CRIMINAL CASE NO. 58 OF 2009
COURT: This matter was initially listed for mention today. The matters for which it was so listed for mention have resolved all outstanding issues. It is therefore appropriate to proceed to deal with Madam Yu as a direct consequence of the earlier jury’s verdict of not guilty by reason of insanity. I do not think it is necessary in the circumstances to publish the fact that I have directed that the matter proceed to a final hearing notwithstanding that it was originally listed for mention only.
On the afternoon of 16 October 2008, a fire broke out at a squatter village at Ha Wo Che in the New Territories. A number of properties were damaged or destroyed. One of those was Hut No. 232 where Yu Sau, the defendant in the trial, HCCC58/2009, lived with her elderly husband. Madam Yu was charged with setting this fire.
The particulars of the indictment alleged that she deliberately set fire to the property, part of which was owned and occupied by her neighbours, the Kwong family, intending to destroy it and, at the same time, being reckless as to the risk that the fire would endanger the life or lives of others, an offence contrary to section 62(3) and 63(1) of the Crimes Ordinance.
There was an alternative charge contrary to section 61(3) and 63(2) of that Ordinance. By reason of the verdict returned, this is no longer relevant.
On 23 March 2010, after a trial which lasted for some three weeks, the jury returned a special verdict, by a majority of five to two, of not guilty by reason of insanity, pursuant to section 74 of the Criminal Procedure Ordinance.
I am required by section 76 of the Criminal Procedure Ordinance - the provision is mandatory - to make orders with respect to Madam Yu’s future. The relevant parts of section 76 are sections 76(1) and (2). Subsection (2) reads as follows - but the whole of the section will appear in the transcript of my reasons. Subsection (2)(a) reads as follows:
“The court shall, if it is satisfied on the written or oral evidence of two or more registered medical practitioners, of whom not less than two shall be psychiatrists on a specialist register established under section 6(3) of the Medical Registration Ordinance, that it is necessary in the interests of the welfare of the accused person or for the protection of other persons that the accused person be admitted to the Correctional Services Department Psychiatric Centre, or a mental hospital, make an order that the accused person be admitted.”
There are other relevant provisions. They provide the possibility of other orders. Taken together, they could be what is described as a Guardianship Order under Part IIIA of the Mental Health Ordinance, a Supervision and Treatment Order under Part III of the Mental Health Ordinance, or an absolute discharge. As can be seen from the above, there are four alternatives open to me.
Dealing firstly with the verdict. The jury’s verdict, properly understood, in the light of the directions I gave, is that Madam Yu deliberately and not accidentally set fire to the premises named in the indictment. She did this by pouring a quantity of kerosene into the staircase which led from the ground floor of these premises where she lived with her husband, to the 1st floor which was occupied by the Kwong family.
The verdict reflects the evidence of the forensic scientists that kerosene was used to start the fire. The verdict confirms that Madam Yu had gained access to the staircase which ran from the ground floor to the 1st floor of the premises by means of the removal of a wooden plank or panel which separated the sitting room of her premises from the staircase. It is to be remembered - and it is particularly relevant to this part of the proceedings - that this staircase was the only entrance to and exit from the upstairs part of Hut No. 232.
Madam Yu herself was injured in the fire. She was taken by ambulance to the Prince of Wales Hospital and eventually discharged on 20 October. Subsequently, she was interviewed by the police in a video-recorded interview. As a consequence of their investigation and the admissions contained in that interview, Madam Yu was charged with the offence of arson. She was remanded in custody at the Tai Lam Centre for Women.
In early November 2008, on the advice of the Medical Officer at the Tai Lam Centre, she was transferred to the Siu Lam Psychiatric Centre. She has remained at the Siu Lam Psychiatric Centre to this day.
In the course of the trial, leaving aside now the now irrelevant consideration that the fire may have been an accident, the critical issue for the jury to determine was whether Madam Yu was, or may have been, criminally insane at the time she set fire to these premises in the way that she did.
Four psychiatrists, all of whom were accepted to be experts in their field, gave evidence as to her then and present mental health. They were Drs Peter W T Yu and Chan Kwok-tung on behalf of Madam Yu, and Drs Amy C Y Liu and W K Choi on behalf of the prosecution. Drs Liu and Choi are visiting psychiatrists at the Siu Lam Psychiatric Centre. Drs Yu and Chan are psychiatrists in private practice and were engaged on Madam Yu’s behalf by the Director of Legal Aid.
All of the psychiatrists agreed that at the time of the fire and the trial and to date, Madam Yu suffers from a psychotic mental disorder. Specifically, she suffers from a delusional disorder with the main theme of persecution. Dr Choi described her as suffering from delusions which were persistent, persecutory in nature and were focused specifically upon the neighbours, the Kwong family, and her husband.
All of the psychiatrists accepted that she was, at the time when she deliberately set fire to these premises, acting under the influence of this illness. They were all unanimous in their conclusions that the setting of the fire was directly influenced by her mental disorder. Where the psychiatrists did not agree was as to the second limb of the accepted test for the determination of whether a person is legally insane.
In the course of my summing-up, I directed the jury as follows:
“A person is insane for the purposes of the criminal law if their powers of reason or understanding malfunction as a result of some inherent mental disorder so that, (1) they do not know what they are doing, or (2) if they do know what they are doing, they do not know it is wrong.”
Drs Choi and Liu were satisfied that, notwithstanding the nature and circumstances of Madam Yu’s illness, she did know that what she was doing was wrong. Drs Yu and Chan did not agree. They were both of the view that she did not, or may not, have known that what she was doing was wrong at the time. The jury’s verdict, properly understood, is that they accepted that she did not or may not have known that what she was doing was wrong.
Common to the conclusions of all of the psychiatrists is that, for the future, Madam Yu requires ongoing psychiatric care. Initially, they were all in agreement that this should be as an inpatient pursuant to a Hospital Order. The advice of the government psychiatrists were that all of the circumstances recommended that she be ordered to be detained pursuant to section 76(2)(a) at the Siu Lam Psychiatric Centre where there was a place for her. They added, as will be seen, unnecessarily, that this should be for an unspecified period.
Initially, Drs Yu and Chan agreed with this recommendation, saying that they indicated that such an order of detention pursuant to section 76(2)(a) should be for a specified period. Miss Sin, on behalf of the prosecution, correctly and properly pointed out to Mr Arthur, on behalf of Madam Yu, that this court is not empowered by section 76(2)(a) to limit the period of a defendant’s admission when exercising those powers. Unlike section 45 of the Mental Health Ordinance, there is no power in the court making an order under 76(2)(a) to specify the period of detention.
Having been alerted to this, the psychiatrists engaged by the Director of Legal Aid on behalf of Madam Yu, changed their minds and their recommendations as to her future management. By reason of this, it has become necessary to revisit the defendant’s diagnosis, her prognosis, the recommended treatment and the assessment of the ongoing risk she poses, if any, to others or herself.
Dealing with the options open to me, no one has suggested, nor could they properly do so, that Madam Yu should be absolutely discharged.
Dealing with the alternatives under Part III(A) and Part III(B) of the Mental Health Ordinance, both of these options are, in their nature, non-custodial. Part III(A) of the Ordinance enables a court to make an order for the guardianship of a person for a limited period. It is described as the validity period. The validity period may not exceed one year commencing on the date of the order. Such a course, for that reason alone, would be entirely inappropriate in the present circumstances. Mr Arthur, on behalf of Madam Yu, agreed and did not suggest that this was appropriate.
Section 76(2)(b)(ii) empowers me to make a Supervision and Treatment Order pursuant to Part III(B) of the Mental Health Ordinance. The relevant parts of section 44D will appear in the typescript of my reasons for sentence. So far as is relevant, however, the passages that I will refer to are as follows - 44D(1)(b):
“The court or magistrate concerned is satisfied, on the written or oral evidence of two or more registered medical practitioners of whom not less than two shall be psychiatrists” - and I quote the balance of that paragraph - “that the person is mentally incapacitated to a nature or degree which warrants his receiving supervision and treatment under this part.”
And (2): “The mental incapacity is susceptible to treatment; and (3) it is necessary in the interests of the welfare of the person or the protection of other persons that the person should be supervised and treated.” In the typescript of my reasons for sentence, the whole of that section will appear.
As can be seen from the above, a Supervision and Treatment Order, other than when section 44H of the Mental Health Ordinance applies, is a non-custodial order. A Supervision and Treatment Order is what the psychiatrists engaged on behalf of Madam Yu suggested, albeit that they suggested that she be required to undergo inpatient treatment for at least one year. I will return to the various options in due course.
Madam Yu is now aged 51. She was described by all of the psychiatrists, in one way or another, as an unsophisticated woman; she probably has below average intelligence. She had, until the events which gave rise to her trial, no previous contact with psychiatrists here or in the Mainland from where she came. She is illiterate.
The background obtained by all of the psychiatrists can be summarised as follows - and I will take this from the first and second reports prepared by Dr Liu who has been one of Madam Yu’s treating psychiatrists since her admission to Siu Lam Psychiatric Centre. In her report, she indicated this.
“Madam Yu Sau was born in China. She received no formal education and was married first at the age of 22. Her first husband died in or about 2001. She married her second husband with whom she lived at the squatter hut at Ha Wo Che Village, in 2002. Originally, she used to come to Hong Kong on a double-entry visa until she obtained a Hong Kong identity card and permission to reside here in January 2006.
Whilst her husband is an elderly man in his 80s, nevertheless, their cohabitation was, at least in the initial stages, harmonious, as was their relationship with the other villagers in the squatter huts. In particular, their relationship with the Kwong family, who lived on the 1st floor of Hut 232, was, to all intents and purposes, quite close. There were occasions in the years preceding the events in October 2008 where she had cared for their children. They had shared meals at each of their respective premises and had, in general terms, got on very well.”
Returning now, as I must, to the trial, Madam Kwong told the jury about the good relations she had shared with Madam Yu. This apparently changed quite suddenly in or about August of 2006. She was not aware of any circumstances which brought this about, however, she did describe how there had been a marked deterioration in Madam Yu’s attitude to her and her family. There had been a number of confrontations. The police had been called on occasions. By the time of the fire in October 2008, there appeared to be animosity on her part towards that family.
In February 2008, after Madam Yu’s arrest, Dr Liu was requested to prepare a psychiatric report for the Magistrates Court. In her report dated 19 February, she indicated, in the history that she had obtained from Madam Yu, that there were indications of her feeling that she was persecuted by the neighbouring families. Dr Liu reported that Madam Yu had told her that people had deliberately made noises to disturb and upset her. She referred to the fact that she suspected that her husband’s contact with this family was to her detriment. The perception of persecution extended not only to the neighbours but to her husband’s daughter from his previous marriage.
Madam Yu told Dr Liu that, a day before the fire, namely, 15 October, she had concluded that her husband had attempted to poison her and that she believed that the poison was purchased by her neighbours in the upper floor of Hut No. 232. It was apparent that this was the lead-up to her setting fire to the premises.
On 14 July 2007, in his report, Dr Chan Kwok-tung recorded that Yu Sau had told him that the reason that her husband had poisoned her was that he was planning to sell their premises and that it would be easier if he could do that if she was dead. He was doing this in conjunction with the Kwong family because if they sold the two properties together, they would obtain a better price.
She told him of the events of the morning of 16 October prior to setting fire to the premises. She had visited a general practitioner but, having become suspicious of him, refused his treatment and returned to her own premises.
The nature of Madam Yu’s illness was first adverted to by Dr Liu in her report of 19 February 2008. She said:
“Yu Sau is likely suffering from delusional disorder, a kind of psychotic disorder. However, further collateral information is necessary to clarify on the details of the illness. She has been started on anti-psychotic medication at Siu Lam Psychiatric Centre but limited improvement is seen.”
Dr Liu concluded by saying that
“She poses high risk towards others as suggested by her dangerous behaviour under the influence of the delusions”.
That provisional diagnosis proved to be correct. In a report dated 14 July 2008, Dr Liu provided a more detailed description given by Madam Yu of the events of the fire of 20 October.
In that interview, she gave a different account of the circumstances leading to the fire than she had earlier given to Dr Liu. In the account given earlier, on 19 February, Dr Liu recorded that Madam Yu told her that, “Because she was poisoned and was not going to live, she decided to burn herself to death, but denied any intention to kill others”.
Again on 14 July 2008, she said that the fire was an accident which occurred as a consequence of her worshipping the gods. Nothing now turns on this, other than that the different accounts, in part, were relevant to the assessments made by the different psychiatrists of the nature and extent of her illness.
Dr Chan, in his report, which was also dated 14 July, obtained a history which was consistent with that obtained by the other psychiatrist. He noted that despite the fact that Madam Yu had been receiving treatment, she was still delusional and had poor insight into her mental illness. He said, at paragraph 28 of his report:
“She still harboured delusions of persecution. Her delusional beliefs were connected to each other and centred at the persecutory theme with a gradual and consecutive development which involved more and more people: firstly, the bad neighbours; then her stepdaughter and her husband; finally, even the local doctor was colluded to do harm to her.”
In Dr Chan’s opinion, there had been a rapid development of psychotic symptoms a day before the fire and her delusional disorder had persisted for some time before that. Of the nature of her illness, he said, at paragraph 39:
“The delusional disorder is difficult to treat. The delusions may be lifelong despite good adherence to medication. However, treatment may aim at reducing the degree of conviction and the emotional reactivity towards the delusion. Madam Yu Sau had been under treatment for several months. Her delusions persisted. But by comparing the mental status shown in the video recording of 24 October 2008 and the description in her previous psychiatric reports to the clinical findings of 23 June 2008, I find some improvement in the conviction and mood state already.”
He did say this, at paragraph 42:
“The risk of re-offending is considered low if proper treatment and supervision of the adherence of treatment is provided”. It is this latter observation which is, to my mind, of critical importance in the decision that I have to make.
Dr Choi, the second psychiatrist called by the prosecution, provided a report dated 24 October 2010. He had examined Madam Yu on two occasions prior to this. At paragraph 16, he said this:
“Madam Yu suffers from delusional disorder marked by persistent persecutory delusions primarily against her neighbours and, secondarily, her husband, and the illness has been onset for more than one year prior to the occurrence of the present offence. After receiving psychiatric treatment in this centre for more than one year, the symptoms are still very active at the present moment and she still has poor insight towards her illness.”
He was concerned at the number of different accounts of the events of the day of the fire that had been given by Madam Yu. It was his opinion, however, that Madam Yu was floridly psychotic at the time she set fire to these premises. He said, in paragraph 19:
“I believe that she had really thought about killing her neighbours at the material time of the offence”.
He expressed reservations about her prognosis. He said, at paragraph 23:
“Given all the unfavourable clinical factors, no matter whether she will be convicted of the present offence or not, a very prolonged period of intensive psychiatric treatment provided in a highly supervised inpatient setting will definitely be indicated and there is no telling when she can be safely discharged back to the community.”
It was his conclusion that a Hospital Order for an unspecified period was appropriate in the circumstances and this, it will be remembered, was the opinion also of Dr Liu.
As I have earlier indicated in these reasons, subsequent to the jury’s verdict, Drs Yu and Chan made recommendations as to the appropriate orders that should be made with respect to Madam Yu. These reports were prepared before they were alerted to the fact that the court could not fix a minimum period of detention pursuant to section 76.
Dr Yu’s then opinion was that Madam Yu needed inpatient care and he then recommended that a hospital order be made. He doubted that Siu Lam Psychiatric Centre was the appropriate centre and suggested that the Castle Peak Hospital was more suitable to her condition. He thought at that time that an order for one year would be appropriate.
Dr Yu’s concerns about the suitability of the Siu Lam Psychiatric Centre were to the effect that it could not provide intensive psychosocial treatment and he was also concerned that prolonged incarceration at the Siu Lam Psychiatric Centre may lead to a worsening of her mental condition. Dr Chan, for his part, echoed those sentiments. His recommendation was as follows:
“Continuous drug treatment is needed. The treatment is likely to be lifelong even if the delusions are less apparent. Cognitive therapy can be considered which is aimed at education for the understanding of her mental illness, to help her to develop alternative explanations for her feelings and experiences.”
He thought that if she could be discharged from hospital, her mental state could be closely monitored by social workers and community psychiatric nurses in the fullness of time. He, like Dr Yu, considered that prolonged institutionalisation was not appropriate and, in her case, could render her further incapacitated. Like Dr Yu, he thought her risk of offending was low if she responded to proper treatment, an observation which is, to my mind, at the heart of the issues which are before me.
His initial conclusion was that a Hospital Order was appropriate and he recommended such an order not exceed two years. After the expiration of that period, he suggested she should then be transferred to a psychiatric ward or hospital for further psychiatric care which would also include psychosocial training.
Those were the observations and recommendations of Drs Yu and Chan subsequent to the return of the jury’s verdict. Once alerted to the limitation of my powers pursuant to the provisions of section 67, in each case, they filed a further supplementary report. Dr Chan said this:
“I would like to revise my previous recommendation stated in the report dated 25 March 2010. I would no longer recommend a hospital order of one to two years’ duration because I learned there is a limitation on the power of the court in this case.”
He then goes on to say that he would recommend a Supervision and Treatment Order for a period of two years under the supervision of the Director of Social Welfare and that the first year of that order, Madam Yu should receive inpatient treatment. In that regard, he believed that Castle Peak Hospital would provide a better environment for the treatment of Madam Yu.
In his report dated 30 April 2010, Dr Yu said this:
“I seek to revise my recommendations stated in my report dated 22 March 2010. I would no longer recommend a Hospital Order of a year’s duration in light of the knowledge of the limitation of the power of the court in the case.”
He also then went on to advocate that a Supervision and Treatment Order be made. He, like Dr Chan, adverted to the fact that Madam Yu was not at this stage receiving the optimal effective dose of antipsychotic medication. However, he accepted that those treating her were not in a position to compel her to take the appropriate level of medication unless and until she became subject to an order of this court.
He accepted that the levels of medication she was currently receiving had only resulted in slight improvement. Like Dr Chan, he did not consider her violent propensity to be high. He did not consider that a Hospital Order was in her best interests, again because of the risk of institutionalisation.
Dr Choi, in response, in his report dated 22 April 2010, accepted that, generally, a less restrictive hospital environment will be more beneficial for the rehabilitation of a patient once their illness has been stabilised. He said, in the present case, if there was satisfactory progress in Madam Yu’s case, then the Mental Health Review Tribunal had the power to recommend that she be transferred to another gazetted mental hospital for further psychiatric management and rehabilitation.
What emerged from the above reports is that Madam Yu has been and has all along refused to take the appropriate levels of antipsychotic medication and this obviously has a significant impact on both her short-term and long-term prognosis.
Integral to my determination of the interests of the welfare of Madam Yu is the fact that she has made limited progress in the time that she has been in the Siu Lam Psychiatric Centre and, specifically, she has made limited progress because the appropriate levels of medication have been refused by her.
A proper long-term prognosis of her condition can only properly be made when and if her medication is administered at the appropriate levels. If she does not voluntarily accept appropriate levels of medication - and she has to date refused to do this - it is obvious that she remains a risk of succumbing to the delusional disorder and re-offending in like manner to the offences with which she was charged.
On her behalf, Dr Chan accepted that, without medication, she remains an ongoing risk to herself and to others. Dr Chan has said that a delusional disorder is very difficult to treat. Drs Chan and Yu, in the course of their reports, have acknowledged this, as have Drs Choi and Liu. I am persuaded, however, by Drs Liu and Choi that at the present time and for the foreseeable future, Madam Yu does remain a risk to herself and others.
Given the divergence of opinions as to the appropriate treatment for Madam Yu - on the one hand, the suggestion that she be treated by way of a Treatment and Supervision Order and, on the other hand, that she be dealt with by way of a Hospital Order - it became necessary, and I was persuaded by both counsel, to hear again from the four psychiatrists. This I did on 14 June.
Each of the psychiatrists gave evidence and in the case of Drs Yu and Chan, explained why they had changed their recommendations from a Hospital Order to a Treatment and Supervision Order. Collectively, their primary concern was that Madam Yu, if she remained at the Siu Lam Psychiatric Centre indefinitely, may become institutionalised and any chances of rehabilitation would be thereby lost.
Both expressed the view that once her delusional disorder is stabilised with appropriate levels of medication, she should be in a less restrictive environment. They have suggested at all times that Castle Peak Hospital would be such an environment, where a battery of support from care specialists was available and they would be then able to, in the fullness of time, assist with her reintegration into society.
Dr Chan, for his part, in the course of giving evidence, accepted, as Dr Choi on behalf of the government had indicated in his earlier report, that for the initial stages of her treatment, Madam Yu needed to be in a highly supervised and secure environment. Dr Chan, for his part, suggested that this could be accommodated at the Castle Peak Hospital.
Drs Yu and Chan acknowledged that a proper evaluation of her progress would be entirely dependent again on the administration of appropriate medication. Dr Chan, for his part, accepted that, given the nature of her illness, it is not possible to predict with any accuracy, however, how she will respond to proper levels of medication. He, like Dr Choi, accepted that her risk of re-offending in a violent way remains extant whilst she does not receive proper treatment.
It was apparent from the reports and the evidence of all of the psychiatrists that if Madam Yu is subject to a Hospital Order, whether it be at Siu Lam Psychiatric Centre or the Castle Peak Hospital, she would of course be subject to reviews by the Mental Health Review Tribunal.
At the conclusion of the hearing on 14 June and the following day when submissions were made by counsel, Mr Arthur, on behalf of Madam Yu, in effect, accepted that a Hospital Order was the only appropriate option for dealing with Madam Yu’s long-term circumstances. That concession was formally made by him on 28 June, where he, on her behalf, and I think, in the circumstances, entirely properly, abandoned the proposition that she should be dealt with by way of a Treatment and Supervision Order.
Given the above and given that Dr Choi, for his part, had accepted, in cross-examination, that she could properly be dealt with at the Castle Peak Hospital as opposed to the Siu Lam Psychiatric Centre, I requested that the Castle Peak Hospital authorities indicate whether Madam Yu was a suitable candidate to be accommodated and treated there pursuant to a Hospital Order.
The reply that was received was as follows: “Castle Peak Hospital has not accepted Hospital Order patients pursuant to section 76(2)(a)(i) or (ii) since 1991”. On the face of it, it would appear, therefore, that the only option was that the Hospital Order should be made and that Siu Lam Psychiatric Centre be identified as the appropriate institution.
However, quite properly, those acting on behalf of Madam Yu challenged the decision made by the Castle Peak Hospital. Further representations were made on her behalf and, on 8 July 2010, the Chief Executive of the Castle Peak Hospital wrote to this court stating as follows:
“We have reviewed all of the medical reports of Madam Yu and confirm that she is suitable to be detained in the Castle Peak Hospital and arrangements can be made for her admission in the Castle Peak Hospital if the court makes a hospital order for Madam Yu Sau to be detained.”
That is, to my mind, the appropriate course. I am satisfied that the requirements of section 76(2)(a)(i) have been made out and that the appropriate order I should make is that Madam Yu Sau be admitted to the Castle Peak Hospital pursuant to that provision.