HKSAR v. Ling Hon Cheung

CACC 452/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 452 OF 2004

(ON APPEAL FROM HCCC 92 of 2004)

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BETWEEN

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Before: Hon Stuart-Moore VP and Stock JA

Date of Hearing: 4 May 2005

Date of Judgment: 4 May 2005

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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.On 10 August 2004, the applicant, aged 34, pleaded not guilty to murder but guilty to manslaughter, on the ground of diminished responsibility.  The prosecution accepted the plea being aware of the applicant’s long history of schizophrenia and having been supplied with a report from Dr Chan Sai-yin.  This expressed the opinion, in the terms set out in the summary of facts, that the applicant was “probably in relapse of schizophrenia” at the relevant time and that “because of the psychotic relapse” this would have impaired the applicant’s “thinking and self-control”.  In Dr Chan’s opinion, the applicant was, at the time of the killing, suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts. 

2.The summary of facts also gave a clear indication of the unusual nature of the case.  The description of the offence is as follows:

“	1.	At about 0740 hours on 26 September 2003 at Man Yee Wan Playground, Man Nin Street, Sai Kung, the Accused was seen kicking and stamping on a man lying on the ground (YAU Tat-ching, aged 52: the deceased).  According to the passers-by who witnessed the assault, the deceased was motionless and did not put up any resistance at the time.  However, the Accused repeatedly shouted at the deceased and said words like “You cause problem to the neighbourhood,” and “You think you are a local bully.  Don’t pretend you are dead, I am not afraid of you.”  The Accused spoke in such a loud voice that some residents living in the vicinity were woken by him.
	2.	When the police arrived a few minutes later, the Accused was still at the scene.  When the police approached him and asked if he had hit the deceased, the Accused said, “It’s me who hit him.  The worst is just imprisonment.  If he fucking dies, I will carry his shoes for him.  The triad society puts a contract on me.”  However, when the police arrested and cautioned him for assaulting the deceased, he said he had nothing to say.  He then uttered words and talked nonsense to himself repeatedly.
	3.	Meanwhile, the police found the deceased lying still on the ground with his nose and mouth bleeding.  When the ambulance men arrived, the deceased was able to answer a few questions.  He then fell into a coma.  The deceased was sent to Tseung Kwan O Hospital at about 0820 hours for medical treatment.  However, he was certified dead at 0909 hours on 26 September 2003.” (Appeal bundle pp. 11-12)

3.The deceased died from the multiple injuries he had received to his head, chest and abdomen.

4.The interview with the applicant, in the presence of his elder sister later on the same day, is briefly set out in the summary of facts.  This shows the applicant as having said that:

“	(i)	he had known the deceased for about six months. The deceased was always drunk and at times, the deceased would ask him to buy the deceased some drinks;
	(ii)	he had killed the deceased by mistake;
	(iii)	‘those people’ plotted together against him;
	(iv)	the deceased had a fight with him and he fought back;
	(v)	the deceased said to him ‘knock me down if you have the guts’, so he knocked him down;
	(vi)	he was abnormal and he was on medication.  Taking medicine failed to put him under control and there was nothing that he could do;
	(vii)	he did not know what was going on and he was abnormal.  Everybody was playing with him;
	(viii)	‘those people’ knew that he was suffering from mental illness, so they put him on the spot.  He knocked the deceased down and he had killed him.  He had nothing to say;
	(ix)	the condition of his nervous breakdown might be too serious;
	(x)	he had tramped on the deceased’s head and chest about 8 to 10 times;
	(xi)	the deceased did not ask him to stop; and (that)
	(xii)	there was no grudge between the deceased and him.” (Appeal bundle pp. 13-14)

The summary of facts continued:

“7. When asked, during the interview, why he had attacked the deceased, the Accused said ‘What reason can there be?  Sai Kung, the whole Sai Kung triad society.  What are you, you going to tell me?  I have said it many times already.’”  (Appeal bundle p. 14)

5.The applicant has been suffering from schizophrenia since 1988 and, at the time of the killing, he was an out-patient at Kowloon Hospital.

6.When these facts were made known to Tong J, he adjourned sentence until 30 August 2004 for up-to-date psychiatric reports to be prepared.  In due course, these indicated that the applicant did not require hospitalization.  Dr S H Lui reported that psychiatric treatment would, however, need to be “life-long” and that the applicant was “in remission of the schizophrenia illness”. 

7.The judge sentenced the applicant to 10 years’ imprisonment against which the applicant seeks leave to appeal out of time.

8.Mr Hagon, on the applicant’s behalf, submitted in writing that having regard to the various psychiatric reports which were before the judge, a sentence of this length was manifestly excessive.  In particular, Mr Hagon pointed to three aspects of the mitigation in the court below which appeared to have been accepted by the judge.  These were that there was no indication that the applicant was a persistently violent person, that the offence was not one where there had been premeditation and that the victim may have done something to irritate the applicant which made him lose his self-control.  Mr Hagon also reminded us of the grounds of appeal originally drafted by the applicant and he brought to our attention the gist of a recent letter the applicant had written to the court.

9.These cases are never easy to decide as the judge indicated when passing sentence by saying:

“… it remains to be the case that the defendant had brutally beaten a person to death.  Although I cannot say he is an immediate danger to the public, yet his condition may mean that he would be much less tolerant to stress and to provocative conduct which might be committed unknowingly by the less sensitive persons who come into contact with him.

In a way it is very difficult to pass sentence in these type of cases and little help can be obtained from previous decisions, but I believe the defendant requires a substantial period of incarceration for treatment and hopefully his illness can be cured for his own benefit and for the safety of the community.” (Appeal bundle p. 9)

10.It is apparent that the judge had given careful consideration to all aspects of this case, not least to the potential danger posed to the public by the applicant as evidenced by the facts of this case, his history and an uncertain prognosis at best.  We can see no reason to interfere with the sentence. 

11.The application, therefore, is dismissed.

Mr Paul Ho, SGC, of the Department of Justice, for the Respondent.

Mr John Graeme Hagon, instructed by Director of Legal Aid, for the Applicant.