DCCC1137/2023

DCCC1137/2023

A A B B DCCC 1137/2023 C [2024] HKDC 820 C D IN THE DISTRICT COURT OF THE D HONG KONG SPECIAL ADMINISTRATIVE REGION E E CRIMINAL CASE NO 1137 OF 2023 F F ---------------------------- G G HKSAR H v H HO MING TAT I I ---------------------------- J J Before: His Honour Judge Tam K K Date: 22 May 2024 L Present: Ms Chan Yin Yung Annabelle, Acting Senior Public L Prosecutor, for HKSAR M M Mr Wong Kai Yi Stephen, Counsel instructed by Yip, Tse & N N Tang, assigned by the Director of Legal Aid, for the defendant O Offence: Wounding （傷人） O P P ----------------------------------------- Q REASONS FOR SENTENCE Q ----------------------------------------- R R S S T T U U V V  -2- A A B B 1. Mr Ho Ming Tat (“Mr Ho”) pleaded guilty before me to one C charge of Wounding, contrary to section 19 of the Offences against the C Person Ordinance, Cap 212. Particulars are that he, on 30 June 2023, at D D Room 3017, Mei Leong House, Shek Kip Mei Estate Phase 2, Sham Shui E Po, Kowloon, in Hong Kong, unlawfully and maliciously wounded Ho Sai E Ho (PW1, son of Mr Ho). F F G Facts admitted by Mr Ho G H H 2. PW1 resided with his father Mr Ho at Room 3017, Mei Leong I House, Shek Kip Mei Estate Phase 2 (“the Flat”). I J J 3. On 29 June 2023, at around 11 pm, PW1 returned to the Flat K with his girlfriend. They stayed to rest in PW1’s room. K L L 4. At around 2 am on 30 June 2023, Mr Ho knocked on PW1’s M room door and scolded PW1 for bringing his girlfriend home. PW1 M ignored Mr Ho. N N O 5. At around 5:45 am, Mr Ho knocked on the door again, urging O PW1 to come out to the living room. Mr Ho told PW1 if the latter were to P P bring anyone (meaning a girlfriend) home again, Mr Ho would stab both Q PW1 and that person to death. In response, PW1 said, “Don’t be crazy.” Q R R S S T T U U V V  -3- A A B B 6. Mr Ho then went into his own room and took out a pair of C scissors and stabbed towards the direction of PW1’s upper body. C Instinctively, PW1 blocked the approach with his left hand, resulting in D D injuries to the area between the thumb and the index finger. Mr Ho E continued to attack PW1 with the scissors for about 20 times over a E duration of 5 minutes. F F G 7. Eventually, PW1 managed to block the attacks with a chair G and he pushed Mr Ho onto a sofa. Mr Ho finally stopped. H H I 8. PW1’s girlfriend stayed inside PW1’s room but heard what I happened and made a police report. J J K 9. At around 6:03 am, police arrived. PW1 was found seated on K the sofa with injuries to his left palm. PW1 identified Mr Ho as the attacker L L who injured him earlier with a pair of scissors because he brought his M girlfriend home. M N N 10. Mr Ho was arrested for “wounding”. Under caution, he O admitted stabbing PW1 because the latter brought his girlfriend home and O he (Mr Ho) did not like it. A pair of scissors 18 cm long was found in the P P vicinity of the main entrance and seized. Mr Ho re-affirmed his earlier Q admission at a later record of interview conducted on the same day. Q R R S S T T U U V V  -4- A A B B 11. PW1 was sent to the hospital in a conscious state. Medical C examination showed a 2.5 cm deep laceration on the left dorsal hand and a C 1 cm superficial laceration on the left proximal forearm. He was admitted D D to Caritas Medical Centre on 30 June 2023. Operation for wound E exploration and repair was done on 1 July 2023. No significant tendon or E muscle injury was revealed. He was discharged on 3 July 2023. F F G 12. On a subsequent follow-up on 19 July 2023, it was found that G PW1’s wounds had healed well with no major functional impairment. No H H further follow-up was arranged. I I Criminal record J J K 13. Mr Ho has a clear record. K L L Antecedents M M 14. Mr Ho is aged 71 (70 at the time of the offence), educated to N N P6 level in Hong Kong. He is a retiree. Mr Ho is married and has a son O (37) and a daughter (33). O P P Mitigation Q Q 15. Mr Stephen Wong of counsel assigned by the Director of R R Legal Aid mitigated on behalf of Mr Ho. The following is a summary of S the mitigation submissions. S T T U U V V  -5- A A B B 16. There are no sentencing guidelines or tariffs for the offence of C section 19 wounding. Each case must be decided on its own facts. C D D 17. Mr Wong submitted that Mr Ho’s offending in this case is not E at a high level of seriousness. E F F 18. It was further submitted that the attack was not premeditated G and the injuries were not serious; that it was unfortunate that a domestic G dispute ended up in court. H H I 19. Mr Ho is aged 71 and has a clear record. He started working I in 1965 after Primary 6, first in a printing house, then as a casual worker in J J a restaurant and take-away deliverer. In 1969, he became an apprentice in K a bakery in Kwun Tong earning around $180 per month, eventually K becoming a bakery master in 1973/74 and has since been working as such L L till he retired in 2012. Before retirement, he was earning around $10,000 M per month. M N N 20. Mr Ho got married in 1982. In 1986, a son (victim in this case) O was born. In 2000, Mr Ho was provided with public housing and since O then he was living there with his family. P P Q 21. Mrs Ho has retired. The son and daughter are both working. Q R R 22. Mr Ho has exhausted his MPF monies and depended on S government subsidies/ allowances for elderly persons in the region of S $4,000 per month. T T U U V V  -6- A A B B C 23. Although living as a family, Mr Ho has a monotonous life and C maintained minimum communications with his son. D D E 24. Mr Ho did not like his son’s girlfriend staying overnight E because of the limited space and facilities. In addition, he had the F F impression his son wanted him to move out of the flat. G G 25. Since arrest, Mr Ho has cooperated with the police and H H correctional services. He expressed deep remorse and pleaded guilty in a I timely manner. I J J 26. Mr Ho’s mental health is a concern. After being remanded K since arrest, Mr Ho was transferred from Lai Chi Kok Reception Centre to K Siu Lam Psychiatric Centre on 18 September 2023 for “psychiatric L L assessment for depressed mood, memory decline and hearing voice of M deceased”. M N N 27. It was revealed in a Psychiatric Report dated 26 February O 2024 that “[i]n the recent two years, Mr Ho reported hearing of non- O existing voices of his elder brother and some other relatives who were P P deceased in both day and night, which would even ask him to kneel down Q to beg for his forgiveness or speak with some derogatory content. He also Q believed that he was being controlled and monitored by mobile phone, R R which therefore he refused to use phone.” S S T T U U V V  -7- A A B B 28. In his account of the offence, Mr Ho told the psychiatrist that C he “conflicted with his son at 2 a.m. on the day of offence. Then he recalled C hearing non-existing voices at around 5 a.m. which he was not sure whether D D it was from his son’s room.” E E 29. The psychiatrist was of the opinion that Mr Ho “is impressed F F to be suffering from psychosis. He is currently remanded at SLPC as we G were offering him anti-psychotic medications as he was still actively G psychotic.” H H I 30. On the day when plea & sentence date was fixed, the court I called for two psychiatric reports on suitability of Hospital Order. J J K 31. Two such reports came back one of which was authored by K the previous psychiatrist (Dr Ho Chun Hing). In Dr Ho’s second report L L dated 13 May 2024, it was stated that Mr Ho “remained calm and settled M in SLPC. His mood was largely neutral and his affect (sic) was congruent M and reactive. His speech was coherent and relevant and there were no N N features of formal thought disorder. He reported active auditory O hallucination of hearing a male voice responding to his self-talk. He denied O delusion, suicidal ideation or violent or revengeful ideas.” P P Q 32. Dr Ho continues to be of the opinion that Mr Ho “is impressed Q to suffer from psychosis. Despite medical titration, Ho still remained R R psychotic with persistent auditory hallucination. Further inpatient S psychiatric treatment is warranted. If the court sees fit, I respectfully S recommend a four-month Hospital Order …” T T U U V V  -8- A A B B C 33. In Dr Amy Liu’s report dated 14 May 2024, she shared with C Dr Ho’s opinion that Mr Ho was suffering from Psychosis and remained D D “psychotic with persistent auditory hallucination”. Dr Liu went further to E say that Mr Ho “poses risk towards others and further inpatient psychiatric E treatment is warranted”. Like Dr Ho, Dr Liu recommends a Hospital Order F F for a period of 4 months under Section 45 of the Mental Health Ordinance. G G 34. In view of all the circumstances of the offending acts (the H H seriousness of the injury, how the attack came to happen, and Mr Ho’s I involvement in that attack in particular), as well as those mitigating I circumstances of Mr Ho’s person (his elderly age, father-and-son J J relationship and remorse in particular), Mr Wong seeks to urge the court to K consider whether there are other more suitable methods of disposing of this K case than making a Hospital Order as recommended by the two L L psychiatrists pursuant to section 45(1)(b) and (c) of the Mental Health M Ordinance, including adopting a starting point of 7-12 months’ M imprisonment, giving allowance for his guilty plea. N N O 35. Given the intention of Part III (including section 45) of the O Mental Health Ordinance is to regulate the manner in which persons P P suffering or appearing to be suffering from mental disorders may be Q received, detained and treated, and in particular where, as Dr Liu puts it, Q there are risks towards others, Mr Ho should have no good reasons to R R oppose a Hospital Order if the court is minded to make one. S S T T U U V V  -9- A A B B 36. Lastly, Mr Wong asked the court to make an endorsement C under section 45(1A) of Cap 136 to the effect that the proviso to section C 47(2) should not apply if the court is minded to make a Hospital Order. D D E Psychiatric reports E F F 37. Two psychiatric reports were called for by the plea court at an G earlier mention hearing on 25 April 2024 at the request of the defence. G H H 38. Of the two reports, the one written by Dr Amy Liu is the more I detailed. I shall extract parts of it and repeat them below:- I J J “Ho is diagnosed suffering from Psychosis. The underlying etiology is still unclear. The differential diagnoses could include K psychotic depression or organic psychosis. Ho remains K psychotic with persistent auditory hallucination. He poses risk towards others and further inpatient psychiatric treatment is L L warranted. A period of inpatient psychiatric treatment is highly recommended…” M M 39. Both psychiatrists are of the opinion that Mr Ho is mentally N N fit to plead. They both recommend a Hospital Order of 4 months’ duration O under section 45 of the Mental Health Ordinance, Cap 136. O P P Sentence Q Q 40. I note that Mr Ho has been in custody since the date of arrest. R R In other words, he has been in custody for just under 11 months. S S T T U U V V  - 10 - A A B B 41. The maximum penalty for a Wounding offence under section C 19 is 3 years’ imprisonment. C D D 42. I have considered the facts of the case. I have read the two E psychiatric reports called for by the plea court. E F F 43. I have considered the mitigation submissions. G G 44. Both psychiatrists are of the firm view that Mr Ho is still H H suffering from Psychosis. As such, for Mr Ho’s best interests and for the I protection of the community, a Hospital Order would appear to be the best I sentencing option. J J K 45. Having read the psychiatrists’ reports, I am satisfied that:- K L L (a) Mr Ho is a mentally disordered person; and M M (b) the nature or degree of the mental disorder from which N N Mr Ho is suffering warrants his detention in a CSD O Psychiatric Centre or a mental hospital for treatment. O P P 46. In considering whether to impose a Hospital Order in lieu of Q imprisonment, I bear in mind the interests of Mr Ho and the protection of Q the public. R R S S T T U U V V  - 11 - A A B B 47. In HKSAR v Chiu Yu To [2001] 3 HKC 186, 192, Stuart- C Moore VP (as he then was) said:- C D D “Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached E on the basis that the law, where possible, should facilitate E treatment in hospital.” F F 48. I am therefore of the opinion, having regard to all the G circumstances including the nature of the offence and the character and G antecedents of Mr Ho, and to the other available methods of dealing with H H him, that the most suitable method of disposing of the case is by means of I I a Hospital Order. J J 49. I am further satisfied that arrangements have been made for K K the admission of Mr Ho to Siu Lam Psychiatric Centre within 28 days from L today. L M M 50. Both psychiatrists recommended detention for a period of 4 N months. N O O 51. Before deciding on the length of detention, I have had regard P to the time Mr Ho has already spent in remanded custody (including time P spent in Siu Lam), and the likely term of imprisonment that I would have Q Q passed on him had I taken that sentencing option. R R 52. After considering all the circumstances, I am not prepared to S S make an endorsement under section 45(1A) of Cap 136. T T U U V V  - 12 - A A B B (Mr Ho, please stand) C C 53. In the premises, I sentence Mr Ho by imposing on him a D D Hospital Order made under section 45 of the Mental Health Ordinance, Cap E 136, authorizing him to be admitted to and detained in Siu Lam Psychiatric E Centre for a period of 4 months. F F G G H H I I ( Isaac Tam ) J District Judge J K K L L M M N N O O P P Q Q R R S S T T U U V V