HKSAR v. LI HOI MAN

DCCC691/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 691 OF 2010

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HKSAR
v.
LI Hoi-man
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Before: H H Judge Anthea Pang

Date: 17 January 2011 at 2.36 pm

Present: Mr Francis Yip, Counsel on fiat, for HKSAR
Mr Wong Hay Yiu, instructed by Messrs Lau Pau & Co., assigned by the Director of Legal Aid, for the Defendant

Offence: (2) Wounding (傷人)
(3) Assault occasioning actual bodily harm (襲擊他人致造成身體傷害)

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Reasons for Sentence

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1. The Defendant pleaded guilty to a charge of wounding (2nd charge), contrary to section 19 of the Offences against the Person Ordinance (“OAPO”), Cap. 212, and a charge of assault occasioning actual bodily harm (3rd charge), contrary to common law and punishable under section 39 of the OAPO. The wounding charge is the alternative charge to a charge of wounding with intent (1st charge), contrary to section 17(a) of the OAPO, to which the Defendant pleaded not guilty. Mr. Yip, who prosecuted on fiat, informed the court that the plea to thelesser charge, the 2nd charge, was acceptable to the prosecution. As a result, and as the Defendant admitted the summary of facts, he was convicted of the2nd and the 3rd charges accordingly.

2. Briefly, the facts were that a few days prior to the attack, the Defendant had invited a couple to stay at his home. However, inthe evening of 17 May 2010, the Defendant demanded the couple to leave. They agreed and promised to leave on the following day. Yet,early the following morning, the Defendant woke up the couple and asked them to leave immediately. They ignored him. The Defendantthen went into the kitchen and picked up a chopping knife to chop them. The couple got injured but managed to escape. A report wasthen made to the police.

3. Upon initial examination, the man was found to have a cut wound on both hands. However, he was later found to have a superficiallaceration on his neck and a 4 cm wound on his right wrist and a 1 cm wound at his left ring finger. An emergency operation was conductedand it was found that there was a complete cut of multiple tendons. The woman was found to have abrasions on her left shoulder andher both hands. She was treated and discharged on the same day.

4. The Defendant is now aged 45 and is single. Prior to his arrest, he lived alone in the flat where the offences took place. He waseducated up to Form 1 but he quitted school in 1980. The Defendant worked as a cook in the Netherlands between 1981 and 1991. Afterreturning to Hong Kong, he has worked as a kitchen worker, a security guard and a decoration worker. He has been unemployed since1997 and has been on social security since then.

5. The Defendant has been before the court on 16 previous occasions, the earliest being in 1983 and the latest being in March 2009.Most of his convictions are for the offence of “possession of a dangerous drug”. In 2000, he was sentenced to Siu Lam PsychiatricCentre for 2 months in relation to his “theft” conviction. Then, in March 2009, he was again sentenced to Siu Lam PsychiatricCentre for 4 months in relation to the offence of “obtaining property by deception”.

6. In mitigation, it was said that the Defendant is a drug addict and he was diagnosed to be suffering from schizophrenia in 1994.Since then, he has been sent to the Castle Peak Hospital and the Siu Lam Psychiatric Centre for treatment on a number of occasions.Mr. Wong for the Defendant told the court that the victims were in fact drug addicts with whom the Defendant has become acquaintedin the past years. Mr. Wong said that prior to the offences taking place, the Defendant’s elder sister had paid him a visit athis home and had given them some money to buy food. However, the couple spent the money on drugs and the Defendant therefore askedthem to leave.

7. Mr. Wong informed the court that the Defendant has defaulted his follow-up psychiatric treatment after his release from Siu LamPsychiatric Centre in November 2009. Mr. Wong pointed out that the main reason for the Defendant’s commission of the present offenceswas his mental condition.

8. In view of the Defendant’s past medical history, I have asked for two psychiatric reports to be prepared in order to see whatthe Defendant’s psychiatric condition is, and whether it is recommended that a hospital order be imposed.

9. These reports are now with me. According to both Dr. C. H. Yuen and Dr. K. W. Chow, the Defendant has been suffering from schizophreniasince 1994. He has shown no remorse and he still displays marked anger towards the victims in this case. Dr. Chow further noted thatthe Defendant has the history of assaulting his mother and of slashing his own abdomen under the influence of psychotic symptoms.He also has the history of drug overdose and turning on gas stove in a suicide attempt.

10. Despite the Defendant’s remand in Siu Lam Psychiatric Centre since May last year, his condition has deteriorated. Dr. Yuen’sopinion, in summary, is this :

“Defendant’s mental state has deteriorated in the past 6 months despite treatment. Prognosis is poor. It is impossible to predictat this stage when he would be adequately recovered and fit for discharge. He definitely has a high risk of violence towards othersand should require treatment in a secure setting. For this current offence, I would recommend the court to give him a sentence underHospital Order for an unspecified period under Section 45 of the Mental Health Ordinance. …”

11. Similarly, Dr. Chow’s opinion, in summary, is this :

“From the written material I have available to me, and Mr. Li’s presentation during the interview, it is my opinion that Mr. Liis suffering from schizophrenia with active psychotic symptoms. His mental condition has shown no improvement in the past few monthsdespite active psychiatric treatment. He has high risk of violence under influence of psychotic symptoms and he shows no insighttowards his mental illness. In view of his current poor mental condition and poor response despite active treatment, it is difficultto predict when he would be recovered and fit for discharge. If the Court sees it fit, I would respectfully recommend the Court togive him a Hospital Order, under Section 45 of the Mental Health Ordinance, for an unspecified period. …”

12. In R v Tsui Chung-leung [1977-1979] HKC 419 at 420, Roberts CJ said,

In our view, it is proper for a court to issue a mental health order without any period being specified therein, unless the medicalopinion of psychiatric specialists who have examined the patient is to the effect that the patient can confidently be expected tobe fit for release within a specified period. If the doctors cannot express this degree of confidence, it is wiser, both in the interestsof the patient and for the protection of the public, that the order should have no term attached to it.

13. For the charges to which the Defendant has pleaded guilty, each carries a maximum penalty of 3 years’ imprisonment. However, inthis case, it is clear that the Defendant requires treatment rather than punishment.

14. Having considered the materials before me as well as the doctors’ recommendations and opinions, I am of the view that for theprotection of the public and in the interests of the Defendant, the most appropriate method to deal with him is to have a HospitalOrder for an unspecified period imposed under section 45 of the Mental Health Ordinance, Cap. 136, and to have him detained in Siu Lam Psychiatric Centre.

15. It is clear that if the Defendant is not given proper treatment, he will not only pose a danger to himself in view of his past suicideattempts, but will also pose a real danger to others given his past history of assaulting his mother and his commission of the presentoffences as well as the doctors’ observation that he still harbours hatred towards the victims. I therefore impose a Hospital Orderfor an unspecified period and for the Defendant to be detained in Siu Lam Psychiatric Centre in respect of both the 2nd and the 3rd charges to which the Defendant has pleaded guilty.

(Anthea Pang)
District Judge