HKSAR v. Hong Kar Tai

DCCC 752/2020

[2022] HKDC 177

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 752 OF 2020

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REASONS FOR SENTENCE

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1.Defendant is convicted on his own plea and agreement to Amended Summary of Facts to a charge of wounding with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212.

Facts

2.On 7 January 2020, at around 8:15 pm, the victim, a male aged 44, was chopped by the defendant, his elder brother, at home where they resided with their elderly parents.  The victim later told the police on the phone that he was chopped by his elder brother.  Minutes later, at around 8:40 pm, a team of police officers arrived at the scene.  The victim related the attack to the police officer that he had an argument with his elder brother over some trivial matter in the living room at the flat and that he saw the defendant rushing into the room next to the washroom and took out a knife, and that on seeing this, the victim tried to flee from the flat, and the defendant pursued him to outside the flat and chopped his head and back at the corridor.  The victim then fled to the back staircase and the defendant returned to the flat.  The victim then reported to the police.

3.When the police officers arrived the defendant’s flat, the defendant was found unarmed but was acting emotionally.  They subdued and handcuffed the defendant.  Defendant then told the police that the knife was in his room.  The same was retrieved with blood on it.  Defendant mumbled to the police officer that he himself was the master of the house and that he, the victim, was interfering him from watching TV. Police therefore arrested the defendant.

4.On the corridor outside the flat, police found a piece of victim’s scalp with hair attached.  The victim was later sent to hospital for treatment, and the treating doctor reported that the victim had a history of drug abuse and recurrent pneumonia since the year 2016; that the victim was conscious and yelling in pain, with full limb of power; that the victim sustained multiple chop wounds:-

(a)  2 cm circular left front scalp wound with tissue loss;

(b)  4 cm laceration at right upper back scapular region;

(c)  right mid-back 12 cm oblique linear abrasion;

(d)  left upper arm 6 cm oblique linear abrasion;

(e)  left upper back shoulder blade region linear abrasion 4 cm; and

(f)  4 cm left thigh laceration.

5.The victim was then transferred to the Department of Orthopaedics & Traumatology.  When doctors tried to operate on the wounds, the victim was mentally chaotic and agitated before operation could be done, despite multiple sedative agents given.  They suggested calming him down with anaesthesia for the operation but the victim’s father objected.  They cancelled the operation as the victim was not co-operative and instead managed his wounds by dressing.

6.The following day morning, ie 10 January 2020, the victim developed high fever, confusion and decreased consciousness, requiring intubation for breathing.  He was then transferred to ICU which observed that the victim was critically ill.  He was then given aggressive supportive treatment, but his condition further deteriorated.

7.On 12 January 2020, the doctors sutured the 5 wounds and found no infection nor were they bleeding.  The victim died at 6:50 am on 13 January 2020, ie. on the 6^th day after his admission.

8.Autopsy performed on the victim found that the direct cause of the victim’s death was bronchopneumonia with septicemia.

9.Dr So, who performed the autopsy, suspected that the victim had nosocomial pneumonia complicated with septic shock and multiple organ failure, that the pneumonia was likely acquired during his stay in the hospital and that it was not through the cut wounds that the pneumonia was acquired.  

Criminal record

10.Defendant has a clear record. 

Mitigation

11.Defendant was born in Hong Kong.  He is now 50 years old.  He is single. 

12.Before this incident, he lived with his elderly parents and the victim, younger brother.  His father is aged 76 who works as a security guard whilst his mother is 75 years old and she has all along been a homemaker.  She now suffers from dementia. 

13.The victim brother, aged 44 years old, was a polysubstance abuser with delusional disorder requiring psychiatric follow-ups.  He also has criminal records involving dangerous drugs or Part I poison, and he has been sentenced to The Drug Addiction Treatment Centre (DATC)  in the past.    

14.Defendant himself is an engineering graduate from Imperial College, London.  Upon his return to Hong Kong, he had read a doctorate degree but quitted after one year and later studied a diploma in accounting.  Subsequently, he had worked for 2 months in an accounting firm but quitted because he could not get along with his co-workers.  He then helped his father in a food import company until it closed down in the year 2013.  Thereafter he worked on and off as a security guard.  Prior to the arrest, he had been taking up the role of domestic carer for his mother.

15.Defendant has been known to the mental health service since the year 2002, he ceased the follow-up since the year 2003.  Subsequent to the arrest in this case, defendant has been remanded and treated in Siu Lam Psychiatric Centre.

16.Defence counsel said defendant suffers from schizophrenia and that his conditions improved after taking medication prescribed by doctors.  He also submitted that defendant is able to get along with other inmates and Christian fellows whilst in custody.

17.Parents of the defendant are also supportive and they visit the defendant each week at the Siu Lam Psychiatric Centre since he was detained.

18.Defence counsel submitted that in the evening in question, defendant’s victim brother kept shouting at the top of his voice non-stop for no reason. This was followed by an argument between the defendant and the victim brother over television watching, and defendant was extremely agitated and ended up attacking his brother with the knife.  It was said the defendant was aware of the nature of the attack and knew it was wrong to resort to violence.

19.Defence counsel referred this court to the cases including HKSAR v Fan Tak Wan [2007] 5 HKC 50; HKSAR v Chow On, CACC 194/2005; HKSAR v Kan Wai Man, CACC 503/2003; and R v Tsui Mei Ying [2002] 4 HKC 689.  He submitted that in deciding the starting point in sentencing of this case that the court should consider the particular peculiar circumstances of the case where the 2 brothers, both had psychiatric issues, living under the same roof over a number of years. 

20.It has also been submitted that the defendant has been in custody for 2 years which was the actual serving time should a starting point of 4.5 years’ imprisonment be adopted, taking into consideration the plea reduction and also the CSD remission into account.

21.Defence counsel asked this court to consider defendant’s previous clear record, his guilty plea, his genuine remorse and his deep regret, the parental support for the defendant. 

22.In mitigation, defence counsel submitted the letters in mitigation from the defendant, his parents as well as a fellow inmate.  He asked this court to treat defendant with leniency so that defendant could reunite with his elderly parents as soon as possible.

Discussion

23.On conviction upon indictment of this offence, a person is liable to imprisonment for life.  For wounding with intent offences, there is no tariff or sentencing guideline.  The actual sentence imposed obviously depends on the facts of the particular case.

24.In the case of HKSAR v Hau Ping Chuen [2008] 4 HKLRD 673, the Court of Appeal says that the usual range of sentence for such an offence lies between 3 to 12 years. 

25.In the case of HKSAR v Chan Chun Tat, CACC 317/2012, the court sets out a number of factors to be considered in sentencing of such an offence in order to determine the gravity of the offence and the culpability of the defendant.  The same included:-

(a)  the extent to which the assault was premeditated;

(b)  the reasons or motivation underlying the assault on the victim;

(c)  the mental or emotional state of the assailant at the time of the assault;

(d)  whether alcohol or drugs contributed to the action of the assailant;

(e)  whether the assault was committed by the assailant alone or he is part of a group;

(f)  the type of weapon employed;

(g)  the level of force or aggression and the persistence with which the assault was pressed home;

(h)  the injury caused to the victim; and

(i)  the effect of the assault upon the victim and those close to him or her.

26.Before sentencing, this court has called for a background report as well as psychiatric reports on the defendant and has considered carefully the mitigation done by defence counsel, the letters in mitigation from the defendant, his parents and the fellow inmate, the psychiatric report dated 16 November 2020 by Dr Jane So, the updated report from Dr Jane So dated 17 January 2022 as well as that from Dr Lydia Lam, and the authorities in the area.

27.In the present case, the defendant and the victim are brothers living under the same roof.  The victim is a polysubstance abuser and had quite a criminal history involving drugs.  He had also been receiving psychiatric service long before the present offence.

28.Defendant himself was also known to the psychiatric service since year 2002 but he defaulted follow-up since year 2003.

29.According to Dr So, defendant developed paranoid ideas towards his younger brother, the victim, over the past years.  He believed his brother’s temper outbursts and unreasonable behaviour stemmed from his being cursed.  Dr So said that during remand upon his arrest, defendant had irrelevant speech and thought disorder.  She diagnosed defendant to have schizophrenia and gave him oral antipsychotic medication.  It is said that his psychotic symptoms improved since starting treatment.

30.Defendant told Dr So that he used a knife to harm his brother as he wanted him to stop scolding him.  Dr So said defendant had limited insight towards his own condition.

31.In her latest report dated 17 January 2022, Dr So says that the defendant’s mental condition has improved with antipsychotic medication but he continues to have limited insight towards his own mental illness.  Further inpatient and rehabilitation are required to facilitate defendant reintegrating into community, including the arrangement of supervised accommodation.  She recommended a hospital order for 2 months at Siu Lam Psychiatric Centre under section 45 of the Mental Health Ordinance as resources for psychiatric rehabilitation are more readily available in a hospital setting.

32.Dr Lydia Lam, the psychiatrist, agreed with Dr So in her recommendation.

33.Ms Chan, the probation officer preparing the background report dated 6 January 2022, says that when interviewed, defendant told her that the victim refused to let him turn on the light and the television.  He became angry and took out a knife with the aim to stop him; that he had no intention to hurt the victim badly and was now in deep sorrow for his death.  Defendant had also told Ms Chan that at the time of the offence, defendant himself was looking after his mother and was unemployed.

34.It is clear from the psychiatric reports before the court that the defendant, though not being diagnosed with schizophrenia in the year 2002, was suffering from schizophrenia latest by the time of the offence.  From the police records between January 2017 and February 2020, the brothers had on at least 19 occasions had heated arguments and fights over trivial matters, and police were called to the scene.  This court noted that there was one occasion when the mother of the victim had money dispute with the victim.  It is sad and undesirable that the two requiring psychiatric services had been put to live under the same roof.

35.Father of the defendant said that the victim, a polysubstance abuser, had previously been sent to drug addiction treatment but he continued his drug habit and had kept on demanding money from family to support his substance abuse.  He said that the drug abuse caused the victim frequent emotional outbursts, breaking furniture and electrical appliances at home, and caused disturbance to the neighbour.  Father of the defendant said although defendant also suffer from illness, he took good care of the mother with dementia. Father was of the view that the victim should be responsible for this family tragedy. 

36.It was noted, however, that the father had never pushed the defendant to seek medical assistance for his mental problem.  The father asked that the defendant be released as soon as possible.

37.Neighbour of the defendant also confirmed that the deceased was once sent to hospital for his unstable emotional condition after conflicts with the family, and that often police assistance was sought after dispute in defendant’s household in the past.

38.In this case, defendant committed the offence in a state of rage after argument with his brother.  Defendant’s father’s stance supported the defendant’s contention that the victim was being unreasonable in the dispute. There was absence of premeditation in the commission of the offence.

39.Defendant in his letter to the court said that at the time of the offence, he was already exhausted, looking after his mother.  He lost control as he could not stand the victim brother crying and yelling without reasons non-stop.  He said his brother never cared for his mother and still assaulted his mother and would always utter that he would embrace the defendant and die together.  Defendant therefore used the knife to warn the victim.

40.The father of the victim as well as the fellow inmate of the defendant in their letters in mitigation beg this court for mercy for the defendant and said that the defendant is helpful and is a person of good nature, and they ask for early release of the defendant.

41.Today, defence counsel submitted that both the defendant and his parents agreed to the recommendation by the psychiatrists.

42.Having regard to the nature of the charge, the circumstances of the case, in particular, the mental state and the emotion of the defendant at the time of the offence, the injuries to the victim, the fact that this was not a premeditated attack, the clear record of the defendant, the fact that the defendant has already been detained for 2 years, and having regard to the recommendation by the psychiatrists, Dr So and Dr Lam, this court now sentence the defendant to facilitate treatment and rehabilitation of the defendant, adopting the recommendation by these doctors.  

43.Accordingly, I make a hospital order under section 45 of the Mental Health Ordinance that the defendant be detained in Siu Lam Psychiatric Centre for 2 months.