarket cashier before her present remand.

15.The defendant started to hear voices in her late 30s and believed that people were taking her photos and that the telecom company was tapping her phone.  There was self-muttering and frequent temper outbursts, often kicking and hitting her husband.  This probably led to the husband moving out and filing for divorce, leaving their daughter to live with the defendant.

16.In January 2018, the defendant left her daughter alone at home and attacked the Police officer who was investigating the matter.  She was granted bail but her daughter was arranged to be taken care of by her husband under a Care and Protection Order.

17.In May 2018, as a result of the present offence, the defendant was remanded in Siu Lam Psychiatric Centre.

18.In October 2018, the defendant was eventually convicted of the earlier offence of assaulting a police officer and was ordered to be remanded in Siu Lam Psychiatric Centre for a period of 3 months.

19.During her remand, the defendant was noted to have formal thought disorder.  She was diagnosed with paranoid schizophrenia and was put on antipsychotic medication since June 2018.  There has been gradual improvement upon treatment.

20.When interviewed, the defendant was evasive regarding why she had the pair of scissors with her.  She denied hearing any commanding voices or passivity experience at the time of the offence.

21.Dr Poon also observed that the defendant had failed to appreciate the improvement in her mental state was due to medication.  The defendant appeared to expect reconciliation with husband and daughter after her release.

22.It is the opinion of Dr Poon that the defendant is suffering from paranoid schizophrenia in view of previous presentation of delusions, hallucinations and formal thought disorder.  She had shown significant improvement with medication and her current mental state is stable.  It is recommended that there should be continued out-patient psychiatric follow-up treatment.  He is also of the view that, in the long run, release to a supervised setting might be beneficial in view of her sub-optimal insight.

Dr Lui’s psychiatric report

23.According to Dr Lui, who interviewed the defendant on 3 occasions, the defendant admitted to him that she had a pair of scissors on her but denied wounding her husband.

24.There was no previous history of mental illness or abuse of drugs or alcohol.  The defendant was originally from Jiangxi in mainland China.  She has been in Hong Kong for over ten years and is married with a 4-year-old daughter. Dr Lui found the defendant not to be forthcoming about her difficulties and was defensive about her behavior in the wounding.

25.The defendant told the doctor that their daughter is with her in-laws and she had not given much thought to the future with her husband.

26.It is the opinion of Dr Lui that the defendant is suffering from the mental illness of paranoid schizophrenia, but largely in remission.  While hospital treatment is no longer required, the defendant should continue to maintain out-patient treatments for follow up prescription and advice.

Clinical Psychologist Lam’s report

27.It is Ms Lam’s opinion that the defendant’s mental state deteriorated since giving birth to her daughter in 2012, when she had to deal with child-raising and a poor marital relationship with limited social support.

28.She became irritable, impulsive and developed symptoms of Paranoid Schizophrenia.

29.Her situation worsened a few months before the attack, when her daughter was put under her husband’s care.  She perceived her husband and social workers as deliberately making it difficult for her to see her daughter.

30.It is Ms Lam’s opinion that it was “possible” that she committed the index offense under the influence of her paranoia.

31.She also finds that the defendant has limited insight towards her psychiatric condition.  She recommends psychiatric treatment to manage her mental condition and prevent further violence.  Continual counseling, support, guidance and monitoring by professional to instill insight and enhance compliance towards treatment and childcare arrangements are also necessary.

Probation Officer’s report

32.The Probation Officer provided a more detailed account of the background of the defendant as well as her husband.  In gist, the husband used to work as a cook and ran a restaurant with friends in 2012.  The business was sold in 2017 and he worked as a manager of the restaurant.

33.After he took over the responsibility of looking after his daughter in early 2018, he worked as a part-time waiter.  He stopped working after being injured in the present attack and has been living on financial awards from the Criminal and Law Enforcement Injuries Compensation Scheme.  He also received disability allowance as a result of the injuries suffered.

34.The couple started to cohabitate in around 2013.  They got married in 2015, after the birth of their daughter, and they moved into a public housing unit in April 2017.

35.Their relationship was harmonious at first, but in mid-2016 marital conflicts occurred from time to time, with a drastic change of personality in the defendant.  The defendant would argue with her husband and lose her temper immediately when her view was not taken.  The defendant’s emotion became unstable.

36.In December 2016, the defendant locked herself with her daughter at home without reason.  The defendant also began to suspect her husband was having an affair although without evidence.  The defendant would lock the door and not allow her husband to come home and the daughter had to open the door for her father.  One day in June 2017, the defendant changed the door lock because the husband was still late coming home even after she told him their daughter was sick.  As a result of this incident, the husband moved to live with his parents.

37.The defendant looked after their daughter alone after the husband had moved out.  Yet the defendant resisted contact with other members of the community and stayed home most of the time.  She did not bring her daughter to kindergarten since September 2017.  School staff visited the defendant in September 2017 but was refused entry.  They only managed to talk to the defendant through the door.

38.Meanwhile, the Housing Department liaised with different parties including the Salvation Army Redevelopment Scheme, New Life Psychiatric Rehabilitation Association, the Wellness Centre and the school to try to assist the defendant.

39.The headmaster and social worker of the school visited the defendant on 23 October 2017.  The defendant got angry and Police assistance was required.  The defendant promised to bring her daughter to school but she failed to keep that promise.

40.The Housing Department referred the case to Cheung Sha Wan Integrated Family Service Centre of the Social Welfare Department for assistance.

41.The defendant continued to be uncooperative towards all those who were trying to assist. She did not bring her daughter to school, did not respond to phone calls or written invitations, but would approach the staff of the Family Service Centre without notification.  She refused the caseworker to come into her house and failed to attend interviews that she had agreed to take part in.

42.The caseworker observed the daughter showing signs of language delay with weak self-care and social skills.  The defendant refused to listen to the caseworkers and would cry, scream or scold them.

43.The defendant did bring the daughter to school on 28 November 2017, but she was absent again from 3 January 2018 onwards.  On 10 January, the defendant left her daughter alone at home.  The matter was reported to the Police.  When the defendant returned home, she resisted and was arrested, leading to the charge of assaulting a Police officer.

44.According to the Probation Officer, the defendant was assessed and found not to be suffering from any mental illness.  With the consent of the defendant, the daughter went to live with her father and grandparents and has since returned to normal schooling.

45.The defendant was allowed visitations with her daughter but had failed to show up for the first two visits in January 2018.

46.Another visitation was arranged on a day in February, but instead of showing at the scheduled time, the defendant went to the grandparents’ home and demanded to see her daughter.  When they refused to let her in, she called the Police and claimed that they were neglecting the child. Police officers came and found no such evidence and told the defendant to leave.

47.The defendant failed to attend a conference arranged to deal with the family situation in February.  The conference went ahead and it was found that there was high risk of child abuse and they recommended that the daughter be committed to the care of the father and that a Care and Protection Order be sought from the court.

48.The defendant was not able to be contacted after the said conference.  On another day in February, the defendant went to the grandparents’ home to request to see her daughter.  Arrangement was made but 2 days later the defendant went to the school without notification.  The teachers then made the arrangement, but the defendant called the Police and claimed that her daughter was injured, which was not the case.

49.Caseworker visited the defendant at home on 1 March 2018 but she refused to talk.  The defendant was informed of the pending hearing for the Care and Protection Order.

50.Before the hearing, the defendant went to the grandparents’ home on 2 March and took away her daughter and injuring the grandfather in the process.  When the daughter did not show up at school on 5 March, they notified the Police.  5 police officers and two social workers were dispatched to the defendant’s home. There was negotiation and it was agreed that the daughter could stay with the defendant temporarily.

51.The daughter still did not attend school on 6 March 2018.  No one answered the caseworker’s call.  The defendant and her daughter were later located in a nearby park.  The caseworker reminded the defendant to attend the court hearing but the defendant threatened to call the Police if she/he did not leave.

52.At the 8 March 2018 hearing, the Care and Protection Order for a period of 12 months was made and the daughter was ordered to be committed to the care of her father.

53.On the following day, the husband called the defendant and they met at the door of the matrimonial home.  During their conversation, the defendant became agitated and called the Police.  Two police officers were dispatched and they explained to the defendant the contents of the Order and suggested for her to contact the caseworker. The defendant became angry and tore up the paper that the officer had used to write the caseworker’s phone number.  The husband was, however, able to leave with the daughter.

54.On 19 March 2018, the headmaster informed the caseworker that the defendant was wandering around the kindergarten and requested to be a volunteer.  The following day, the defendant again requested to see her daughter on the day without prior notification.

55.Since it was viewed as a high-risk child abuse case, the caseworker of Family and Child Protective Services Unit attempted to contact the defendant, but without success.  A letter was sent to get the defendant to attend an interview on 11 May.  The defendant did not show up on the day and continued to ignore phone calls from the caseworker.

56.On 14 May, the defendant tried to pick up the daughter at school but was unsuccessful.  The following day, the defendant went to the grandparents’ home and caused a disturbance.  Police was called and the defendant left. The defendant then went to the husband’s workplace but he had already left.

57.The defendant continued to harass the grandparents for 3 days. She kicked at their door and scolded her husband and his parents.  The police was called.  The caseworker kept trying to contact the defendant but to no avail.

58.On 28 May 2018, the defendant stabbed her husband, resulting in the present case.

59.Social workers visited the defendant during the present remand.  The defendant is still of the view that it was her husband who caused the incident. She expressed no regret for wounding her husband.  She complained that her husband and grandparents did not allow her to see their daughter and that they were teaming up with the social workers and the school to make trouble for her. She claimed that it was her husband who hit her first on the day and she did what she did for self-defence.  She questioned why her husband was not arrested.

60.The defendant told the probation officer that it is very common for couples to fight.  She gave an example of a friend who chopped her husband and was forgiven after the incident.  She thinks her husband should forgive her.

61.When told that the husband was filing for divorce and custody of their daughter, the defendant said she will fight for the custody of the daughter because she is the one who can better care for the child.  When asked about her reconciliation plan, the defendant suddenly said she will find a boyfriend after her release.

62.The defendant perceives no need for assistance.  She said she would accept probation supervision only if it is the only way to stay out of prison.  She rejected the idea of living in a hostel or half-way house, refused to see the social workers of the Society of Rehabilitation and Crime Prevention.  She only agreed to do so after being told that probation will not be considered if she did not agree to meet with them.

63.The husband was interviewed and he expressed fear towards the defendant and his worry about her discharge at this point in time.

64.Other social workers visited the defendant during the adjournment.  They find that although the defendant seemed to be open to the idea of living in a hostel, they do not think the defendant would really accept such an arrangement.  They find that the defendant has little regard for the Police and the authority of the court.  The defendant lacks insight into her problem and would be hard to deal with especially when she rejects psychiatric treatment.

65.In conclusion, it is the probation officer’s opinion that the lack of insight and commitment, lack of remorse and perception of not requiring psychiatric treatment, refusal to cooperate with and hostile attitude towards social workers and other professionals, the defendant is ‘definitely’ not suitable for probation supervision.

66.The probation officer added that, based on the past conflicts, it is ‘very possible’ that similar incidents would happen if the defendant does not change her attitude before release, and she remains a threat to the husband’s family, the school and any person the defendant regards as against her.

The victim’s updated medical report

67.According to the latest report of Dr Leung, emergency operation to explore and repair his left forearm wound was performed on the day of the attack.  All tendons and nerves that were damaged were managed to be repaired and Mr Li was discharged the following day.  He had since had follow-up treatments as an outpatient and his wounds have healed well.  In his last follow-up on 17 January, his thumb function had improved and there was reduced numbness in his index and middle fingers.  It was expected that he will no longer be requiring physiotherapy and occupational therapy.  Sick leave was granted for his injuries from 28 May 2018 to 31 January 2019.

Updated Probation Officer’s report

68.An updated Probation Officer’s report was ordered to be prepared upon the defendant claiming that there had been a miscommunication with the Probation Officer during the interview which led to the first report.

69.In the updated report, the Officer observed that the defendant appeared to be in an improved mental state, likely due to the fact that she had been taking psychiatric medication under the supervision of the CSD and had been attending appointments at Siu Lam Psychiatric Centre and West Kowloon Psychiatric Centre in the past month.

70.Probation is, however, still not recommended because the defendant continues to think that her assault on the husband was an act of self-defence and that he had provoked her into committing the offence.  The defendant is still angry with the husband and his parents for not allowing her to see their daughter.

71.Despite the husband expressing himself in no uncertain terms that he seeks a divorce from the defendant and sole custody of their daughter, the defendant continues to believe that the husband will accept her if she made a change, and that the daughter would choose to be with her rather than her husband.

Sentencing considerations

72.The maximum sentence for the offence of wounding with intent is that of life imprisonment.

73.While there are no sentencing tariffs, the usual sentence would range from 3 to 12 years’ imprisonment, depending on the facts of each case.

74.In wounding cases involving domestic violence, the Court of Appeal in the case of HKSAR v Chan Chun Tat (陳駿達), CACC 317/2012 identified factors that would assist the court in determining the gravity of the case which would affect the sentence:-

“49. Consequently, many of the factors to which a court will have regard in determining the gravity of a section 17 offence and the culpability of the offender will relate to the type of harm intended to be inflicted, the means by which that harm was inflicted and the circumstances generally surrounding the assault. Thus, without attempting to exhaustively identify all the relevant factors, the usual ones will be the extent to which the assault was premeditated, the reasons or motivation underlying the assault upon the victim, the mental or emotional state of the assailant at the time of the assault, whether alcohol or drugs contributed to the actions of the assailant, whether the assault was committed by the assailant alone or as part of a group, the type of weapons employed, the level of force or aggression and the persistence with which the assault was pressed home, the injuries caused to the victim and the effect of the assault upon the victim and those close to him or her.

50. In arriving at an appropriate sentence the court will have regard not just to the need to punish the offender for his conduct, but also to the sentencing principles of deterrence, both general and individual, and, in appropriate cases, the need to denounce the resort to violence. Of course deterrence and denunciation are always important when there is resort to violence but there may be particular situations that call for greater deterrence, such as in triad gang or contract attacks, or more denunciatory sentences, such as in domestic violence cases.

51. In respect of the latter type of case the courts have long played a role in denouncing a resort to violence. People living together, whether they are husband and wife, parent and child or in any other relationship, inevitably suffer stresses from their work or personal life which may manifest themselves within the home environment in arguments or emotional outbursts. How people, within the privacy of their homes, resolve their problems is not usually a matter that concerns the courts; but the moment the law is broken by a resort to violence in order to solve such problems then the courts will become involved. By their sentences the courts must make clear that violence will never be regarded as an acceptable way of dealing with personal issues.” (emphasis added)

75.Mr Yau for the defendant relies on 4 cases[1] in support of his submission that, despite the Probation Officer’s recommendation against it, the defendant should be put on probation.

76.Of the 4 cases, only one deals with the sentencing for an offence of wounding under s.17. The other three cases deal respectively with robbery, manslaughter and infanticide.  Furthermore, the psychiatric conditions of the offenders in all 4 cases are far more serious than that of our defendant.

77.In the case of AG v Ng Chak Hung, the respondent was sentenced at first instance to a suspended sentence for the commission of a s 17 wounding offence, which is not allowed in law given that it is an excepted offence under Schedule 3 of the Criminal Procedure Ordinance, Cap 221.  The Court of Appeal was left to sentence the respondent afresh upon the Attorney General’s application for review.

78.In substituting the original sentence with the “unusual” sentence of a Probation Order, the Court took into consideration the clear record and remorse of the respondent; the constant friction and irritation caused by the victim, an ex-convict, who had imposed himself to live with the respondent at the time of the offence; the fairly minor nature of the injuries; and the mental state of the respondent.  The Probation Officer there was of the view that, in light of the respondent’s willingness and the support from his neighbours in his rehabilitation, probation appeared to be worthwhile in the case.

79.In light of all the circumstances of the case and in particular the nature of the respondent, the Court of Appeal thought that the interests of justice, interests of the respondent and of society in general will be served by imposing a Probation Order.

80.While there is no doubt that the fact that a serious offence had been committed would not of itself preclude the imposition of a Probation Order, the fact that a Probation Order had been imposed in another case where the defendant also suffered from mental illness but had committed a serious offence does not necessarily mean that a Probation Order is also suitable in the present case.

81.The facts of each case must be considered in its own right and the court must impose the proper sentence in the circumstances of that particular case and that particular defendant.

Factors affecting gravity of offence

82.In the present case, the defendant brought the pair of scissors with her and visited the husband’s workplace.  Given the history we have learned from the Probation Officer’s report, it is the only reasonable inference that the defendant brought the scissors along and had planned to attack the husband with them should he failed to give her what she wanted.

83.I find that the defendant had committed the offence with premeditation. This is an aggravating factor.

84.The defendant had shown little remorse for her commission of the offence.  She does not accept that what she did was wrong.  It is the opinion of the Probation Officer that there is a high risk of her re-offending.  Given the history of the defendant’s conduct towards the husband and his parents, I would have no choice but to agree with the Officer’s observation.  This lack of remorse is one crucial difference between the defendant in our case and the respondent in the said case of Ng Chak Hung.

85.Since according to the psychiatrists, the defendant is in remission and is under proper medication, the defendant’s present attitude towards the Probation Officer should not be as a result of any mental condition.  It is simply the defendant’s personality that she cannot accept other people’s views and cannot accept that she has done anything wrong.

86.This lack of insight and remorse is a dangerous mixture.  It can be seen from the updated Probation Officer’s report that the defendant still firmly believes that at the end of the day her husband will take her back and that her daughter will choose to live with her rather than the husband.  Given the opposite stance of the husband, it is almost inevitable that the defendant will be put under immense stress again should she be faced with any future court rulings in the divorce proceedings that are against her will.

87.Given the history of the defendant’s inability to handle such stress and given her personality, there is a high risk that the defendant may resort to violence again to try to punish those whom she believes had wronged her.

88.Given the defendant’s lack of remorse, the high risk of re-offending, and the seriousness of the circumstances surrounding the commission of the present offence, I find that this is not a case where the defendant can or should be dealt with by way of a Probation Order. An immediate custodial sentence is the only proper sentencing option.

Starting point

89.The attack was with a pair of scissors.  The stabbing was towards the victim’s chest and upper body area.  The defendant continued to give chase after the victim had stepped back.

90.The attack can be regarded as the defendant taking revenge on the victim for taking her daughter away from the defendant.

91.The injuries suffered by the victim was significant, although he appeared to have managed to make a full recovery.

92.I find that given the circumstances of the case, there is a strong need for a deterrent sentence.  To achieve the necessary deterrent effect, as well as to denounce the use of violence in a domestic situation, a proper starting point is that of 3 years 3 months’ imprisonment.

Aggravating factor

93.The defendant committed the present offence whilst she was on bail for the assaulting a Police officer case.  For this aggravating factor, I enhance her sentence by 3 months’ imprisonment.

The defendant’s psychiatric condition

94.On the basis of the psychiatrists’ and psychologist’s finding as to the defendant’s mental illness, I find that a reduction of 6 months from the starting point should be granted for the possibility that the defendant’s mental state might have influenced her decision to commit the present and perhaps even the earlier offence.

95.The only other mitigating factor is the defendant’s timely guilty plea and for that she is granted the full one-third discount.

Final sentence

96.The defendant is, therefore, sentenced to 24 months’ imprisonment.

97.I strongly suggest the defendant to cooperate with social workers while in prison for them to help her to come up with a rehabilitation plan so that she will be able to see her daughter regularly after her release.

98.I also suggest to the Commissioner of Correctional Services that the defendant should be given psychiatric treatment during her remand if needed.