HKSAR v. Lee Ka Fai

HCCC 89/2019

[2019] HKCFI 3006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 89 OF 2019

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

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COURT: The defendant was initially charged with a count of murder. On 18 October this year, before me he pleaded not guilty to murder but pleaded guilty to manslaughter. The plea was accepted by the prosecution. Upon admission of the Summary of Facts, the defendant was convicted of manslaughter on the basis of diminished responsibility.

In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, personal background of the defendant, mitigation put forward on his behalf, as well as all the relevant reports. The court has received reports from three psychiatrists, a clinical psychologist and a probation officer.

Facts of the case

This is a tragic case. The defendant, who was suffering from an episode of recurrent depressive disorder, killed his aged mother in a brutal manner.

The facts which the defendant admitted may be summarised as follows:

The defendant had been living together with his mother in a privately owned flat. The mother was, at the time of the incident, of the age of 77 years. She had been for years bedridden due to health condition, including gallstones and type 2 diabetes. She had expressed to the defendant several times her wish to end her own life.

On 6 October 2017, two days prior to the incident, the defendant made a will bequeathing his property to his mother, or if she would(should?) die first, to other persons and a charity.

In the morning of the 8th, the defendant instructed the only domestic helper at home to go out. He then locked the door, leaving only himself and his mother inside. He then decapitated his mother with a cleaver when she was in her bed. She died instantly from multiple cuts and chop wounds on her neck.

After about 30 minutes, the defendant jumped out of the window and landed on a slope next to the building, attempting to kill himself. He did not die, but suffered serious injuries. He was hospitalised for 36 days.

When police officers arrived to attend to him, he told officers to go to his flat. When officers broke into the flat, the body of the mother was found in her bed. Officers also found inside the flat the blood-stained cleaver which the defendant used to kill the mother, another cleaver and the defendant’s will.

The defendant stated that he could not recall anything which took place after his making of the will. The next thing he could remember was waking up in the hospital. Apart from physical injuries as a result of a jump, the defendant had also suffered from hallucinations for about a week. He felt deeply saddened by the death of his mother. He felt there was no purpose in his life without her.

Defendant’s background

The court was told that the defendant is 36 years of age. He was educated up to Form 5 and had worked in a property management company he ran with his friend. He is single, and being the only child of the family, had been living with his mother before the incident.

He did not have any previous conviction record.

The father of the defendant was a civil servant and passed away when the defendant was only 10 years old. The mother was a Vietnamese Chinese. She met the defendant’s father when she came to Hong Kong in the 1970s with her family, with a view to migrate to Canada. She stayed in Hong Kong since then, got married and gave birth to the defendant. Widow pension had been received by her. She had a benign brain tumour and an operation was performed when the defendant was 12 years old. She had not been in good health and her mood greatly affected.

The defendant started work since 2003, but employment was unstable. He did work as a salesperson and as a clerk, but each employment lasted from two weeks to several months only. Employment became stable between 2006 and 2010 during which he worked for cable TV. He then quit to study a one-year media course, which he did not complete.

In 2011, he set up a residential property leasing company with a friend. The company started to yield profit in 2013. He earned about $10,000 each month.

The defendant did not suffer serious health problem, despite having floaters, hair loss and fractures of cervical spine, left hip and right knee during a fall in October 2017.

Condition of the mother and the impact on the defendant

The report of Dr Vanessa Wong, an expert psychiatrist engaged by the defence gave an account of the condition of the mother, which the prosecution did not seek to dispute. There is also relevant information in some of the other reports the court received.

It was said that the mother had a marked deterioration in health in November 2016 when she complained of abdominal pain. There was a problem in her gallbladder, the exact problem was unknown. An explorative operation was performed, but no definitive diagnosis could be reached. After that, the defendant arranged for his mother to stay in various nursing homes, initially privately operated, but later, due to heavy expenses, to a public operated ones.

The mother also suffered from deep vein thrombosis and required hospitalisation from time to time. In April 2017, he brought his mother home and hired two domestic helpers to look after her. The mother was homebound and later bedbound. She was attended by community nurse.

In the agony of her physical and health problems, she moaned and groaned constantly and had been complaining it would be better to die. She had discussed with the defendant about her funeral and aftermath arrangements. Sometimes the defendant responded by saying that, “If you want to die, we will die together. Once you are dead, I will jump off the building at once.”

The conditions of his mother had greatly affected his mood. He told Dr Wong that he was under tremendous mental stress from caring of his mother and could not bear to see her in pain. He began to have sleep problem and had to hand over his work to his partner. He became socially withdrawn, but did not have increased suicidal ideation. He did not have any negative feelings towards his mother, but her condition caused him much stress. He had to increase frequency and dosage of sleeping medicine and take drug to cope with his anxiety. He continued his psychiatric follow-up but did not tell the doctor about his situation since he thought that there was little use talking to the doctor. He had difficulty stop thinking negatively.

Mitigation

Learned counsel for defence, Mr McNamara, stressed that it is a tragedy and submitted that it is a classic case of mercy killing. He also stressed that there was no intervening or aggravating features such as alcohol or drug abuse. There was no underlying animosity towards the mother nor was there any prior behaviour which might indicate that this was likely to happen.

He asked the court to take into account that the defendant did not have any previous conviction record and accept that the defendant was a loving and caring son. He also asked the court to accept that it was his illness and not any character flaw which caused the defendant to do what he had done to his mother. He asked the court to consider accepting the recommendation of the probation officer and impose a probation order, in particular having regard to the fact that the defendant has been in custody for more than two years.

The defence also produced letters from the following people who pleaded leniency on the defendant’s behalf; from the uncle and aunt of the defendant, a cousin of the defendant and two friends of the defendant. All speak well of the defendant, describing him as a filial and responsible son who cared very much for his mother.

The uncle and aunt stressed that the defendant had been looking after his mother who was suffering from ill health, whilst he himself has psychiatric problem. They believe it was under tremendous pressure the defendant did what he did. They believe the defendant is remorseful and would be feeling guilty for the rest of his life. The cousin said similar things and added that her mother had told her that the defendant’s mother had said if she was to die, the defendant will die also. She thinks taking care of his mother was the only goal of the defendant’s life.

Psychiatric reports on the defendant

Before the court are three psychiatric reports, two from the defence and one from the prosecution. The defence reports as said were prepared by Dr Vanessa Wong and Dr Wong Yee-him. The report from the prosecution was prepared by Dr Bonnie Siu. There are little significant inconsistencies between the reports as regards the background of the defendant. The reports reveal that the mother of the defendant was very caring. The defendant and his mother have been mutually supportive.

The defendant started suffering from depression since Form 4 and as a result his academic performance deteriorated. His memory and cognitive ability dropped and he had difficulty to concentrate and focus. After an unsuccessful attempt to pursue A level studies, the defendant stayed at home most of the time for a few years. When he was 16 years old, he was diagnosed to be suffering from depression. He was hospitalised for about two months in the year 2000 and about five months in 2001 because of depressive mood, deteriorative functioning, reversed sleep pattern, restlessness and irritability.

He was diagnosed to have recurrent depressive disorder and dysthymia. He has seen then been receiving outpatient follow-up. In the report of Dr Vanessa Wong, it was said that cognitive impairment was also noted. It said the defendant displayed inability to concentrate, short attention span and poor memory. He had a low stress tolerance, poor coping skills and felt unable to handle tasks at work. The defendant did not suffer from psychosis or mania.

During the two interviews conducted by Dr Vanessa Wong, no abnormal thought process were elicited. The mood of the defendant was on the low side, but appeared stable. Whilst he has no recollection of the incident, he thought it was a mercy killing and he was fulfilling his filial duty. He acknowledged the means adopted was brutal. He thought he did it because it was most effective and would cause least pain. He said if he had known the outcome of what he had allegedly done, he might not have had the courage to do it. He said similar things to the other Dr Wong.

Dr Vanessa Wong diagnosed the defendant to be suffering from recurrent depressive disorder and at the material time was likely to be experiencing a relapse. In her opinion, it might due to the marked stress from caring of his elderly mother, which would have affected his cognitive functioning and ability to think rationally.

Dr Y H Wong also opined that the defendant was likely suffering from recurrent depressive disorder in the weeks before the incident. And at the material time, he was overwhelmed by the depressive features and was not functioning as well as before. The scope and intensity of his depressive features were consistent with a moderate episode. Dr Wong said the prolonged and unresolved hopelessness and helplessness will lead to a quick deterioration of the mental condition of the defendant. It was possible that the defendant developed profound and delusional feeling of worthlessness, hopelessness and exaggerated guilty at the time of the offence. This could lead to him killing his mother and then committing suicide.

It was possible that the defendant was constantly ruminating over ways to end his mother’s agony and this rumination would likely become irrational and over-pessimistic as his mind became increasingly overwhelmed by depressive thoughts.

Dr Siu, the expert psychiatrist of the Hospital Authority, is also of the opinion that the defendant had probably been suffering from recurrent depressive disorder without psychotic symptoms at the time of the offence. She said the defendant’s severe depression with presentation of negative cognition of uselessness, being guilty and hopelessness had substantially impaired his ability to form a rational judgment. The depression had affected his impulse control and substantially impaired his ability to exercise self-control.

Consideration principles

Manslaughter is a serious offence and section 7 of the Offences against the Person Ordinance provides that:

“Any person who is convicted of manslaughter shall be liable to imprisonment for life and to pay such fine as the court may award.”

This is a case of manslaughter on the basis of diminished responsibility. It necessarily means that the defendant’s ability to understand the nature of the conduct, form a rational judgment and/or exercise self-control was substantially impaired.

In the present case, psychiatrists are of the view that psychiatric treatment in a hospital is not necessary, but outpatient follow-up is required. I consider the appropriate sentence having regard to the expert opinion, which I accept.

In the circumstances where institutional psychiatric treatment is not required as said by the English Court of Appeal in Chambers [1983], 5 Cr App R (S) 190, what the court has to do is to assess the degree of the defendant’s responsibility and whether, and if so, for how much longer the defendant is a danger to the public.

In that case, Leonard J said that:

“In cases where the evidence indicates that the accused’s responsibility for his acts was so grossly impaired that his degree of responsibility for them was minimal, then a lenient course will be open to the judge. Provided there is no danger of repetition of violence, it will usually be possible to make such an order as will give the accused his freedom, possibly with some supervision.”

I also have to take into account two very important matters: (1) protection of human life is a foremost objective of our system of criminal justice. The community is entitled to expect that the conduct of unlawful taking of a life be denounced by a punishment that is appropriate to the circumstances; and (2) particular recognition is given to the needs to protect the vulnerable.

Consideration

Even with a good intention, the defendant has no right to take away the life of his mother even though she was suffering seriously, physically and probably also emotionally. It was unfortunate that even though the defendant had been receiving psychiatric care, he did not let the doctor now the problems he was facing, a course which might have prevented this tragic happening.

The way the defendant committed the offence was violent and brutal. There is, however, no indication that the mother had any prolonged fear or physical suffering. As stated in the Summary of Facts, the mother died instantly. The defendant has been in custody since the incident, which means he has been in custody for slightly more than two years now.

To assist the court in assessing the risk of re-offending, background report from a probation officer, as well as an expert report from a psychiatrist and a clinical psychologist was obtained.

Generally speaking, risk of re-offending in a mercy killing case is usually low, and therefore, having discussed with counsel, I had initially only asked for the probation officer’s report. Further reports were asked as the probation officer indicated that expert input from psychiatrist and clinical psychologist would be useful.

Dr Siu, who gave a report earlier, is of the view that if the defendant continues to receive psychiatric and psychologist treatment, the risk of his re-offending is low. The clinical psychologist, Miss Na finds the defendant to be an introvert, having propensity to pent-up negative emotion. She is of the view that the risk of re-offending with violence, in particular self-harm, is present unless the defendant can gain insight and introspection into his problem. In the light of his low adapted mood management skills and limited stress coping skills, she recommended continued psychological service.

The probation officer is of the view that this might not be a case of purely mercy killing as there were at least three elements in the case. Firstly, the defendant’s desire to terminate the pain, suffering and distress of his beloved mother. Secondly, the defendant’s own stress from not being able to provide good care to her. And thirdly, the defendant’s mental illness.

Judging merely from what had taken place, it was a case of brutal killing which generally calls for a substantial imprisonment term. However, there are obviously other matters to take into account in this case. I have an anxious consideration as to what is the most appropriate sentence to impose in the circumstances of the present case, which will represent an appropriate balance amongst the interest of public justice, the interest of the public and the interest of the defendant.

The court may impose a probation order if it is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, it is expedient to do so. The probation officer said:

“The rehabilitation of the defendant and his responsiveness towards supervision is very much dependent on his willingness to cooperate and follow supervision, which would be affected by his level of cognitive impairment due to his mental problem and the concerned management. There is also a concern about drug compliance of the defendant and monitoring is considered necessary.”

The probation officer considered the rehabilitation of the defendant in an open setting would be quite challenging in the light of the concern about his mental health, the psychological burden on him and his ability to respond to potential stress. She considered this a marginal case for probation supervision.

There is consistent expert opinion that the defendant requires continued psychiatric and psychological follow-up. In my judgment, to assist the defendant in his rehabilitation best serves the interest both of the community and the defendant himself. It also meets the interest of public justice. Hospitalised treatment is not considered necessary. Having considered the whole of the circumstances, taking into consideration the opinion of all the experts, I find that it is expedient to make a probation order as it is in my judgment the most effective way to assist the defendant in his rehabilitation.

Defendant, please stand up.

You have consented to a probation order to be imposed on you. In all the circumstances, as I have said, I impose on you a probation order for 24 months with the following conditions:

(1) You shall reside and/or work as directed by your probation officer;

(2) You shall receive psychiatric and/or psychological treatment as directed by your probation officer, and follow the drug administration as prescribed;

(3) You shall not associate with any persons and/or group of persons as directed by the probation officer;

(4) You shall participate in and complete any community programmes and activities your probation officer deems conducive to your rehabilitation, and shall do so as directed by your probation officer.

Defendant, do you understand all these conditions?

ACCUSED: (In English) I understand all the conditions.

COURT: Yes, thank you.

I advise you that if you breach the probation order or fail to comply with any of the conditions of the order, or if you commit any further offence during the course of the probation order, the probation order may be discharged and you will be sentenced afresh for the present case.

Further, if it is a situation where you commit offence during the course of the probation order, not only that you will be sentenced afresh, the other case will be dealt with separately.

Yes, do you understand that?

ACCUSED: I understand.

COURT: Thank you. Please take a seat.