HKSAR v. Chiu Wai Ka

DCCC 97/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 97 OF 2014

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Reasons for Sentence

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1.Yes, the defendant was convicted after trial of two offences of wounding with intent, contrary to section 17(a) of Cap 212, two offences of assault occasioning actual bodily harm, contrary to section 39 of Cap 212, and one offence of common assault, contrary to section 40 of Cap 212. The details of those offences and the facts can be found from my reasons for conviction.

2.In summary, the offences occurred after police were called to the defendant’s home where he lived with his parents.  He had confined himself to his bedroom.  After attempting to persuade him to leave, the defendant armed himself with a chopper, struck two police officers with that chopper, including seriously wounding one of them to the head, tied up an ambulanceman and bit another ambulanceman and a police officer who were endeavouring to subdue him and seize the chopper.

3.During trial, there was evidence from both the prosecution and defence that the defendant was suffering from paranoid schizophrenia at the time of the offences and was labouring under a series of delusions created by his mental illness and also that he had been unwell in this form since at least 2008 and had remained untreated.  Therefore, on conviction, I sought to obtain psychiatric reports to see if the defendant was susceptible to being dealt with by a hospital order and if his condition was treatable.  Whilst his condition remains untreated, he is a threat both to himself, to his family and to the general public at large.  His condition needs treating.

4.The psychiatric reports I obtained indicate that the defendant’s condition is susceptible to treatment.  I read the clinical conclusion of the two reports.  The first is a report by Dr S H Lui dated 26 June 2014.  His opinion is the defendant is suffering from a mental illness, namely, schizophrenia marked by disordered thinking and deterioration in the personality.  Hospital treatment is indicated given his unpredictable and aggressive behaviour and poor insight regarding the illness. If the court sees fit, he says, “I would recommend that the defendant be committed to Siu Lam Psychiatric Centre under section 45 of the Mental Health Ordinance for a period of six months.” 

5.Dr Amy Liu, whose evidence was received at trial, also provided a further report dated 19 June 2014.  She says:

“Regarding the present mental condition, he was calm and co-operative when being seen by the undersigned. Mild loosening of associations was observed in his speech. The effect was shallow. He denied active hallucination, suicidal or aggressive idea. He persistently refused psychiatric treatment.”

Her opinion:

“He was diagnosed suffering from paranoid schizophrenia. He presented with functional deterioration, social withdrawal, paranoid delusion throughout the years. His beliefs of being ill-treated and disturbed by neighbours, the police and the doctors persist. He has very poor insight towards his mental condition. He refused any treatment since he was remanded. In-patient psychiatric treatment is highly recommended in this case. If the court sees fit, I respectfully recommend a hospital order under section 45 of the Mental Health Ordinance for a period of six months. The sentence can be served at Siu Lam Psychiatric Centre. Provision has been made for him.”

6.These reports are quite unequivocal in their conclusions as to the defendant’s condition and the treatment required and the period of treatment that is necessary. 

7.Looking at the principles of sentencing of mentally disordered defendants, mentally disordered defendants are approached on the basis that the law, where possible, should facilitate treatment in hospital.  The court is prepared to abandon concepts of retributive deterrence when dealing with a mentally disturbed defendant who has committed even a serious offence of violence which would, in the normal way, attract a deterrent sentence.  Sentences of imprisonment are only to be used where a hospital order is unsuitable.  That is the principle.

8.Clearly, this is a case where, in the absence of a mental illness or mental disorder, a deterrent sentence of imprisonment would be imposed and retributive deterrence would be the principle of sentencing.

9.I turn to the recommended order in this case which by both psychiatrists is a hospital order.  A convicted person, who is the subject of a hospital order, is treated as a patient who is suffering a mental illness and requires treatment in a secure setting either as protection for the patient himself or for protection of the general public.  For a patient under a hospital order with a specified term as recommended here, the patient can either be discharged at the end of the term pursuant to section 50, Cap 136, or if still unwell, he can be certified under the provisions of section 36 for continued treatment.  The patient is then subject to discharge pursuant to the provisions of section 42A if his condition improves.  

10.Also it is said in fixing the duration of a hospital order, the court should not equate its length for the sentence of imprisonment it would have imposed had such an order not been appropriate, and the authority for that is R v Lam Yuen Siu [1993] 2 HKC 272.  It is said its duration should take account of the recommendation of the doctors.

11.Therefore, armed with the principles, I note that certainly in respect of the first two offences, lengthy sentence of imprisonment could be imposed in normal circumstances and the court would approach on a deterrent basis.  However, clearly, that is not the correct approach in cases such as this where there is clear evidence of lengthy mental disturbance both in the commission of the offence and the subsequent psychiatric evaluations.

12.My conclusion is that this is the case of a mentally disordered person with a longstanding mental disorder.  In this case, I am bound to follow the recommendations contained in the two reports, the two psychiatric reports which I have requested.  The defendant undoubtedly suffers from a mental illness, namely, paranoid schizophrenia.  Hospital treatment is indicated and undisputed.  Therefore, in terms of sentence, he will be committed on each charge to the Siu Lam Psychiatric Centre under section 45 of the Mental Health Ordinance for the recommended period of 6 months, and that will be the sentence of this court, a hospital order of 6 months, committal to the Siu Lam Psychiatric Centre on each charge.

(T Casewell) District Judge