HKSAR v. Chiu Wai Kan Vicken

CACC 438/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2009

(ON APPEAL FROM HCCC NO. 172 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Lunn J in Court

Dates of Hearing: 26 May, 22 June and 30 August 2011

Date of Judgment: 30 August 2011

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.On 30 July 2008, the appellant killed his stepfather inside his stepfather’s flat in Kowloon City.  After trial before Beeson J and a jury, he was convicted on 8 December 2009 of the offence of murder and sentenced to life imprisonment.

2.The case came before us on an application for leave to appeal the conviction and on 22 February 2011 we granted leave, treated the hearing of the application as the appeal, set aside the conviction for murder and substituted a verdict of guilty of manslaughter on the basis of diminished responsibility.

3.It now falls for us to sentence the appellant for that offence.

The facts

4.The facts are rehearsed in our judgment of 22 February 2011.  The appellant was aged 23 years at the time of the killing and his stepfather 75 years.  The cause of death was manual strangulation and massive blood loss from numerous wounds.  The applicant had been living with his stepfather for some years.  It would appear that there were occasional quarrels between them but, according to the appellant’s testimony, the relationship with his stepfather was, on the whole, good.

5.In May 2008, the appellant married and moved out of the stepfather’s flat but the marriage floundered.  In the two or three days prior to the killing the appellant engaged upon a serious quarrel with his wife who drove him out of the matrimonial home and he returned to the victim’s flat in Kowloon City.  In the small hours of 28 July 2008, he went back to the matrimonial home with some friends to ask his wife to forgive him, but the attempt was unsuccessful and he went with his friends for a drink and a massage and thereafter returned to the victim’s flat.

6.The cause of the appellant’s problems with his wife was his own drug habit.  He had started taking ketamine at the age of 16 years and consumed the drug several times a week by the time he was 18 or 19 years.  He managed to cease consumption for some months about 2 years before the offence in question but, because of an emotional upset over a girlfriend, he relapsed and began consuming drugs again.  His consumption then became a daily habit.  In May 2007, he was convicted of possession of dangerous drugs and fined.

7.His evidence at trial was that because of the fallout with his wife he was very unhappy and, in the result, consumed more drugs and, a few hours before the killing, he left the victim’s flat and went to obtain ketamine which he consumed on his return.  He was unable, he said, to resist taking the drug.

8.As we pointed out in our judgment, it is not clear quite what then occurred because the appellant offered differing accounts of the events leading to the killing.  In statements made to the police, he talked of a quarrel with his stepfather over television noise or over the appellant’s consumption of ketamine; a quarrel which led to a fight in the course of which he killed the victim.  In the last interview in time, he spoke about events in the third person talking of that person, namely, himself, being in a crazy state, very confused and that he had stabbed his father with a screwdriver.  He talked of hallucinating in the small hours after he had consumed the ketamine.

9.In his testimony before the jury, he said that about six months to one year before the killing, a voice started to speak to him and told him that his father would hurt him; but the voice would come to him even when he did not take drugs and he became aware, through the voice, that his father was performing black magic.  He had told other people about the voice.  On the night of the killing there was, in truth, he said, no dispute with his father but he had taken ketamine because he was so unhappy and had been unable to resist taking it.  He took a saw from a drawer and tried to hurt himself with it but he did not do that because the voice told him to kill his father instead.  He took a pair of scissors and stabbed his father who was in the bedroom.  His father got up and followed him and the voice told the appellant that if he did not kill his father, he would himself die.  His father, according to this evidence, snatched the scissors so the appellant took a screwdriver from the drawer and effected a frenzied attack on his stepfather. A voice told him to get away and he went to the airport.

10.This account of an unprovoked attack was supported by the objective evidence, for there was no sign of a struggle.

11.After the killing, the appellant went to the airport and telephoned some friends saying that he had killed his father. 

12.The friends testified as to the appellant’s drug-taking habits, though they had tried to persuade him to stop.  One of the witnesses said that sometimes the appellant’s condition was such that he would talk to a lamp-post.  The appellant had told one of the witnesses that somebody was going to harm him and that his father had cursed him with black magic; yet that witness said that in the two days before the killing, the appellant appeared to be acting normally.

13.In the small hours of 30 July 2008, the two friends received a call from the appellant who sounded incoherent and said that he was at the airport and had killed his father.  They telephoned the manageress of a bar which the appellant used to frequent and she telephoned the appellant and advised him to go to the police. He did so that morning.

14.The cause of death was manual strangulation and massive blood loss from numerous wounds caused by a screwdriver used with considerable force and the indicia of strangulation suggested the application of considerable pressure.

15.The abnormality of mind operating on the appellant at the time of the killing was either a psychosis induced by long-term ketamine consumption, or ketamine dependence of such a degree that the psychological urge to consume the drug was irresistible; it is not possible to say which of the two but for present purposes it is not necessary to determine that issue.

16.It is correctly said that sentencing is an art; that is particularly so in manslaughter cases because manslaughter is committed in an extraordinary variety of circumstances, for which very reason there are no guideline tariffs, and sentences in other manslaughter cases are seldom of much utility.  So too, cases of manslaughter by reason of diminished responsibility vary significantly in their circumstances and tend to import difficult questions of public protection.

17.Two particular matters concerned us: first, whether the appellant poses a long-term danger to society and, secondly, the appropriate approach for a court tasked with sentencing in a diminished responsibility manslaughter case where the damage to the mind has been brought about by the conduct of the accused himself.  On the first occasion upon which this case came before us for sentence, we were referred to one of two Hong Kong decisions, but none contained any analysis of the second issue.

18.We have had the benefit of a psychiatric report and the oral testimony of a psychiatrist, Dr Amy Liu, for whose careful analysis we are grateful.

19.The effect of her testimony was that there is no evidence of any psychotic experiences since the appellant’s conviction in 2009 and no active psychotic symptoms elicited during her interviews with him.  He is now divorced and hopes to see his son by his marriage after his release.  His mental condition has remained stable for some time.  He suffers no current psychiatric illness.

Future risk

20.What is difficult to predict, understandably in the circumstances, is future risk.  Since he has been in prison he has, perforce, abstained from substance abuse but the difficulty is in predicting the risk of him resuming that abuse once he is no longer in a protected environment.  His history is not encouraging: he commenced drug abuse at the age of 16 years and, subject to one break of some months, continued that abuse for about seven years, with a crescendo of abuse resulting in heavy use of the drug.  He resumed ketamine after an upset with the girlfriend, killed the victim in this case after an upset with his wife and had been wont to associate with undesirable personalities.

21.Dr Liu’s conclusion was that if the appellant were to resume ketamine consumption in the future, the risk of a drug induced psychotic condition was high.  No psychiatric treatment is warranted at this stage but it is important, she says, for there to be close monitoring and supervision of him once he is out of prison.

22.In R v Stephen Francis Chambers [1983] Cr App R (S) 190 at 193 Leonard J said:

“In diminished responsibility cases there are various courses open to a judge. His choice of the right course will depend on the state of the evidence and material before him. If the psychiatric reports recommend and justify it, and there are no contrary indications, he will make a hospital order. Where a hospital order is not recommended or is not appropriate, and the defendant constitutes a danger to the public for an unpredictable period of time, the right sentence will, in all probabilities, be one of life imprisonment.

In cases where the evidence indicates that the accused’s responsibility for his acts was so grossly impaired that his degree of responsibility for them was minimal, then a lenient course will be open to the judge. Provided there is no danger of repetition of violence, it will usually be possible to make such an order as will give the accused his freedom, possibly with some supervision.

There will however be cases in which there is no proper basis for a hospital order; but in which the accused’s degree of responsibility is not minimal. In such cases the judge should pass a determinate sentence of imprisonment, the length of which will depend on two factors: his assessment of the degree of the accused’s responsibility and his view as to the period of time, if any, for which the accused will continue to be a danger to the public.”

23.Two notes of caution must immediately be sounded:

(1) protection of the public cannot justify a sentence which constitutes mere preventive detention; in other words, the sentence must be appropriate to the offence although the protection of society is a valid, indeed imperative, factor to be taken into account in determining where within the permissible range of sentence for the offence at hand and its circumstances, the term imposed should fall; and

(2) it should not be assumed that a verdict of manslaughter by diminished responsibility necessarily dictates a sentence less than life imprisonment; there will be cases which warrant such a term.

24.As for the first cautionary note, which warns against mere preventive detention, the judgment of the High Court Australia in R v Veen (No. 2)[1988] 164 CLR 465 at 472 is in point:

“The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No. 1] [(1979) 143 CLR at 476] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender ....

It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”

25.That said, the Court went on to acknowledge, at 474, that:

“ ... the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.”

26.As for the second cautionary note, it is to be remembered that the consequence of every act which has resulted in a conviction for manslaughter is the taking of a life and that the maximum permissible sentence for manslaughter is life imprisonment.  It is not to be assumed that a finding of diminished responsibility is of itself necessarily inconsistent with a penalty of life imprisonment, even though life imprisonment is the same sentence as for murder: see Veen [No. 1] at 489 and Veen [No. 2] at 476.  In R v Blacklidge (unreported NSWCCA 12 December 1995) Gleeson CJ said at p. 4 that:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for consideration of the appropriate penalty and a key element in the assessment of the gravity of the objective circumstances of the case.”

The countervailing factors

27.What are the factors present in the instant case which are to be taken into account in determining the appropriate sentence?

28.On the one hand, is the fact of a vicious, a brutal, attack on a defenceless man, resulting in the death of that man.  There was no provocative conduct by him.  Further, there can be no question in this case but that the attack was carried out with an intention to kill as opposed to an intention to cause serious bodily harm.

29.On the other hand, extremely serious though those factors are, is the degree to which the appellant’s responsibility for his act must be treated as diminished by reason of his drug-induced psychosis or irresistible impulse to take drugs.  There is cogent evidence that the appellant was delusional at the time and, subject to the peculiar factor to which we will next turn, it is right to treat the diminishment of his responsibility as significant.

30.But that does not conclude the analysis of countervailing factors, or more relevantly, of the degree of responsibility for the killing: it is necessary to take into account the appellant’s own responsibility for long term drug abuse and his failure in the years immediately preceding the events in question, despite the encouragement of friends, to seek assistance for his problem.  The degree to which this is relevant will itself vary from case to case.  In some cases, the circumstances which have led a person to drink or drugs may result in less weight being accorded the self-induced factor than in others.  But it is a factor that is material and is to be taken into account.  See, for example, R v Chan Hung Hing CACC 552 of 1995, 12 December 1995 unreported, at p. 4.

31.It seems to us that the situation of an accused who suffers from serious psychiatric illness which has come upon him through no conscious conduct of his own and which affects his responsibility for his acts, is deserving of a considerably more sympathetic approach than a person whose free choice has led to an altered mental condition; in the former case, there is little relevance in deterrence.  But where an accused has become addicted to alcohol or drugs he must, generally, be treated as carrying responsibility for that state of affairs, especially where he has sought no assistance to take himself out of the cycle.  And it follows that whilst his culpability for the act of killing is diminished by reason of his mental condition, the degree of diminishment is itself affected by the circumstances which created that condition.

32.The point we seek to make is reflected in judgments in other jurisdictions, for example:

(1) In R v Bosch (2010) BCSC 984 at para [20] Dillon J said that:

“…. in sentencing for manslaughter where voluntary consumption of cocaine is involved, the principles of denunciation and deterrence remain at the forefront. Low JA stated for the British Columbia Court of Appeal in Green[2001 [BCCA 672] at para 19:

“[19] In the present case, general deterrence and denunciation are the most important factors in determining the proper sentence. I do not accept the argument that deterrence is not a significant factor because people on cocaine binges are unaware of conduct and cannot be deterred. In my opinion, deterrence is not aimed at violence per se but is aimed at the highly irresponsible conduct that leads to the violence. Those who might emulate the lifestyle of the appellant that led to the killings must know that serious crimes done while under the influence of self-administered, mind-altering substances will attract substantial terms of imprisonment: the more horrific the circumstances of the crime, the higher the sentence.”

(2) R v Henry (1999) 46 NSWLR 346 at 385 wherein Spiegelman CJ said:

“[196] It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological and physiological base. It was put that an addict’s decision to perform a criminal act was not ‘a completely free choice’.

[197] In my opinion drug addicts who commit crime should not be added to the list of victims. The degree of moral culpability will vary, just as it varies with individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.

[198] First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.

….

[201] ... individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.”

33.We agree with the thrust of these decisions.  In the case of a killing by a person suffering from a drug induced psychosis or an irresistible impulse to take drugs as a result of his habits, such as results in a finding of manslaughter by reason of diminished responsibility attributable to that psychosis or impulse, the fact of the addiction is certainly not a mitigating factor; indeed, recognition of the choice factor and the requirements of deterrence demand that, generally – though each case must be viewed in the light of its own peculiar facts and the appellant’s own history – the degree of responsibility is to be viewed as greater than in cases of non-self-induced illness.  It will be greater still in cases where no help is sought in the face of a history of violent propensities when affected by the addictive substance.  Furthermore, the court must take care in such cases not to double count in a defendant’s favour: in other words, the court must recognize that his condition of drug-induced psychosis has already been reflected in the conviction for manslaughter rather than murder.

34.There is nothing in the history of this case which suggests that this appellant’s involvement with drugs commenced other than as a result of his free choice.  There are some cases where greater understanding might be accorded as a result of unusually traumatic events in the individual’s life, but that does not apply in this case.

35.We recognize that in this case there was an attempt by this applicant, a couple of years or so before the killing, to come off drugs and it was successful for some months but, as a result of an unhappy relationship, he succumbed again.  This may indicate a weak personality, rather than a total disdain for the consequences of drug taking; yet even if that assumption is made, the fact of choice as well as the need for a deterrent sentencing policy in this context require weight in the sentencing exercise.

36.But the exercise does not stop even there.  A sentencing court has to take into account all relevant circumstances.

37.In the applicant’s favour those factors are that there was no premeditation; the appellant swiftly after the event volunteered the fact of what he had done to his friends; on their advice, he surrendered to the police, although the account he gave them of violence by his stepfather appears to have been untrue; importantly, he pleaded guilty to manslaughter on arraignment, having intimated at a pre-trial review that he intended to do so, although it was a plea that was not accepted.  Furthermore, but for one offence of possession of dangerous drugs, in respect of which a fine was imposed, the appellant was a person of previous good character with no history of violent tendencies or episodes.  It has further to be noted that there is no evidence of a realization on the appellant’s behalf that his addiction might lead to violent behaviour – as we have intimated, the degree of responsibility for diminished awareness is greater where such a realisation is present.  Further, he is a person who appeared to have enjoyed a stable relationship with his stepfather and, according to the psychiatrist, is genuinely remorseful.

38.These factors, taken together, do not suggest to us a range of punishment into which falls an indeterminate sentence.

39.As for the danger posed by the appellant to society, this is difficult to predict.  It can safely be said that at present the appellant suffers from no abnormal condition.  The risk of danger to the public arises, therefore, not in some present brain damage or psychosis, as happens in other cases, but, rather, in the high risk that would arise were he to return upon his release from imprisonment to his former drug habits.  In such an unfortunate event, the risk of a drug-induced psychotic condition is said to be high.

40.Given these facts, Dr Liu emphasised the importance in this case of post-release supervision.  In that regard, we note the provisions of the Long-Term Prison Sentences Review Ordinance, Cap. 524, applicable to those serving indeterminate sentences of 10 years or more, for conditional release and for supervision of prisoners after release; and the provisions of the Post-Release Supervision of Prisoners Ordinance, Cap. 475 which provides a regime of supervision for those sent to imprisonment for specified offences, including manslaughter, or in any event to a term of imprisonment of six years or more.  Those minimum terms do not dictate the sentence we have decided to impose – the appropriate range of sentence in this case significantly exceeds six years and, in any event, this is a specified offence; but the fact of those regimes for supervision provide a measure of comfort in terms of public protection and one can but hope that steps will be taken, once this appellant is released, to ensure that he is provided with the support that will, so far as may be possible, militate against a return to his former and dangerous drug habits.

Conclusion

41.We judge that in all the circumstances which we have detailed, the appropriate sentence in this case is one of ten years’ imprisonment. That is the sentence which we impose.

Mr Martin HUI, SADPP (Ag.) & Mr Michael TSANG, PP, of Department of Justice, for the Respondent

Mr Lawrence LOK, SC, Mr Caesar LO and Mr Joe CHAN, instructed by Messrs Cheung, Chan & Chung, for the Applicant