Secretary for Justice v. Lam Kai Wah

CAAR000008/1999

CAAR 8/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 8 OF 1999

(ON APPEAL FROM HCCC 174 OF 1999)

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Coram: Hon. Stuart-Moore VP, Mayo VP and Leong JA

Date of Hearing: 16 March 2000

Date of Judgment: 16 March 2000

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. This matter comes before us as an application by the Secretary for Justice, with the leave of the Chief Judge of the High Court which was granted on 12 November 1999, for a review pursuant to section 81A of the Criminal Procedure Ordinance, Cap. 221, of the sentence of four years' imprisonment which was passed on Lam Kai-wah, the Respondent, on 28 October 1999 by Gall J. This sentence followed the Respondent's plea of guilty to causing grievous bodily harm to Madam Law Ka-wah (the victim) with intent to do so, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap.212.

2. In view of the particularly grave nature of this allegation, it is desirable to refer to the facts in some considerable detail. Taking these largely from the Summary of Facts, it is clear that on the day of the offence, the victim, who lived with her family at North Point, made her way, at about 8.00 a.m. on 16 March 1999, to the MTR to take her usual train to go to Wanchai where she worked as a typist. She waited for her train on platform 2 at North Point station. She was standing in the middle section of the platform and about a foot behind the yellow line. There were a number of other commuters at the time she was there, but the platform was by no means crowded.

3. The victim heard the announcement being made of the train approaching. While the train was still travelling at a speed of about 65 km per hour, the Respondent pushed the victim from behind. She fell onto the track just as the train arrived at the station. With considerable presence of mind, the victim remained calm and stayed lying between the tracks as the train went over her. Sadly, the wheels of the train crushed her left hand leaving her in terrible pain. She had no idea who had pushed her. As it turned out, the Respondent had picked on a total stranger to push into the path of the oncoming train.

4. Mr Cheuk Chi-man, who is deserving of high praise for his public-spiritedness in what happened later, had witnessed the event at the platform and observed the Respondent deliberately push the victim into the path of the train. He watched the Respondent leave the platform and followed him to platform 1 where he lost sight of him. Mr Cheuk went up to the concourse where he saw a police sergeant who was making inquiries. Mr Cheuk was describing the incident to the sergeant when he saw the Respondent coming up the escalator from platform 1. Mr Cheuk immediately pointed out the Respondent who was then arrested. The Respondent said that he had taken some medicine for toothache and complained of feeling dizzy, but he admitted that he had pushed the victim onto the track.

5. After the victim had been rescued and taken to hospital, it was found that she had suffered a very serious crush injury to her left hand and wrist. The left ring finger and little finger had to be amputated. The skin on the left middle finger had been completely torn away leaving the bone and tendons of this finger exposed. Her index finger and thumb were intact, but the skin from the structure of the palm and the dorsum of her left hand had been torn away. X-rays showed multiple comminuted fractures of her metacarpal bones which are between the wrist and the fingers. The ulna head was dislocated. There was also a fracture of the left radius, the bone on the outer side of her forearm. The wounds and joints were severely contaminated.

6. As a result of emergency surgery, further tissue had to be removed to get rid of the contaminated areas. The left radius was fixed with a plate and screws. The hand skin loss was covered by abdominal skin. A series of surgical operations was carried out between 16 March and 26 August 1999 in an effort to make some sort of reconstruction of the victim's hand which will permanently be left severely disabled.

7. The Respondent was examined by two psychiatrists during March 1999. It was their view that the Respondent had the capacity to form the intent to cause serious bodily harm and that he was conscious of the consequences of his actions at the time of the offence. He was found not to be suffering from any mental disorder.

8. This case will have caused very great concern amongst users of the MTR and the railway system generally. To such travellers, what happened to the victim in this case might well be described as everyone's worst nightmare, to be deliberately pushed from behind in front of a fast moving train whilst it approaches the station.

9. It was the principal submission of Mr Arthur Luk, on behalf of the Applicant, that the sentencing judge failed to have proper regard to what Lawton LJ, in R v Sargeant (1970) 60 Cr. App. R. 74 at 77, said were the four words which, in combination, should be borne in mind as the classical principles of sentencing, namely, "retribution, deterrence, prevention and rehabilitation".

10. In particular, having regard to the grave nature of this crime and the widespread concern it will have caused amongst the public at large, quite apart from the appalling trauma caused to the female victim, it was submitted that the judge had wholly failed to pass a sentence which demonstrated that society will not tolerate this kind of conduct. A sentence was called for, it was submitted, which truly reflected the abhorrence which will have been felt by all sensible and right-minded people. It was argued, in other words, that the judge had sentenced the offender without any proper regard for the terrible nature of the offence itself of which the judge seemed on this occasion to have lost sight.

11. In passing sentence, the judge referred not only to the two earlier reports of psychiatrists but also to a third report which was later prepared on behalf of the Legal Aid Department by Dr Barry Connell. All of the reports indicated that the Respondent was aware of what he had been doing, that he knew what he was doing was wrong, and that he was not suffering from any psychiatric disorder.

12. Obviously, to any rational person what the Respondent did is perhaps explained as the act of a madman. However, in the expert opinion of the three psychiatrists this was not the case.

13. Dr Connell, who examined the Respondent in September 1999, prepared a lengthy report about him. In essence, this said that the Respondent was 41 at the time of the offence and unemployed and had a low average I.Q. His childhood and adolescence had been fairly isolated and he had acquired few friends. Since leaving school, he had essentially had no real friendships outside his home. He had never had a female friend. Apart from a year of working in a packaging company, he had basically worked at home for his parents. The Respondent had never developed specific interests or hobbies except that occasionally he would read comic books. He had never been involved in any physical altercation.

14. The Respondent's account to Dr Connell suggested that, until shortly before the offence, he had never experienced symptoms which suggested any overt emotional disorder. He had led a quiet, sheltered life, cared for by his parents until the time came when he had to care for his parents. It is apparent that some years ago the Respondent's father suffered a stroke and, just two weeks before this incident in March 1999, the Respondent was made aware that his father was suffering, sadly, from cancer. It is that feature of the case which had triggered this motiveless crime.

15. On the day of the offence, the Respondent took his niece and nephew to school as was his usual routine but, unusually for the Respondent, because by then his father was in hospital, he wandered around for a time before going home. In the event, he went into the MTR where he bought a ticket thinking about "going somewhere". He told Dr Connell that at the time he was "not in a good mood", and that he remembered standing behind the alleged victim and thinking to himself that she was "too close" to him. He then recounted how he suddenly pushed her with both his hands before he ran away.

16. Dr Connell concluded that the Respondent could not have been in a normal state of mind at the time bearing in mind his previous non-violent character. However, he found that even if, as was said by the other psychiatrists, "his state did not fulfil the criteria for a mental disorder, his mental state was clearly abnormal and additionally was not suggestive of an unrecognised antisocial tendency".

17. At the time of the alleged offence, Dr Connell said he believed that the Respondent's mind was:

"muddled by anxious, worried ruminations, and impinged upon by strong emotions. It was in such a state that he suddenly thought of pushing a woman who was in fact not encroaching upon him and, in that moment when he considered the thought, he impulsively acted with no reasoned consideration of consequences. Emotionally like a child he lashed out."

18. Dr Connell found that the Respondent was not at the time of his examination suffering from a depressive illness as, he reported:

"might be expected with the passage of time, the concern of his family and his present belief his father will get better. He remains a vulnerable man who, in the future, will probably be further tested by life, and needs to develop appropriate ways of coping."

19. The judge, having referred to the psychiatric reports, in his sentencing remarks went on to say this:

"Given that your condition of mind has been found to be unimpaired as to the act which you committed and given your plea, you must therefore have intended to injure her by pushing her in front of that approaching train. That was an act which had a high potential for causing considerable harm to Miss Law and, in fact, a high possibility of causing her death.

I do not sentence you on the basis of attempted murder because you have not entered a plea to that, but I must sentence you on the basis that this is a very serious case of causing grievous bodily harm and when intending to cause some grievous bodily harm.

In your favour is your early plea and the fact that you are now in your 40's and you have committed no (previous) offence against our laws. I take into account your remorse and the regret that you have expressed, and your apology to Madam Law. She was seriously hurt and to some degree crippled. I must take that residual disability into account when assessing penalty.

I have given anxious consideration to your mental state at the time the offence was committed. You were not suffering from any psychiatric illness. You were suffering from a psychological disturbance. That, however, did not affect in any way your knowledge of what you were doing, nor the fact that you formed the intent to do what you did. At the most, it would have appeared to have made you act uncharacteristically and out of normal character.

Taking into account the maximum penalty for the offence which you committed, which is one of life imprisonment, the severity and aggravated nature of the offence, and those mitigating factors which I have set out, I take as a starting point six years' imprisonment, which I reduce to a period of four years' imprisonment."

20. Mr John Wright, appearing on behalf of the Respondent, in a most articulate submission, has sought to justify the judge's approach to sentence which, he submitted, legitimately balanced not only the gravity of the crime itself, but also the circumstances of the offender. He highlighted some aspects of the psychiatric reports. These, of course, included the references to the Respondent's reclusive background which has made him a vulnerable individual who was undoubtedly ill-equipped to cope with the stresses of life and the Respondent's highly emotional state resulting from his father's serious illness at the time of the offence.

21. Mr Wright made the valid point that the judge appeared to have been fully aware of all of the aggravating circumstances of the offence and in particular that he was not sentencing the Respondent for attempted murder which had been left on the file by the prosecution. He suggested that this was a case which did not call for a deterrent sentence as there was no suggestion that this kind of offence is one which is prevalent or, indeed, that the Respondent was ever likely to commit such an offence again.

22. We have considered the submissions on both sides with great care but we are left in no doubt that the sentence did altogether fail to take into account the true gravity of this offence and failed also to have sufficient regard to the public interest and the need to deter potential offenders. What this Respondent did was intended to cause the victim really serious harm, and his deliberate intentions were in fact realised. Whatever anger it was inside him that drove him to do this, he took his anger out on someone who was a completely innocent victim. It is no exaggeration to say that it borders on the miraculous that that victim was not even more seriously injured, dreadful though the injuries she received must be. No one who deliberately pushes another into the path of a moving train could sensibly expect that the victim would not suffer terrible physical injury and life-long psychological trauma stemming from it.

23. We were, furthermore, by no means persuaded by the suggestion that the Respondent poses no great danger to society in the future, despite Dr Connell's eloquence as a psychiatrist and Mr Wright's as counsel. Mr Wright is quoted in the papers before us, at page 19R, as saying in his mitigation speech to the sentencing judge, perfectly properly and in complete accordance with the evidence and his instructions:

"This was certainly an unpremeditated act. This wasn't a situation where he went down to the MTR looking for a victim. It was just suddenly this poor lady appears in front of him and he decides to lash out because he thinks, rightly or wrongly, that she's too close to him and he pushes her on to the track, but certainly there was no plan, there was no reason to pick on her. They had no exchange of looks or words, she was a completely harmless individual who just happened to be in the wrong place at the wrong time. And one of Dr Connell's remarks is, 'He lashed out like a child.'"

24. This characterisation powerfully makes the point that, whilst generally a gentle person in a detached world of his own, the Respondent is capable, rather like a child, but with adult strength, of unleashing an act of great violence without any warning. Clearly the public deserves protection from him. However, as all three psychiatrists were unable to find evidence that the Respondent will pose a long-term danger to the public, we have concluded that there would be no purpose in adjourning this matter for any further report with a view to consideration being given to the imposition of a life sentence.

25. We have come to the conclusion that in order to provide members of the public with proper protection for an offence as grave as this, a starting point of at least fifteen years' imprisonment following a contested trial would be appropriate. The Respondent pleaded guilty from the outset and must receive full credit for this to the extent of a discount of one-third.

26. We therefore allow the application brought by the Secretary for Justice. We quash the sentence of four years' imprisonment imposed by the judge and substitute this with a sentence of ten years' imprisonment.

Representation:

Mr Arthur Luk, DDPP and Mr Raymond Cheng, GC, of the Department of Justice, for the Applicant.

Mr John Wright, instructed by the Legal Aid Department, for the Respondent.