HKSAR v. Shek Ka Chun

HCCC 351/2018

[2019] HKCFI 1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 351 OF 2018

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Before: Hon D’Almada Remedios J in Court

Dates of Hearing: 26 June & 8 August 2019

Date of Reasons for Sentence: 8 August 2019

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REASONS FOR SENTENCE

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1.The jury by unanimous verdict has found that the defendant did the act as charged for the offence of unlawful act manslaughter.

2.These proceedings followed the special procedures laid down by sections 75 and 75A of the Criminal Procedure Ordinance, Cap 221, on the issue as to whether a defendant is fit to stand trial. 

3.The first issue was whether the defendant was not fit to be tried.  The jury returned a unanimous verdict that he was unfit to be tried in accordance with section 75. 

4.Upon their finding of his unfitness to be tried the jury then went on to consider whether the defendant did the act charged against him in accordance with section 75A. 

5.By the jury’s verdict on the evidence as presented the jury found that on 22 November 2016 the defendant did the act charged against him, namely he committed the act which caused the death of the deceased.  The act which was captured by CCTV recording, was a push by the defendant on the deceased which resulted in the deceased falling backwards onto the floor sustaining serious head injuries which caused his death. 

6.In November 2016, the defendant and the deceased were at the time both residents at Caritas Cheer Home (“CCH”), a Day Activity Centre cum Hostel for moderate to severely mental handicapped persons.  Both were born mentally handicapped, they were unable to speak but were able to walk and move around freelyon their own.  In November 2016 they were aged 30 and 31 years respectively.  The psychiatrists’ evidence was that the defendant’s mental age was between 6 to 9 years old. 

7.After the incident on 1 December 2016 the staff at CCH identified the defendant to be emotionally unstable, he was arranged to attend the Princess Margaret Hospital, on the same day, the defendant was compulsorily hospitalised in the Kwai Chung Hospital (“KCH”).  The defendant has since remained there. Until today a period of 2.5 years has passed. 

8.The staff at CCH said the defendant did not exhibit any aggressive behaviour all along, however some of the staff members had observed the defendant push other residents but it was infrequent.  Mostly the defendant used to stand alone in a corner without any contact with other co-residents. 

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

Orders under s.76

10.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 provides for a defendant to be admitted to a psychiatric centre[1] or a mental hospital[2].  To make such an order the court must be satisfied on the evidence of 2 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 defendant or for the protection of others.

11.The other two options are available where the court thinks it most suitable in all the circumstances of the case to either make a guardianship order[3] under Part IIIA or a supervision and treatment order[4]  under Part IIIB of the Mental Health Ordinance Cap 136.  These orders shall not apply where the offence to which the finding relates is an offence the sentence for which is fixed by law. 

12.The remaining option is an order for absolute discharge[5]

13.After the jury’s verdict I received reports from two psychiatrists Dr Chun King Kong and Dr Leung Pui Hang an associate consultant and a resident specialist at KCH respectively.  I also received two Social Inquiry Reports from, Mr Chan Sui-keung a Medical Social Worker of the Medical Social Services Unit of West Kowloon Psychiatric Centre from the Social Welfare Department. 

14.The reports dated 5 and 11 June 2019 from Dr Chun and Dr Leung respectively considered the defendant was mentally fit for discharge to a hostel under proper supervision by the Social Welfare Department (“SWD”).  They expressed that the defendant was in need of further psychiatric follow-up at outpatient clinic. There is only a low risk for the defendant to reoffend the index charge in future.

15.Dr Chun reported that the defendant throughout his prolonged period of hospitalization in the psychiatric intensive care unit of KCH remained grossly stable. There is no gross mood or psychotic symptom. There is also no gross irritability or severe problematic behaviours. There was no need for further drug titration in the past few months. 

16.Dr Leung reported that the defendant during his initial admission at KCH he infrequently pushed other co-patients that disturbed him.  However, since September 2017, these incidents did not occur anymore.  The defendant’s mood was stable and he was not psychotic.  He had no self-harm behaviour. His medication remained the same since December 2017.  He considered the defendant has a low risk to reoffend the index charge in future with suitable medication and environment.

17.In Dr Chun and Dr Leung’s respective reports dated 3 July 2019, the psychiatrists recommended an order for his absolute discharge. Dr Chun was of the opinion that an absolute discharge is recommended as the defendant is now considered mentally fit for discharge with proper supervision by the SWD. After his discharge, psychiatric follow-up is required at an outpatient clinic. 

18.Mr Chan the medical social worker in his report dated 8 August 2019 set out the brief history of the defendant.  At the age of 5 the defendant was assessed to suffer from moderate grade mental retardation.  When the defendant was around 15 years old he moved from living with his mother and siblings to a private hostel in Yuen Long.  He lived there for about 16 years. In March 2016 the defendant was admitted to CCH.  He had interviewed the defendant at the ward of KCH on four occasions in the past two months however the defendant neither showed responses nor had eye contact with him.  The defendant was unable to express himself verbally.  He stated that according to the KCH ward nurse the defendant could only follow simple instructions such as taking a meal.  His other daily functioning was totally dependent.  The defendant did not have any interaction with other patients in the ward.  The ward nurse revealed that he was emotionally stable with no aggressive behaviour since his admittance on 1 December 2016. 

19.Mr Chan recommended that for the long term welfare of the defendant a placement at a Day Activity Centre cum Hostel would be applied for with close supervision and care at an appropriate time. 

20.Mr Chan provided a supplementary report dated 26 July 2019 whereby he stated that according to Dr Leung the rehabilitation plan for the defendant was that he is fit for discharge and be admitted into a Day Activity Centre cum Hostel – a hostel for mentally retarded persons for intensive care and close supervision to be followed up by outpatient psychiatric medical follow up for his rehabilitation whilst he stayed in a subvented hostel in future.

21.Mr Chan gave evidence in the proceedings before me today to clarify his recommendation in the reports.  He testified that the defendant would be under the supervision of the SWD but his activities and out-patient psychiatric follow up would be monitored by the hostel where he would be admitted.  It was anticipated that the defendant would be admitted to such a hostel on a long term basis.  His behaviour would be reviewed on a regular basis depending on his emotional state by the hostel.  The SWD would in the initial stages be closely supervising the defendant however the defendant would ultimately be left under the supervision of the hostel.  Should the defendant require placement in another hostel the SWD would assist in the application. 

22.Ultimately the psychiatrists, the staff members of CCH where he was residing at the time of the incident, the nurse at the ward of KCH where the defendant has been for the past 2.5 years has expressed that the defendant has been reasonably well behaved.  The defendant has maintained a stable emotion with no further violent act whilst he has been in KCH for the past 2.5 years.

23.It appears that this was an isolated incident when the defendant was emotionally unstable.  What the defendant did was a single act of pushing the deceased resulting in the deceased falling backwards hitting his head on the ground, unfortunately resulting in his death. 

Conclusion

24.As the defendant will remain in KCH until his admittance to a Day Activity Centre cum Hostel for mentally handicapped persons and be under supervision receiving outpatient follow up I am satisfied that the most appropriate order is an absolute discharge.

Ms Diane M Crebbin, Counsel on fiat, for the Prosecution

Mr Andrew Raffell, instructed by Morley Chow Seto, assigned by DLA, for the accused leading Ms Teresa Leung (Pro bono)