COURT: Defendant, on 10 July 2023, you pleaded guilty before a magistrate at the Eastern Magistracy to a charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Chapter 212. At the same time, you also admitted a Summary of Facts. As a result of your plea of guilty, you were committed here to the Court of First Instance for sentence.
The charge to which you pleaded guilty to sets out that on 24 April 2022, at your home in King Wing House, Shan King Estate, New Territories, in Hong Kong, you unlawfully and maliciously wounded Yu Ho-kee, with intent to do him grievous bodily harm. You are the father of Yu Ho-kee, your son was aged 39 at the time.
At the material times, you, your wife, and your son and his wife resided at the home at King Wing House. Your relationship with your son was not a good one. You often had disputes and quarrels and these kept increasing over the years.
On the date of this offence, at around 9 am, after your son had woken up, he had pulled open the door of the cabinet and accidentally hit the television placed on the cabinet. Upon seeing that, you immediately blamed him and asked him if he intended to smash the television. A quarrel then ensued.
You became agitated and grabbed a round stool. Fearing that you would hit your son with the stool, your son snatched the stool away immediately. Your son forced you into the kitchen and you then suddenly grabbed a chopper and chopped your son. Your son defended himself from the chopping with his right arm. Nevertheless, he was unable to do so and you then chopped his forehead.
Your son had suffered multiple chop wounds over his head, his arm, his hand, and received deep to the bone wounds and deep into the muscle wounds. Your son also incurred a fractured skull as a result of you chopping him.
Your son was hospitalised for about 10 days thereafter and had during his admittance in the hospital had surgery. The follow-up on 25 May 2022 found that your son’s wounds had healed well with no signs of infection. The left elbow range of motion was from 5 degrees to 100 degrees and he has had to receive further rehabilitation.
At the time of the offence, the police were called. You were arrested for the offence of wounding. Under caution, you immediately admitted that you chopped Yu Ho-kee with the knife but you said you did this out of impulse.
It is clear from the facts of this case that after you had realised the seriousness of injuries that you had caused to your son, you told your wife to immediately call the police. In the Summary of Facts, it states that your relationship with your son has been poor for years.
You are now 74 years of age, educated up to Form 3. You were originally a plastic factory worker and then worked as a security guard. You are a man of clear record. You are married and have two sons, the victim of this charge being your youngest son.
Your counsel, Mr Keith Fung, had on the first appearance before this court when you came up for sentence on 18 October 2023, submitted to this court as he has done today that you and your family appreciate that you have a mental problem or illness and you yourself were of the opinion that a hospital order would help you to recover from your mental illness.
As at 18 October, I had had before me four psychiatric reports which were called for at the magistracy. They were the first lot, that is two reports, were written in June 2022. In those reports, the psychiatrists Dr Jane So and Dr Lydia Lam had both recommended a hospital order for 3 months. At that time, you were remanded at the Siu Lam Psychiatric Centre.
In January 2023, the magistrate called for a further two reports, those two reports also by Dr Jane So, but this time by another visiting psychiatrist Dr Lin Hiu-yu, were of the opinion that you were mentally fit to plead and that further psychiatric care was required for your condition.
So by the time this case came up for sentence some nine months later, I called for updated psychiatric reporst again from two psychiatrists, given your mental condition. The reports I received were dated 30 October 2023, again by Dr Jane So and this time by another visiting psychiatrist, Dr Lau Hoi-ki compiled the reports. The psychiatric reports maintained that you are mentally fit to plead. However, those reports state that further compulsory in-patient treatment is not recommended and that out-patient follow-up treatment is recommended for monitoring your condition.
As Mr Fung correctly states today, the psychiatrists are no longer recommending or suggesting a hospital order, despite the fact that you, yourself think you require assistance and treatment through medical care and an hospital order.
On 18 October, apart from seeking two further psychiatric reports, I also called for a background report. I shall return to the probation officer and that background report later in my sentence.
As Mr Fung has correctly conceded, the offence to which you have pleaded guilty to is a very serious offence because the offence contains the ingredient that you, the offender, intended to inflict really serious injury at the time of the offence. However, sentencing in relation to section 17, wounding with intent, is very much case specific and there is no tariff as such. Sentences generally range between 3 to 12 years’ imprisonment as can be seen in Cross and Cheung, 10th Edition, page 874.
Very shortly after the commission of this offence, defendant, you were admitted into Castle Peak Hospital. You were observed to have depressive and psychotic symptoms. Shortly after that, you were moved to the Siu Lam Psychiatric Centre. Since then, for the last 17-odd months, you have been treated for your mental condition at Siu Lam Psychiatric Centre.
The psychiatrist who examined you shortly after the commission of the offence diagnosed you as suffering from severe depressive episode with psychotic symptoms at the time of the offence.
You have had no family history of mental illness and you were not known to the Mental Health Service prior to your commission of the present offence. You had reported to the psychiatrist that your mental state was stable in the past until you had a stroke in 2012, after which you easily became irritable over trivial matters.
You also had frequent conflicts with your younger son, the victim, who lived at home regarding your son’s bizarre behaviour. You felt frustrated at your son’s behaviour at home which led to frequent complaints from your neighbours. During the pandemic, your mood further worsened. You had increased difficulty in controlling your temper. You experienced pervasive depressed mood, reduced energy level, poor sleep, and reduced appetite.
Prior to this, you had coped with the stress by hiking but you were unable to hike as frequently and often had to stay at home due to the pandemic.
As can be seen from the background report submitted by the probation officer at paragraph 5, after she had interviewed your younger son, your wife, and your elder son, the victim in this case has started manifesting bizarre behaviours when he completed Secondary 3. At the time, your son denied having any problems and refused to see a doctor. After the events of this case, your son was assessed to be suffering from obsessive compulsive disorder with autistic features and was required to attend follow-up at the Tuen Mun Mental Health Centre.
According to your wife, your son now takes psychiatric drugs daily and has improved with drug compliance. Your son is also assisted by his older brother. Your son is receiving assistance from other organisations and it appears with medical treatment and community support, your son has achieved progress and his bizarre behaviours were reduced significantly.
Your son himself has said that the psychiatric treatment on his condition has been effective and has improved his behaviour greatly. He now no longer slammed the doors and he washed his hands less frequently. Twas confirmed by your wife. Since the conflict used to arise from his bizarre behaviours, your son believed that his progress can avoid the discontent between yourself and him and avoid conflicts. Your son has showed confidence that he will have a better mental state with the assistance of his treatment.
It is clear to me from the reports that at the time you committed this offence, you were diagnosed with a significant mental illness. The attack on your son occurred after an incident of him again slamming doors and a quarrel ensued between yourself and him.
The psychiatrist has confirmed that right before you had chopped your son, you had heard voices asking you to chop your son. The psychiatrists have also stated that prior to you chopping your son, in the months prior to that you had sometimes heard voices commenting that life was unfair and that you should chop him.
As Mr Fung has correctly pointed out, now that the two psychiatrists do not recommend a hospital order, the most appropriate sentence in this case, given the gravity of the offence, is one only of imprisonment. In sentencing you, I must take into account that you had suffered from a mental illness which played a part in the commission of this offence. The Court of Appeal held in HKSAR v Chiu Peng [2002] 1 HKLRD 185, that the court could properly allow a discount to the sentence to reflect the diminished criminality or culpability.
The court applied the case of Parnis v R [1944] 126 ALR 423. In Chiu Peng, the Court of Appeal allowed a discount of 6 months’ imprisonment as the accused had committed the crime under an abnormal state of mind. In other words, the accused knew that it was wrong to commit the crime but did not appreciate that the commission was as serious as it was, therefore the degree of culpability was thus lessened.
Appearing before me today on behalf of the prosecution is Mr Isaac Guan, prior to his appearance was former Senior Public Prosecutor, Ms Grace Chan who I am informed has since retired. On 17 October, she submitted additional sentencing authorities that the court consider in relation to sentencing accused with mental disorders. They were Parnis v R [1993] 49 FCR 304, R v Tsiaras [1996] 1 VR 398, R v Wiskich [2000] SASC 64, HKSAR v Chiu Peng [2002] 1 HKLRD 186, R v Tsui Mei Ying [2002] 4 HKC 689, R v George [2004] 149 A Crim R 38 and R v Verdins [2007] 16 VR 269.
The court has considered all of these cases but the principle really as stated in Verdins to which the Hong Kong courts have had regard to, and have referred to in Chiu Peng held that whereas general deterrence is a relevant consideration, in every sentencing exercise it is a consideration to which less weight should be given in the case of an offender suffering from mental disorder or intellectual handicap.
In the case of Verdins, in the Australian Court of Appeal, they held impaired mental functioning, whether temporary or permanent, was relevant to sentencing in at least the two following ways amongst others that the court therein held. The first was the condition that reduced the moral culpability of the offending conduct as distinct from the offender’s legal responsibility, where that was so the condition affected the punishment that was just in all the circumstances, and denunciation was thus likely to be a relevant sentencing objective. The other, amongst the others, was whether specific deterrence was to be moderated or eliminated as a sentencing consideration. Likewise, dependent on nature and severity of the symptoms of the condition exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or the date of sentence was heard.
Mr Fung has boldly suggested a term of imprisonment of approximately 5 to 6 years’ imprisonment for this defendant. As noted earlier, there is no tariff in this case, however it is a term which is similar as was given in the case of Fan Tak Wan [2007] 5 HKC 50 which is the committal bundle.
In that case, the applicant had pleaded guilty to one count of wounding his wife with intent. He attacked his wife whilst she was asleep using a kitchen chopper to deliver multiple blows to her head, face, hands, and right arm. The applicant said they had been in a marital discord and his wife demanded they divorced. The trigger for the attack was that earlier in the same day, the applicant begged his wife not to divorce but she denigrated him.
The wife suffered multiple chop wounds over her face and had deep chop wounds over both hands with the bone and tendons exposed. The tip of her right thumb had been amputated. She also had a fractured skull. Her wounds had subsequently healed. The couple had become reconciled and wished to resume life together whilst the wife had also forgiven the applicant.
The court held that a starting point of 6 years’ imprisonment was correct but the weight to be given to the element of forgiveness by the victim of a wounding with intent was lessened the more serious the nature of the injury was.
In this case, I must consider what is the most appropriate term of imprisonment. It is of no doubt that the offence the defendant has committed is a grave offence to which his son was seriously wounded, although the wounds have now healed.
The defendant is 74 years of age, 73 at the time of the commission of this offence and has a clear record. This shows that it was out of character. It is clear to me that sadly had the son been diagnosed prior to the date of the offence, the defendant might have understood or realised why the son’s behaviour was so bizarre for so many years.
It is never too late to be diagnosed with a mental illness as was the son after the offence, but maybe and it would appear that due to the circumstances after the defendant had a stroke and not being able to release the stress and tension caused by the conflict of the son as a result of the pandemic, this offence sadly occurred. This tension between them might have been avoided had the son been diagnosed at a very early age.
At the time of the offence, the defendant was suffering from a mental illness. I take all these factors into account when considering an appropriate starting point. Clearly, the defendant’s mental illness played a part in the commission of this offence.
Taking into account all the factors as I have expressed, I consider an appropriate starting point to be one of 6 years’ imprisonment. Although Mr Fung has stated the son has forgiven his father, it is apparent from the probation officer’s report at paragraph 6 that the son only says he does not hold any resentment against his father. I do not consider this to be forgiveness, but in any event given the gravity of the offence, even if it was forgiveness, I do not attach any weight to that to reduce the sentence any further.
The strongest mitigating factor is your plea of guilty at the earliest opportunity and for that, defendant, you shall be awarded the one-third discount. In the circumstances, you defendant are sentenced to serve 4 years’ imprisonment.