HKSAR v. Tang Ho Cho

DCCC 724/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 724 OF 2014

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REASONS FOR SENTENCE
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1.Tang Ho Cho you appeared before the court on the 3 March 2015 charged with wounding Madam Chan Suet Mui with intent to cause her grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance, Chapter 212. You pleaded guilty to the lesser offence of unlawfully and maliciously wounding Madam Chan, contrary to section 19 of the Offences against the Person Ordinance, which plea was accepted by the prosecution.

2.In summary you lived with Madam Chan for three years.   Madam Chan was aware that you needed to take psychiatric medication and that when you did not take your medication you become bad-tempered.  This resulted in frequent quarrels with Madam Chan when she reminded you to take your medicine.

3.On the morning of the 14 May last year you told Madam Chan you had no money.  You became annoyed when Madam Chan told you to ask the people who owed you money to repay you. Fearing you may become angry Madam Chan told you to take your medicine. 

4.You shouted at Madam Chan and told her you did not need to take medication.  You then picked up a chopper and said you wanted to commit suicide.  A struggle ensued during which Madam Chan was able to take the chopper from you.

5.Madam Chan put the chopper on the table and went to bed to try and get some sleep. You accused Madam Chan of having a boyfriend and of cheating you and asked her if she was afraid of you chopping her.  When Madam Chan again asked you to take your medicine you became very angry and took the chopper from the table and threatened Madam Chan. 

6.When Madam Chan pushed you away you grabbed her throat.  On seeing Madam Chan could not breath you released her warning her you would chop her if she tried to escape. Madam Chan said she would not escape and again asked you to take your medicine. 

7.When Madam Chan tried to leave the bedroom you grabbed hold of her shirt and swung the chopper at her during the course of which she sustained various injuries particularised in the medical reports submitted to court.  Madam Chan managed to push you away and rush out of the room into the lift lobby where she shouted for help. 

8.In passing sentence I have carefully considered everything said on your behalf by Mr Surman, together with the content of your mitigation letter; the psychiatric reports prepared by Dr Lee, Dr Liu and Dr Tung and the background report prepared by the probation service. 

Psychiatric illness

9.The psychiatric reports detail your psychiatric history including a history of self-inflicted harm and auditory hallucinations.  You were first diagnosed in 2005 with conduct disorder and polysubstance harm.  In 2011 you were diagnosed with schizophrenia although later the diagnosis was revised to drug induced psychosis. 

10.You told the police you had taken zopiclone at the time; that your mind was not clear and that you intended to kill yourself.  Similarly you have told Dr Liu and Dr Tung that due to substance abuse that morning you only had fragmented memory and fleeting images of what happened.  You also told Dr Tung that you did not intend to harm your girlfriend and told the probation officer that she was hurt accidentally.

11.At first sight this would appear inconsistent with the facts admitted by you.  Mr Surman on being asked the basis on which you plead guilty and therefore the factual basis on which I pass sentence informs the court that you plead guilty on the facts admitted by you. 

12.Self-induced intoxication cannot be relied upon to negative mens rea.  Without doubt you were under the influence of drugs.  The toxicology report, referred to by Dr Lee, revealing the presence of no less than eleven different drugs in your urine.  After careful consideration I am satisfied I can accept your plea and proceed to sentence you on the basis indicated in court, namely that you intended to commit suicide but due to the influence of drugs you do not remember how your girlfriend was actually injured.  In this way I am satisfied there is no inconsistency in the facts admitted by you and what you told the police and the doctors.

13.You cannot be given credit for a clear record having previous convictions, inter alia, for common assault, criminal intimidation, possession of an offensive weapon and assaulting a police officer.  Although you have a history of violent conduct I note that the offences of violence, except the offence of assaulting a police officer, were committed when you were aged 14 and 16 years old. 

14.The courts take a serious view of domestic violence.  Offences of domestic violence cannot be tolerated and are strongly to be deprecated for which deterrent sentences are appropriate.  Deterrent sentences are required not only to deter the individual but also to deter those persons like-minded to use violence to resolve domestic disputes. (see for example HKSAR v Lee Kin Wah HCMA 990/2009).  

15.Madam Chan was admitted to hospital for 6 days having suffered lacerations to the left arm, left wrist and the left side of the back; and bruising to the left eye and the left side of the throat.  The laceration to the left wrist was deep with the artery and nerve cut and multiple tendons cut.  The laceration to the left arm was also deep with partial triceps muscle cut.  These lacerations required emergency surgery for repair and suturing.  Photographs showing the scars have been submitted to court. I am told Madam Chan has fully recovered from her injuries. 

16.I am satisfied the proper starting point after trial is 2 years and 6 months imprisonment. Giving you full credit for your plea of guilty reduces the sentence to 1 year and 8 months imprisonment.

Mental health

17.Mr Surman explains the underlying reason for you to resort to this degree of violence is your psychiatric illness and that at the time you were very troubled and attempted to commit suicide.  As noted earlier you also told the police you intended to kill yourself and that you have a history of self-inflicted harm.   

18.In R v Wright [2001] 3 NZLR 22 the court said:

“It can be very difficult for a judge to sentence a person for serious violence induced by a mental disorder falling short of the legal defence of insanity. Often an imperative of public protection may overshadow considerations of reduced responsibility. But sometimes a Court is faced with balancing rightful condemnation of violent conduct, which has brought about tragedy and grief to others, with a just appreciation of reduced moral responsibility because of mental disorder, in circumstances where issues of deterrence and risk to others have limited application.”

19.In HKSAR v Chiu Peng, Richard [2002] 1 HKC 401 the Court of Appeal accepted that a court may properly allow a discount in sentence where a defendant is suffering from mental illness which played a part in the commission of the offence.  The court said the justification for a discount in sentence by reason of mental illness was,

“…as a reflection of diminished criminality or culpability on the part of the accused who has committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened.”

20.I accept you acted under the influence of drugs which no doubt played a part in leading the prosecution to accept a plea to the lesser charge of unlawful and malicious wounding.   Whilst sympathetic to anyone suffering from mental illness I am satisfied in the circumstances of this case there should be no further discount on account of the fact you were acting under the influence of drugs at the time. 

Forgiveness

21.Mr Surman tells the court that Madam Chan has forgiven you.  This is confirmed by the probation officer.  Whilst the view of the victim is to be taken into account the court must not be deflected from the duty to impose a sentence appropriate to the gravity of the offence.  Bridge LJ in R v Buchanan [1980] 2 Cr App R (S) 13 said: 

“It is always sad when a case of this nature comes before this Court, where an offence of gross violence has been committed in a purely domestic context. It is by no means an unusual feature of such cases that the victim, after the event, has entirely forgiven the offender and is anxious to minimise the punishment he must suffer. It is sometimes suggested… that because the offence occurred in a purely domestic context, it was a matter of purely domestic concern. That is a wholly erroneous view and one which no court can entertain. When such offences of violence are committed, whoever the victim may be, the matter is inevitably one of considerable public concern. The courts cannot regrettably be deflected from their duty of imposing sentences appropriate to the gravity of the offence when crimes of violence of this nature are committed against a domestic background.”

22.Taking into account the forgiveness of Madam Chan and that notwithstanding Madam Chan does not want to pursue the case you have nevertheless still pleaded guilty I further reduce the sentence by 2 months.  You are convicted of unlawfully and maliciously wounding Madam Chan, contrary to section 19 of the Offences against the Person Ordinance and sentenced to 1 year and 6 months imprisonment.