CRIMINAL CASE NO. 60 OF 2010
COURT: On 8 August last year, at about 8.45 am, the police received an emergency call from a person who claimed that he had killed his wife. He indicated that he had killed her by chopping her, wanted the police to arrest him, and wanted to go to prison as a result of his conduct.
The accused was the person who made that call, and he provided the police with his telephone number and his address. The police had gone to the address provided, where they found the accused and subsequently the deceased inside the premises.
The accused had a lot of blood on his body. The deceased was found lying on the floor at the door to the bedroom, and a chopper was near to her.
Subsequently, the pathologist found in excess of 30 wounds to the head, five to the neck, and a number of other wounds on the upper limbs. A number of the wounds on the upper limbs were said to be defensive in nature. A number of the wounds were deep enough to cause cuts into the bone beneath the flesh, and it was found that the deceased had died from multiple chop and cut wounds and loss of blood.
The accused told the police when they arrived at his flat that he had attacked the deceased, who was his wife, with a chopper, which he had purchased some two months before in order to chop her. From the time he had purchased the chopper, he had concealed it.
He said that he had married the deceased in 1964 and had had an unhappy relationship with her throughout. It seems that whatever the catalyst may have been, it was that day that he decided that he would chop her.
He was subsequently interviewed by the police and gave quite substantial detail as to the nature of their relationship. Consistent with the fact that it was he who had telephoned the police and reported the incident: he did not at any stage seek to conceal what he had done.
He was, unsurprisingly, charged with murder. However, there appeared to be a question as to whether at the time of the offence he was suffering from a mental condition such as to diminish his criminal liability for his act. In the course of committal proceedings, a number of psychiatric reports were obtained by the prosecution and a report was obtained on behalf of the accused from another psychiatrist.
Consequent upon that report, the opinions of the psychiatrist consulted by the prosecution were again sought. The consequence of this was that the prosecution decided, entirely correctly and responsibly, that it would be appropriate for them, in the specific circumstances of this offence, to accept an offered plea of manslaughter on the basis of diminished responsibility.
Consequently, on 31 August this year, the accused was convicted of the offence of manslaughter by virtue of diminished responsibility.
Since then, I have had the benefit of further psychiatric reports prepared by the psychiatrist originally consulted by the prosecution. The reports started off with a divergence of opinion as to the precise nature of the accused’s condition. However, after asking for clarification on certain matters, it now appears that the two consulting psychiatrists upon whose reports I will effectively need to base my decision as to sentence are agreed in regard to his condition.
Dr C H Yuen and Dr K W Chow now both express the opinion that the diagnosis of the accused is that he has an organic brain disorder with frontal lobe features. Dr Yuen has had the experience of interviewing the accused on at least three occasions. His view is that his initial diagnosis to which I have just referred is sustainable, and Dr Chow now agrees with that view. He has indicated in addition that the accused is most likely suffering from dementia.
Both Dr Yuen and Dr Chow recommend that the appropriate sentence is one committing the accused under section 45 of the Mental Health Ordinance to a period of detention in a Correctional Services Department psychiatric centre or a mental hospital.
For reasons which have been fully motivated to me, Mr Mitchell, who appears, and has appeared throughout, on behalf of the accused, expressed some reservations about the concept of committing a person suffering from an apparently irreversible dementia to an institution under the Mental Health Ordinance. There is plainly no doubt that the attack on the deceased by the accused was extremely violent, but given the view of the psychiatrists in regard to the issue of dementia, it is hard to see, suggests Mr Mitchell, how he would benefit from any psychiatric treatment which may be forthcoming under such an order.
I understand the force of the argument, but it does seem to me that the only realistic manner for me to deal with the accused is by way of making a hospital order. I cannot see that it would be a feasible course for me to disregard whatever the nature of the accused’s present medical and/or psychiatric differences may be and simply order him to serve a period of imprisonment.
The second issue that arises is whether an order should be made for an indeterminate period or whether it should be for a finite period.
I have no difficulty with the proposition that the appropriate course to follow here would be to make an order committing the accused for an indeterminate period. It seems to me that the medical reports suggest that the accused may continue to deteriorate, which itself suggests that the period of supervision should be extensive and as long as is necessary for his supervision. The Government psychiatrists are - and indeed, the accused’s own psychiatrist is - unable to determine with any degree of reliability when or how the accused’s condition may vary.
The third aspect of the order, which is one that has caused Mr Mitchell the most anxiety, an anxiety which I share, is whether it would be proper in the circumstances to order that the accused be committed to Siu Lam Psychiatric Centre or to Castle Peak Hospital. This was an issue upon which I sought a specific comment from both of the psychiatrists who I asked to report for the purposes of section 45 of the Mental Health Ordinance.
The recommendation by each of them is in strikingly similar terms. Each of them refers to the seriousness of the offence which the accused committed. Dr Yuen indicates that he recommends Siu Lam Psychiatric Centre:
“...because it could provide a more secure setting for patients who have committed serious offences like homicide.”
He continues:
“Almost all the mentally disordered homicide offenders would be sentenced to Siu Lam if they are given the hospital order.”
Dr Chow also refers to the fact that Siu Lam would provide a more secure setting, given the seriousness of the offence. That may well be so, but it is incumbent upon me to have regard to the facts that relate to the offence, and those in the present instance are not commonplace.
The accused is 78 years old. He had been married to the deceased for 45 years. He had worked consistently throughout his life, and he had no record of any criminal offences whatsoever and he was not a person who was known to the hospital authorities as having any psychiatric problems, although he had sought help in more recent times regarding sleeping issues.
It is plain that on the day of the offence, something happened that finally caused him to snap and act in the manner he did. Just looking at that situation in itself, there is considerable force in the submission made to me that he would be better at Castle Peak Mental Hospital because of the nature of the care which the reports suggest he is likely to require in the future.
The tenor of those reports, as I understand them, is that he will need medical care and attention and he will need psychiatric supervision, but not necessarily psychiatric intervention, as his condition deteriorates as is anticipated.
One may think that, given his advanced years and the nature of the offence, the prospects of his reoffending or being a risk to society are low. Dr Yuen comments that despite his increasing age, the risk that he would act violently again should not be underestimated, because he has impairment in judgment, and paranoid symptoms often develop in patients with organic brain disorders. Dr Chow refers to the unpredictability of his violent risk under the influence of his current mental condition.
It seems to me that in the circumstances, the appropriate course for me to follow would be to accept the advice of the two psychiatrists and make an order committing the accused to Siu Lam. I feel it appropriate to say that I understand the force of the submissions that were made to me to the contrary. I take comfort from the fact that the accused will not simply be committed to Siu Lam and thereafter neglected, but that his case will be reviewed on a regular basis. It would then be open to those treating the accused to make a recommendation to the Mental Health Review Tribunal to consider transferring the accused to Castle Peak Hospital should that course appear to be appropriate in the future.
Consequently, I am satisfied that, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the accused and other available methods of dealing with him, that the most suitable sentence is by making an order under section 45 of the Mental Health Ordinance, Cap. 136, authorising the admission of the accused to and his detention in the Correctional Services Department Psychiatric Centre.
I am not prepared to specify any period for such admission.
I would like to express my appreciation to those representing the prosecution, as well as those representing the accused, for all the effort that they have put into this matter in ensuring that a sensible, merciful and practical resolution has been arrived at. Thank you both, gentlemen.
Defendant's appeal against sentence to Court of Appeal dismissed. Please refer to CACC358/2010 dated 20 June 2011