HKSAR v. Ho Yuk Nog

DCCC 1035/ 2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1035 OF 2008

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Before: Deputy District Judge Eddie Yip

Date: 6 Jan 2009 at 11:51am

Charge: Wounding with intent (有意圖而傷人)

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Reasons for Sentence

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The charge

1.The Defendant is convicted of a charge of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance (Cap. 212) on her own plea.  The location was Room 302, Yuet Tai House, Tin Yuet Estate, Tin Shui Wai, Yuen Long, New Territories, Hong Kong.   

The wounding

2.The victim and the Defendant are a married couple.  In 1997, the Defendant moved to live in Hong Kong permanently.  They have a 13-year-old daughter.  They reside in a flat in a public housing estate. 

3.In 2007, the couple’s relationship deteriorated.  The Defendant shared the bedroom with the daughter whereas the victim slept in another bedroom. 

4.At 8 p.m. on 16 September 2008, the previous day before the offence, the victim returned home from work.  The Defendant accused him of having an affair in the Mainland.  A dispute ensued.  The victim later went to sleep.

5.At 3:30 a.m. on 17 September 2008, the date of the offence, the victim was woken up by serious pain on his left leg.  The Defendant was chopping him with a chopper.  They struggled.  The chopper dropped.  The daughter was woken up by the noise.  Seeing what happened, she threw away the chopper.  The victim eventually subdued the Defendant. 

The victim’s injuries

6.The victim was taken to Tuen Mun Hospital and found to have the following injuries:

(1)   6 cm long laceration over left jaw;

(2)   5 cm long flap like laceration over left anterior chest wall;

(3)   10 cm long laceration over left posterior elbow with bone exposed;

(4)   5 cm long laceration over left forearm;

(5)   5 cm long laceration over left shin,

(6)   3 cm long laceration over left foot; and

(7)   Dislocation of his left elbow, cortical break over mandible of left jaw.

He was treated and discharged after 10 days, on 27 September 2008.

The Defendant’s reply under caution

7.The Defendant admitted that she chopped the victim because she suspected him of having an affair in the Mainland.  She fetched a chopper from the kitchen and chopped him when he was sleeping.  In the struggle he snatched the chopper and hurt her.  She snatched it back and chopped him a few more times.  

The principles of sentence

8.Section 45 of the Mental Health Ordinance (Cap. 136) provides that:

(1)  Where –

(a)a person is –

(i)   convicted by the Court of First Instance or a District Court of an offence other than an offence the sentence for which is fixed by law;

(ii) convicted by a magistrate of an offence punishable on summary conviction by imprisonment; or

(iii)charged before a magistrate with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission; and

(b)the court or magistrate is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46 that –

(i)   such person is a mentally disordered person; and

(ii) the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Correctional Services Department Psychiatric Centre of a mental hospital for treatment; and

(c) the court or magistrate is of the opinion, having regard to all the circumstances including the nature of the offence an the character and antecedents of such person, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

the court or magistrate may by a hospital order authorize the admission of the person to and his detention in the Correctional Services Department Psychiatric Centre or a mental hospital specified in the order or, if the person is under 14 years of age, in a mental hospital specified in the order, and may specify in the order the period during which such person should be so detained which shall not be greatly than the sentence which the court or magistrate could have imposed in respect of the offence with which such person was charged. 

(1A) Where under subsection (1) the court or magistrate by a hospital order authorizes the admission of a person to, and detention, in a mental hospital, and is of the opinion that in all the circumstances of the case the proviso to section 47(2) should not apply, the judge or magistrate may include a statement to that effect in the hospital order and, if he does so, that proviso shall not apply.

(2)  A hospital order shall not be made under this section unless the court or magistrate is satisfied that arrangements have been made for the admission of the person to the Correctional Services Department Psychiatric Centre or that mental hospital within 28 days after the date of the hospital order, in the event of the hospital order being made by the court or magistrate.

(3)  Where a hospital order has been made, the court or magistrate shall not impose a sentence or imprisonment or a fine or make a probation order in respect of the offence but may make any other order which the court or magistrate has power to make apart from this section and for the purpose of this subsection “sentence of imprisonment” includes any sentence or order for detention in a remand home, a reformatory school, a house of detention or a training centre.  (my emphasis)

9.I shall deal with the issue of the proviso to section 47(2) in due course.

10.In R v Chan Kin Cr App 421/1989, the Court of Appeal regarded that:

It was proper for a court to issue a mental health order without any specified period therein unless the medical opinion of psychiatric specialists who had examined the patient was to the effect that the patient could confidently be expected to be fit for release within a specified period (Tsui Chung Leung v The Queen, unrep., Crim App No 414 of 1979 followed; R v Morris [1961] 2 QB 243 considered).  The doctors here expressed no such confidence.  The order that was made was proper and it would have been wrong to impose imprisonment. Violence was used and the protection of the public was of paramount importance.

11.Section 47(2) reads:

A person who has been admitted to a mental hospital in pursuance of a hospital order shall be treated, for the purpose of Part III [namely where an order for detention of a patient has been made without a court hearing], as if he had been detained in a mental hospital in accordance with section 36 [namely where a District Judge has on the opinion of 2 registered medical practitioners countersigned a certificate in the prescribed form for detention of the patient for observation, investigation and treatment in a mental hospital]:

Provided that, unless the hospital order has been endorsed under section 45(1A), the power to grant permission for leave of absence under section 39 [namely for absence on trial], to discharge under section 42A [namely for unconditional discharge of the patient] or to discharge conditionally under section 42B shall be exercisable only with the prior consent of the Chief Executive. 

The Defendant’s circumstance

12.There were 2 sets of psychiatric reports obtained of the Defendant, from Dr. Robyn Ho and Dr. K.L. Lau, registered medical practitioners.  The contents were consistent. 

13.Born in 1969, the Defendant was at the date of the offence, as well as presently, 39 years old.  She has a clear record.  She was married and lived with her husband and 13-year-old daughter.  Her husband was a painting worker.  She was a housewife.  Her past psychiatric notes revealed that her mother and an elder brother had suffered mental illness of unknown nature.  Her mother committed suicide 2 years ago. 

14.The Defendant began to suffer mental illness since 1999 when she presented herself irregularly at Yau Ma Tei Psychiatric Centre.  Her condition had not improved over the years.  She felt persistently persecuted by gangsters recruited by the bank or neighbours.  Her diagnosis was Delusional Disorder.  Her attendance for follow-up treatment was infrequent and poor.  Soon she suspected that her husband was trying to kill her when they were taking walks or taking photos at the waterfront.  At times, she suspected that he swapped her medicine.  The last straw fell when she found that his clothes were so clean even after work that he must be keeping a mistress.  He denied but she would not believe it.  So she woke up in the middle of the night and chopped him.    

15.In a letter to the court, the victim has expressly forgiven the Defendant. 

The 2 doctors’ recommendations

16.Both Dr. Ho and Dr. Lau are of the opinion that that she is a mentally disordered person.  Her condition is poor, attendance to treatment poor and prognosis unpromising.  Although she understood what she did at the time of the offence, she had no remorse towards her violence.  She has a very high propensity to further violence, especially towards her husband.  It is difficult to determine how long it will take for her symptoms to subside.  An indeterminate term is recommended.  As the Defendant needs inpatient treatment in a highly secure setting, only Siu Lam Psychiatric Centre, not the Castle Peak Mental Hospital, can fit this criterion.  A place had been made for her there. 

Mitigation on the ground of single incident

17.In mitigation Mr. Li submits that for a single incident the Defendant should not be given an indeterminate term.  He has no authorities in support.  I think it has never been the sole criterion, either.  In R v Tsui Chung-leung [1977-1979] HKC 419, 420, as approved in HKSAR v Wan Pak-sing [2004] HKC 283, Roberts CJ said:

If the doctors cannot express this degree of confidence [that the patient can be expected to be fit for release within a specified period], it is wiser, both in the interests of the patient and for the protection of the public, that the patient should have no term attached to it.  It will then be for the doctors in charge of the patient to recommend his release to the Governor at the appropriate time.   

The sentence I pass

18.The present offence carries a maximum of imprisonment for life.  The present offence and its circumstances are both serious.  Upon a consideration of all sentencing options open to me, and bearing in mind the purpose of the legislation, as interpreted by the court, being “for the protection of the public and in the interest of the applicant”, I make a hospital order for an indeterminate term in her case and she shall be detained in Siu Lam Psychiatric Centre.

19.There is the remaining issue of whether the court should disapply the provisounder section 47(2) (“the Proviso”) if the hospital order is made for detention in a “mental hospital”.  However, sections 2 and 3 of the Mental Health Ordinance together have defined “mental hospital” to include only those gazetted.  Despite efforts exerted by the prosecution and the defence, the position is unclear.  I am aware of cases where the court has to consider this matter even when the Defendant was to be detained in Siu Lam Psychiatric Centre under a hospital order. 

20.I proceed on the assumption that Siu Lam Psychiatric Centre is a “mental hospital” and so it calls upon me to determine whether to apply or disapply the Proviso.  Bokhary JA in HKSAR v Ha Kei-fuk Cr App 688/1995 regarded that the Proviso ought not to be disapplied if:

[I]t might harm the doctor-patient relationship by building up in the patient a false hope of release which the doctor then has to dash.  (at para. 21)

21.Given the seriousness of the offence, the condition and prognosis of the Defendant before me, allowing her to make the application to the doctors shall no doubt be a disservice to the treatment.    The relationship between the doctor and the patient shall be best kept at a purely medical level.  The decision for her leave of absence, conditional or full discharge must be best left to the Chief Executive as advised by the Mental Health Review Tribunal.  So, for the purpose of section 45(1A), I decide not to endorse the Proviso.  In short, the Defendant can only apply to the Chief Executive acting through the Mental Health Review Tribunal.