CRIMINAL CASE NO. 285 OF 2009
COURT: The defendant, Tubolto Romar Jay B, a Filipino, was charged with two counts of wounding. The 1st count was wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212. The 2nd count was wounding, contrary to section 19 of the same Ordinance. He pleaded guilty to both charges before me.
The Admitted Facts disclose that the defendant started to work at the ZZIP Restaurant situated at Wellington Street some time in April 2009. The two victims in the case, Mr Man and Mr Shih, were the defendant’s boss and colleague respectively.
On 6 May 2009, Mr Man gave a paycheque to the defendant without writing the defendant’s name. The defendant became agitated and was not happy with the explanation given by Mr Man, that is, that the defendant could put his own name on the cheque himself to get the money.
Two days later, the defendant was washing dishes at the sink when Mr Man entered the kitchen to get some hot water. After asking the defendant to excuse him, to which the defendant did not respond, Mr Man extended his hand to get the hot water. Suddenly, and without warning, the defendant used a table knife to stab at Mr Man’s throat. Mr Man felt great pain and stepped back in fright. The defendant then threw away the table knife and took up a cleaver and stabbed at Mr Man’s throat again. Mr Man fell to the floor, bleeding. Another colleague, surnamed Lee, went behind Mr Man to render assistance.
At this juncture, Mr Shih, who worked as a chef, entered the kitchen and he tried to stop the defendant from further attacking Mr Man. The defendant looked fierce and murmured repeatedly. When Mr Shih tried to grab the defendant’s left wrist, the defendant suddenly turned round and cut Mr Shih’s throat with the cleaver. Mr Shih covered the profusely bleeding wound and left the restaurant to seek medical treatment, in the company of another colleague.
After cutting Mr Shih with the cleaver, the defendant tapped the blade of the cleaver on his left palm and repeatedly said, “What’s happened?”. Mr Lee, who was still with Mr Man, made the report to the police.
The defendant returned to the kitchen and pointed the cleaver at Mr Man. The defendant was very agitated and Mr Man used a pan to defend himself, asking the defendant not to hurt him again. The defendant did not respond and went to the sink to wash his hands and the cleaver. He left the cleaver in the sink and then he left the restaurant. In the meantime, Mr Man and Mr Lee hid themselves in the toilet until the arrival of the police. Mr Man was sent to the hospital for medical treatment.
The defendant was arrested at his home later that day. He remained silent under caution.
Mr Man was found to have cuts on the side of his neck, right upper back, left upper chest and hand. Suturing was performed and he was discharged the same day.
Mr Shih had two lacerations over the throat. There was no dysphagia - that is difficulty in swallowing - or hoarseness and that the laceration, although cut through the platysma - that is the superficial muscle in the neck - did not cut into the deep structures. He was discharged the same day.
The defendant is now 24 years of age. He was born in the Philippines in January 1986. His parents divorced in 1998 and he came to Hong Kong to join his mother when he was attending secondary school. Although he was enrolled to study in a school in Hong Kong, he did not finish his Form 2 studies and started to work as a part-time worker at bars and restaurants. He is divorced with two children.
The defendant is not a first offender, having appeared in court on four previous occasions and having 10 previous convictions. It should be noted that all but one of the previous convictions relate to acts of violence: common assault, assault occasioning actual bodily harm, wounding - that is again section 19 - and assaulting police officers. The only non-violence-related conviction was for theft.
In the preparation of the trial, I was already provided with various psychiatric reports on the defendant. Suffice it to say that both Dr Choi, visiting psychiatrist of the Siu Lam Psychiatric Centre, and Dr Sylvia Chen, a psychiatrist in private practice, were of the view that the defendant was suffering from schizophrenia at the time of the offence and is still suffering from this mental illness.
Both were of the view that the defendant needs psychiatric treatment as an inpatient. There was no consensus, however, as to the period required for treatment. Dr Choi was of the view that should the court consider making a hospital order, it should be for an unspecified period, whereas Dr Chen’s recommendation was for “at least one year.”
I have since obtained a further report from Dr Choi and another report from Dr S H Lui. Dr Choi was of the view that the defendant’s mental condition had not changed much and he still maintained his earlier recommendation. Dr Lui was of the view that the defendant was suffering from paranoid psychosis, marked by auditory hallucination and delusions of alien control and persecution. He also recommended a hospital order for an unspecified period so that the defendant’s discharge will depend on his progress and be subject to review by the Mental Health Review Tribunal. They both said there is a place for the defendant at the Siu Lam Psychiatric Centre.
Mr Laskey, counsel for the defendant, informed me that both reports have been explained to the defendant and that whilst Dr Sylvia Chen was of the view that a period of two to three years would be appropriate, the defence cannot really argue against a hospital order without specifying any period.
Clearly, in the circumstances of this case and the psychiatric diagnosis on the defendant by both doctors, a hospital order is the proper consideration. In the case of HKSAR v Chiu Yu To [2001] 3 HKC at 186, Stuart-Moore VP, giving the judgment of the court, said, at page 192:
“Essentially, mentally disordered defendants, 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.”
Even when the offences are serious, the court’s approach is that it is quite prepared to abandon concepts of retribution and deterrence when dealing with the mentally disturbed offender (see Sentencing the Mentally Disturbed Offender (1965) Crim LR at 685 as quoted by the Court of Appeal in the case of Chiu Yu To).
The mental condition of the defendant is such that neither Dr Choi nor Dr Lui can say within what specific period the defendant would fully recover. In the case of The Queen v Tsui Chung Leung CACC414/1979, unreported, Sir Denys Roberts CJ said:
“In our view, it is proper for a court to issue a mental health order without any period being specified therein unless the medical opinion of psychiatric specialists who have examined the patient is to the effect that the patient can confidently be expected to be fit for release within a specified period. If the doctors cannot express this degree of confidence, it is wiser, both in the interests of the patient and for the protection of the public, that the order 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.
In addition, it is open to the patient to apply at any time for his release in accordance with the provisions of section 49 and 50 of the Mental Health Ordinance, Chapter 136.”
Of course we would now have to replace “the Governor” with the “Chief Executive”.
Having considered all the circumstances of the offences, the character and antecedents of the defendant, his mental condition and the risk of violence he poses to the public, it is in his interests that the most suitable method of disposing of this case is by means of a hospital order under section 45 of the Mental Health Ordinance, Chapter 136, as recommended by both doctors.
For both offences, I authorise the defendant to be admitted and detained in a Correctional Services Psychiatric Centre, that is the Siu Lam Psychiatric Centre, without specifying a period.