HKSAR v. Ho Ming Tat

DCCC 1137/2023

[2024] HKDC 820

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1137 OF 2023

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REASONS FOR SENTENCE

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1.Mr Ho Ming Tat (“Mr Ho”)  pleaded guilty before me to one charge of Wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap 212. Particulars are that he, on 30 June 2023, at Room 3017, Mei Leong House, Shek Kip Mei Estate Phase 2, Sham Shui Po, Kowloon, in Hong Kong, unlawfully and maliciously wounded Ho Sai Ho (PW1, son of Mr Ho).

Facts admitted by Mr Ho

2.PW1 resided with his father Mr Ho at Room 3017, Mei Leong House, Shek Kip Mei Estate Phase 2 (“the Flat”).

3.On 29 June 2023, at around 11 pm, PW1 returned to the Flat with his girlfriend.  They stayed to rest in PW1’s room.

4.At around 2 am on 30 June 2023, Mr Ho knocked on PW1’s room door and scolded PW1 for bringing his girlfriend home.  PW1 ignored Mr Ho.

5.At around 5:45 am, Mr Ho knocked on the door again, urging PW1 to come out to the living room.  Mr Ho told PW1 if the latter were to bring anyone (meaning a girlfriend)  home again, Mr Ho would stab both PW1 and that person to death.  In response, PW1 said, “Don’t be crazy.”

6.Mr Ho then went into his own room and took out a pair of scissors and stabbed towards the direction of PW1’s upper body.  Instinctively, PW1 blocked the approach with his left hand, resulting in injuries to the area between the thumb and the index finger.  Mr Ho continued to attack PW1 with the scissors for about 20 times over a duration of 5 minutes.

7.Eventually, PW1 managed to block the attacks with a chair and he pushed Mr Ho onto a sofa.  Mr Ho finally stopped.

8.PW1’s girlfriend stayed inside PW1’s room but heard what happened and made a police report.

9.At around 6:03 am, police arrived.  PW1 was found seated on the sofa with injuries to his left palm.  PW1 identified Mr Ho as the attacker who injured him earlier with a pair of scissors because he brought his girlfriend home.

10.Mr Ho was arrested for “wounding”.  Under caution, he admitted stabbing PW1 because the latter brought his girlfriend home and he (Mr Ho)  did not like it.  A pair of scissors 18 cm long was found in the vicinity of the main entrance and seized.  Mr Ho re-affirmed his earlier admission at a later record of interview conducted on the same day.

11.PW1 was sent to the hospital in a conscious state.  Medical examination showed a 2.5 cm deep laceration on the left dorsal hand and a 1 cm superficial laceration on the left proximal forearm.  He was admitted to Caritas Medical Centre on 30 June 2023.  Operation for wound exploration and repair was done on 1 July 2023.  No significant tendon or muscle injury was revealed.  He was discharged on 3 July 2023.

12.On a subsequent follow-up on 19 July 2023, it was found that PW1’s wounds had healed well with no major functional impairment.  No further follow-up was arranged.

Criminal record

13.Mr Ho has a clear record.

Antecedents

14.Mr Ho is aged 71 (70 at the time of the offence), educated to P6 level in Hong Kong.  He is a retiree.  Mr Ho is married and has a son (37)  and a daughter (33).

Mitigation

15.Mr Stephen Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

16.There are no sentencing guidelines or tariffs for the offence of section 19 wounding.  Each case must be decided on its own facts.

17.Mr Wong submitted that Mr Ho’s offending in this case is not at a high level of seriousness.

18.It was further submitted that the attack was not premeditated and the injuries were not serious; that it was unfortunate that a domestic dispute ended up in court.

19.Mr Ho is aged 71 and has a clear record.  He started working in 1965 after Primary 6, first in a printing house, then as a casual worker in a restaurant and take-away deliverer.  In 1969, he became an apprentice in a bakery in Kwun Tong earning around $180 per month, eventually becoming a bakery master in 1973/74 and has since been working as such till he retired in 2012. Before retirement, he was earning around $10,000 per month.

20.Mr Ho got married in 1982.  In 1986, a son (victim in this case)  was born.  In 2000, Mr Ho was provided with public housing and since then he was living there with his family.

21.Mrs Ho has retired.  The son and daughter are both working.

22.Mr Ho has exhausted his MPF monies and depended on government subsidies/ allowances for elderly persons in the region of $4,000 per month.

23.Although living as a family, Mr Ho has a monotonous life and maintained minimum communications with his son.

24.Mr Ho did not like his son’s girlfriend staying overnight because of the limited space and facilities.  In addition, he had the impression his son wanted him to move out of the flat.

25.Since arrest, Mr Ho has cooperated with the police and correctional services.  He expressed deep remorse and pleaded guilty in a timely manner.

26.Mr Ho’s mental health is a concern.  After being remanded since arrest, Mr Ho was transferred from Lai Chi Kok Reception Centre to Siu Lam Psychiatric Centre on 18 September 2023 for “psychiatric assessment for depressed mood, memory decline and hearing voice of deceased”.

27.It was revealed in a Psychiatric Report dated 26 February 2024 that “[i]n the recent two years, Mr Ho reported hearing of non-existing voices of his elder brother and some other relatives who were deceased in both day and night, which would even ask him to kneel down to beg for his forgiveness or speak with some derogatory content.  He also believed that he was being controlled and monitored by mobile phone, which therefore he refused to use phone.”

28.In his account of the offence, Mr Ho told the psychiatrist that he “conflicted with his son at 2 a.m. on the day of offence.  Then he recalled hearing non-existing voices at around 5 a.m. which he was not sure whether it was from his son’s room.”

29.The psychiatrist was of the opinion that Mr Ho “is impressed to be suffering from psychosis.  He is currently remanded at SLPC as we were offering him anti-psychotic medications as he was still actively psychotic.”

30.On the day when plea & sentence date was fixed, the court called for two psychiatric reports on suitability of Hospital Order.

31.Two such reports came back one of which was authored by the previous psychiatrist (Dr Ho Chun Hing).  In Dr Ho’s second report dated 13 May 2024, it was stated that Mr Ho “remained calm and settled in SLPC.  His mood was largely neutral and his affect (sic)  was congruent and reactive.  His speech was coherent and relevant and there were no features of formal thought disorder. He reported active auditory hallucination of hearing a male voice responding to his self-talk.  He denied delusion, suicidal ideation or violent or revengeful ideas.”

32.Dr Ho continues to be of the opinion that Mr Ho “is impressed to suffer from psychosis.  Despite medical titration, Ho still remained psychotic with persistent auditory hallucination.  Further inpatient psychiatric treatment is warranted.  If the court sees fit, I respectfully recommend a four-month Hospital Order …”

33.In Dr Amy Liu’s report dated 14 May 2024, she shared with Dr Ho’s opinion that Mr Ho was suffering from Psychosis and remained “psychotic with persistent auditory hallucination”.  Dr Liu went further to say that Mr Ho “poses risk towards others and further inpatient psychiatric treatment is warranted”.  Like Dr Ho, Dr Liu recommends a Hospital Order for a period of 4 months under Section 45 of the Mental Health Ordinance.

34.In view of all the circumstances of the offending acts (the seriousness of the injury, how the attack came to happen, and Mr Ho’s involvement in that attack in particular), as well as those mitigating circumstances of Mr Ho’s person (his elderly age, father-and-son relationship and remorse in particular), Mr Wong seeks to urge the court to consider whether there are other more suitable methods of disposing of this case than making a Hospital Order as recommended by the two psychiatrists pursuant to section 45(1)(b)  and (c)  of the Mental Health Ordinance, including adopting a starting point of 7-12 months’ imprisonment, giving allowance for his guilty plea.

35.Given the intention of Part III (including section 45)  of the Mental Health Ordinance is to regulate the manner in which persons suffering or appearing to be suffering from mental disorders may be received, detained and treated, and in particular where, as Dr Liu puts it, there are risks towards others, Mr Ho should have no good reasons to oppose a Hospital Order if the court is minded to make one.

36.Lastly, Mr Wong asked the court to make an endorsement under section 45(1A)  of Cap 136 to the effect that the proviso to section 47(2)  should not apply if the court is minded to make a Hospital Order.

Psychiatric reports

37.Two psychiatric reports were called for by the plea court at an earlier mention hearing on 25 April 2024 at the request of the defence.

38.Of the two reports, the one written by Dr Amy Liu is the more detailed. I shall extract parts of it and repeat them below:-

“Ho is diagnosed suffering from Psychosis. The underlying etiology is still unclear. The differential diagnoses could include psychotic depression or organic psychosis. Ho remains psychotic with persistent auditory hallucination. He poses risk towards others and further inpatient psychiatric treatment is warranted. A period of inpatient psychiatric treatment is highly recommended…”

39.Both psychiatrists are of the opinion that Mr Ho is mentally fit to plead.  They both recommend a Hospital Order of 4 months’ duration under section 45 of the Mental Health Ordinance, Cap 136.

Sentence

40.I note that Mr Ho has been in custody since the date of arrest.  In other words, he has been in custody for just under 11 months.

41.The maximum penalty for a Wounding offence under section 19 is 3 years’ imprisonment.

42.I have considered the facts of the case.  I have read the two psychiatric reports called for by the plea court.

43.I have considered the mitigation submissions.

44.Both psychiatrists are of the firm view that Mr Ho is still suffering from Psychosis.  As such, for Mr Ho’s best interests and for the protection of the community, a Hospital Order would appear to be the best sentencing option.

45.Having read the psychiatrists’ reports, I am satisfied that:-

(a)  Mr Ho is a mentally disordered person; and

(b)  the nature or degree of the mental disorder from which Mr Ho is suffering warrants his detention in a CSD Psychiatric Centre or a mental hospital for treatment.

46.In considering whether to impose a Hospital Order in lieu of imprisonment, I bear in mind the interests of Mr Ho and the protection of the public.

47.In HKSAR v Chiu Yu To [2001] 3 HKC 186, 192, Stuart-Moore VP (as he then was)  said:-

“Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.”

48.I am therefore of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of Mr Ho, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a Hospital Order.

49.I am further satisfied that arrangements have been made for the admission of Mr Ho to Siu Lam Psychiatric Centre within 28 days from today.

50.Both psychiatrists recommended detention for a period of 4 months.

51.Before deciding on the length of detention, I have had regard to the time Mr Ho has already spent in remanded custody (including time spent in Siu Lam), and the likely term of imprisonment that I would have passed on him had I taken that sentencing option.

52.After considering all the circumstances, I am not prepared to make an endorsement under section 45(1A)  of Cap 136.

(Mr Ho, please stand)

53.In the premises, I sentence Mr Ho by imposing on him a Hospital Order made under section 45 of the Mental Health Ordinance, Cap 136, authorizing him to be admitted to and detained in Siu Lam Psychiatric Centre for a period of 4 months.