HKSAR v. Law Kam Wing

DCCC 459/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 459 OF 2012

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Reasons for Sentence

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1.The defendant has been convicted on his own plea on one count on the indictment, namely wounding with intent, contrary to Sections 17(a) of the Offences against the Person Ordinance, Cap 212.

2.The amended ‘summary of facts’ admitted by the  defendant disclose that he and the victim, Wong Lau, aged 85 years, were both residents of the Shun Fuk Home for the Aged, a home for the elderly in Tuen Mun.  On 18 April, 2012, the defendant alleged that Mr Lau had stolen his money, but Mr Lau denied having done so, and a dispute arose between them.  At around 6 a.m. on 28 April, 2012, Mr Lau was lying in his bed when he saw the defendant enter his room with a 6 inch long cutter in his right hand. Without saying a word, the defendant used the cutter to strike on Mr Wong’s limbs, thereby causing injuries to Mr Wong’s right arm, right forearm, right hand, right thigh and left forearm. Mr Wong shouted for help and asked the defendant what he was doing. While attacking Mr Wong, the defendant said Mr Lau had stolen his money. Mr Lau tried to ward off the defendant with his pillow but in vain.  The defendant struck Mr Lau with the cutter about 10 times.  A caretaker in the home heard Mr Lau’s screams and ran to Mr Lau’s room and pulled the defendant away and a report was made to the police. The police subsequently arrived and the defendant was arrested and cautioned and said under caution that Mr Lau had stolen his money and refused to repay the money upon request, so he had bought a cutter to attack him.  Mr Lau was found to have multiple chop wounds over his right arm, right forearm, right hand, right thigh and left forearm. Surgical operation was performed and he had over 70 stitches and was in hospital for 8 days.  He received follow-up treatment after discharge. It was found that all tendon movement of his upper limbs were intact but there was mild impairment to his grip power. Two medical reports and an album of photographs of the injuries sustained by Mr Lau were submitted by the prosecution and viewed by me.

3.According to his criminal record, the defendant was born in 1930, and should now be 82 years old. He has five previous convictions in 2 court appearances, the last being in 1982 for 4 counts of rape, for which he was sentenced to a total of 8 years’ imprisonment.  He received little education. He used to work as an usher in a cinema in Causeway Bay for over 20 years until his retirement some 14 years ago when he had a stroke and was forced to retire. Since then, he has been on public assistance.  Although he is not married, he has had a girlfriend for many years and they lived together until 2011, when because of his deteriorating health, his girlfriend arranged for him to be admitted to the elderly home where the present offence occurred.  Since the offence, the girlfriend’s whereabouts are unknown.  Since his convictions in 1982, the defendant has been out of trouble. He held down a job for many years after his release from prison, and was forced to retire when he was in his 70’s because of ill-health.  For the purpose of sentence, I attach no weight to his previous convictions.

4.Counsel submitted that the defendant had withdrawn his public assistance money of about HK$5,000 on 18 April, 2012 to pay his fees at the elderly home.  When he went to the counter to pay, no one was there. He went to shower. After his shower, he returned to his room, and found he had left his shirt with the money in the shower.  He went to get it back and found Mr Lau near his shirt and the money was gone. They had a dispute, and in the heat of the argument, Mr Lau had hit him several times. The defendant complained to the staff of the elderly home but to no avail. He was told not to make a fuss and was given time to pay the fees of the elderly home. The defendant became very upset, and it was in those circumstances that he committed the present offence on 28 April, 2012.  Counsel submitted that the defendant had been out of trouble since 1982 and this was an isolated incident. He was very remorseful and Mr Lau did not appear to have suffered any permanent disability.  Since his arrest, the defendant had been remanded in custody and had even attempted suicide, and had received psychological counselling.

5.Counsel sought leniency for the defendant, praying in aid the defendant’s early plea and old age, and the special circumstances of the case. He also sought to rely on HKSAR v Yeung Kam Kwai, CACC 458/2007, and HKSAR v Au Yeung Ng, CACC 153/2008, both being cases involving elderly assailants.

6.After hearing counsel in mitigation, I adjourned sentence until today, calling for a Background Report, a Psychiatric Report and Psychologist Report on the defendant, remanding the defendant in custody. I also asked the prosecution to inform me when it was that the defendant had complained to the home that his money had been stolen, and was informed that he had made such complaint in February, 2012,

7.I have before me now the Background, Psychiatric and Psychologist Reports on the defendant.  No issue is taken on the contents. Mr Tsang has informed me that although the defendant himself does not think his mental illness is as serious as described in the various reports, he understands and accepts the contents and recommendation and agrees to a hospital order being made.  He does not require that either psychiatrist be called to give evidence.  Mr Tsang has urged me to adopt the recommendation in the psychiatric reports and make a hospital order in respect of the defendant.

8.The Background Report discloses the defendant’s background in detail and I do not intend to rehearse the contents herein.  Regarding the present offence, he told the interviewing probation officer that on the material day, he had seen the victim steal his CSSA payment of HK$5,000. He refused to return it and the elderly home did not support his wish to report the matter to the police.  He was angry and committed the present offence days later – he admitted his wrongdoing and expressed verbal regret and sought forgiveness from the court and leniency.

9.The psychologist who examined the defendant opined that he ‘is a passive and solitary individual with low frustration tolerance, poor emotion control and inadequate problem solving ability. He is impulsive and shortsighted; as such he tends to act hastily and pay no need to the consequences of his actions. For him, real or imagined psychosocial stressors, like interpersonal difficulties, rejection, criticism, and provocation are likely to bring him anxiety and intense discomfort and therefore he tends to demonstrate exaggerated emotionality which appears to be closely related to the development of the current offending behavior’.  The psychologist also opined that the defendant’s insight into his mental health problem was assessed to be poor and the risk of recidivism of violence related offences still existed given his limited insight into his mental illness, poor emotion and impulse control and weak problem solving ability. The psychologist recommended psychological service focusing on instilling insight into his mental health problem, reality orientation, and behavioral management skills might be beneficial to the defendant, though his prognosis was impressed to be guarded given the degenerative nature of the defendant’s illness condition.

10.Although I had asked for one psychiatric report, I have been furnished with two. Dr Oliver Chan in his report opined that the defendant suffers from dementia, a condition marked by global cognitive impairment. He said that concurrently, the defendant demonstrated psychotic symptoms associated with dementia. Dr Robyn Ho in her report opined that the defendant suffers from dementia of a moderate grade with delusions, that he had paranoid delusions against the victim in the present offence, the staff in the old age home as well as the police – he believed they all tried to harm him because they were greedy. She opined that the offence was likely to be related to his poor mental state at the material time. His insight was limited and his prognosis poor. She also opined that the defendant had a propensity to violence.  Both psychiatrists recommended in-patient treatment in a secure setting as necessary for the health and safety of the defendant as well as for the safety of others and recommended the making of a Hospital Order under Section 45 of the Mental Health Ordinance, Cap 136, for at least 3 months. I do query whether 3 months will be adequate for effective treatment as both psychiatrists and the psychologist have indicated their reservations.  But the recommendation from both psychiatrists is a hospital order for 3 months.

11.Counsel in submission said the defendant was remorseful for what he had done and sought leniency on behalf of the defendant and submitted that the defendant is unlikely to re-offend – however, that is at odds with the opinions of both the psychiatrists and clinical psychologist, who all assess that there is a risk of his re-offending and the psychologist in his report put that risk as ‘not low’.  Counsel also submitted that the attack was provoked by the victim’s alleged theft of the defendant’s money. It is clear the theft was not immediately before the attack – the admitted facts put the defendant’s complaint of the alleged theft as being on 18^th April, 2012, whilst the wounding was on 28 April, 2012. Information from the elderly home provided by the police to me through the Department of Justice in their letter dated 12 July, 2012 indicates that the alleged theft was reported in February, 2012.  This is clearly a pre-meditated attack – the defendant armed himself with a cutter – he entered the victim’s room in the early morning and attacked the victim when he was sleeping in his bed – the injuries the victim sustained were serious ones, as depicted in the victim’s medical reports and photographs submitted.  Dr Robyn Ho in her report opined that the present offence was likely related to his poor mental state at the material time.

12.The strongest mitigation before me is the defendant’s plea.  I note that the defendant is now aged 82 years and I have borne this in mind in determining sentence. I have also borne in mind that he has been in custody since his arrest at the end of April, 2012.  I note too that he has been co-operative throughout. He has been out of trouble since 1982.

13.This is an offence of such seriousness that the norm is an immediate custodial sentence. In HKSAR v Hau Ping-chuen, CAAR 12/2007, in paragraph 15,  the Court referred to the decision in HKSAR v Tse Hok-lam [2005] HKLRD 344, where  it was held that the usual range of sentence for wounding with intent is described as being “3 to 12 years’ imprisonment”.  Here however, it is clear that the offence could be attributed to the defendant’s mental illness at the material time. It is clear too that what the defendant needs is treatment, and that will best be provided at the Siu Lam Psychiatric Centre.

14.I am satisfied on the written evidence of Dr Oliver Chan and Dr Robyn Ho, registered medical practitioners, that the defendant is a mentally disordered person and that the nature and degree of the mental disorder from which he is suffering warrants his detention in the Siu Lam Psychiatric Centre for treatment as recommended and I am of the opinion that a hospital order is the most suitable method of disposing of the case, for the health and safety of the defendant as well as for the safety of others.

15.In the exercise of the powers conferred on me by section 45(1) of the Mental Health Ordinance, Cap 136, I do authorize the admission of the defendant and his detention in the Siu Lam Psychiatric Centre for a period of 3 months as recommended by the two psychiatrists in their reports.