A HCCC 181/2023 A
[2023] HKCFI 3124
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 181 OF 2023
D ----------------- D
HKSAR
E E
v
F F
Yu Kwan-man
G ----------------- G
Before: Hon D’Almada Remedios J
H Date: 8 November 2023 at 2.36 pm H
Present: Mr Isaac Guan, SPP of the Department of Justice, for
I
HKSAR I
Mr Keith Fung, instructed by Solomon C Chong & Co,
assigned by DLA, for the accused
J Offence: Wounding with intent (有意圖而傷人) J
---------------------------------
K K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: Defendant, on 10 July 2023, you pleaded guilty before a
M magistrate at the Eastern Magistracy to a charge of wounding M
with intent, contrary to section 17(a) of the Offences
Against the Person Ordinance, Chapter 212. At the same
N N
time, you also admitted a Summary of Facts. As a result of
your plea of guilty, you were committed here to the Court of
O First Instance for sentence. O
The charge to which you pleaded guilty to sets out that on
P 24 April 2022, at your home in King Wing House, Shan King P
Estate, New Territories, in Hong Kong, you unlawfully and
maliciously wounded Yu Ho-kee, with intent to do him
Q Q
grievous bodily harm. You are the father of Yu Ho-kee, your
son was aged 39 at the time.
R R
At the material times, you, your wife, and your son and his
wife resided at the home at King Wing House. Your
S relationship with your son was not a good one. You often S
had disputes and quarrels and these kept increasing over the
T
years. T
On the date of this offence, at around 9 am, after your son
U had woken up, he had pulled open the door of the cabinet and U
CRT26/8.11.2023/JC 1 HCCC 181/2023(1)/Sentence
V V
A accidentally hit the television placed on the cabinet. Upon A
seeing that, you immediately blamed him and asked him if he
intended to smash the television. A quarrel then ensued.
B B
You became agitated and grabbed a round stool. Fearing that
you would hit your son with the stool, your son snatched the
C C
stool away immediately. Your son forced you into the
kitchen and you then suddenly grabbed a chopper and chopped
D your son. Your son defended himself from the chopping with D
his right arm. Nevertheless, he was unable to do so and you
then chopped his forehead.
E E
Your son had suffered multiple chop wounds over his head,
his arm, his hand, and received deep to the bone wounds and
F F
deep into the muscle wounds. Your son also incurred a
fractured skull as a result of you chopping him.
G G
Your son was hospitalised for about 10 days thereafter and
had during his admittance in the hospital had surgery. The
H follow-up on 25 May 2022 found that your son’s wounds had H
healed well with no signs of infection. The left elbow
I
range of motion was from 5 degrees to 100 degrees and he has I
had to receive further rehabilitation.
J At the time of the offence, the police were called. You J
were arrested for the offence of wounding. Under caution,
you immediately admitted that you chopped Yu Ho-kee with the
K knife but you said you did this out of impulse. K
L It is clear from the facts of this case that after you had L
realised the seriousness of injuries that you had caused to
your son, you told your wife to immediately call the police.
M In the Summary of Facts, it states that your relationship M
with your son has been poor for years.
N You are now 74 years of age, educated up to Form 3. You N
were originally a plastic factory worker and then worked as
O a security guard. You are a man of clear record. You are O
married and have two sons, the victim of this charge being
your youngest son.
P P
Your counsel, Mr Keith Fung, had on the first appearance
before this court when you came up for sentence on
Q Q
18 October 2023, submitted to this court as he has done
today that you and your family appreciate that you have a
R mental problem or illness and you yourself were of the R
opinion that a hospital order would help you to recover from
your mental illness.
S S
As at 18 October, I had had before me four psychiatric
reports which were called for at the magistracy. They were
T T
the first lot, that is two reports, were written in June
2022. In those reports, the psychiatrists Dr Jane So and Dr
U Lydia Lam had both recommended a hospital order for U
CRT26/8.11.2023/JC 2 HCCC 181/2023(1)/Sentence
V V
A 3 months. At that time, you were remanded at the Siu Lam A
Psychiatric Centre.
B In January 2023, the magistrate called for a further two B
reports, those two reports also by Dr Jane So, but this time
by another visiting psychiatrist Dr Lin Hiu-yu, were of the
C C
opinion that you were mentally fit to plead and that further
psychiatric care was required for your condition.
D D
So by the time this case came up for sentence some nine
months later, I called for updated psychiatric reporst again
E from two psychiatrists, given your mental condition. The E
reports I received were dated 30 October 2023, again by Dr
Jane So and this time by another visiting psychiatrist, Dr
F F
Lau Hoi-ki compiled the reports. The psychiatric reports
maintained that you are mentally fit to plead. However,
G those reports state that further compulsory in-patient G
treatment is not recommended and that out-patient follow-up
treatment is recommended for monitoring your condition.
H H
As Mr Fung correctly states today, the psychiatrists are no
I
longer recommending or suggesting a hospital order, despite I
the fact that you, yourself think you require assistance and
treatment through medical care and an hospital order.
J J
On 18 October, apart from seeking two further psychiatric
reports, I also called for a background report. I shall
K return to the probation officer and that background report K
later in my sentence.
L L
As Mr Fung has correctly conceded, the offence to which you
have pleaded guilty to is a very serious offence because the
M offence contains the ingredient that you, the offender, M
intended to inflict really serious injury at the time of the
offence. However, sentencing in relation to section 17,
N wounding with intent, is very much case specific and there N
is no tariff as such. Sentences generally range between
O 3 to 12 years’ imprisonment as can be seen in Cross and O
Cheung, 10th Edition, page 874.
P Very shortly after the commission of this offence, P
defendant, you were admitted into Castle Peak Hospital. You
were observed to have depressive and psychotic symptoms.
Q Q
Shortly after that, you were moved to the Siu Lam
Psychiatric Centre. Since then, for the last 17-odd months,
R you have been treated for your mental condition at Siu Lam R
Psychiatric Centre.
S The psychiatrist who examined you shortly after the S
commission of the offence diagnosed you as suffering from
severe depressive episode with psychotic symptoms at the
T T
time of the offence.
U U
CRT26/8.11.2023/JC 3 HCCC 181/2023(1)/Sentence
V V
A You have had no family history of mental illness and you A
were not known to the Mental Health Service prior to your
commission of the present offence. You had reported to the
B psychiatrist that your mental state was stable in the past B
until you had a stroke in 2012, after which you easily
became irritable over trivial matters.
C C
You also had frequent conflicts with your younger son, the
D victim, who lived at home regarding your son’s bizarre D
behaviour. You felt frustrated at your son’s behaviour at
home which led to frequent complaints from your neighbours.
E During the pandemic, your mood further worsened. You had E
increased difficulty in controlling your temper. You
experienced pervasive depressed mood, reduced energy level,
F F
poor sleep, and reduced appetite.
G Prior to this, you had coped with the stress by hiking but G
you were unable to hike as frequently and often had to stay
at home due to the pandemic.
H H
As can be seen from the background report submitted by the
I
probation officer at paragraph 5, after she had interviewed I
your younger son, your wife, and your elder son, the victim
in this case has started manifesting bizarre behaviours when
J he completed Secondary 3. At the time, your son denied J
having any problems and refused to see a doctor. After the
events of this case, your son was assessed to be suffering
K from obsessive compulsive disorder with autistic features K
and was required to attend follow-up at the Tuen Mun Mental
L Health Centre. L
According to your wife, your son now takes psychiatric drugs
M daily and has improved with drug compliance. Your son is M
also assisted by his older brother. Your son is receiving
assistance from other organisations and it appears with
N medical treatment and community support, your son has N
achieved progress and his bizarre behaviours were reduced
O significantly. O
Your son himself has said that the psychiatric treatment on
P his condition has been effective and has improved his P
behaviour greatly. He now no longer slammed the doors and
he washed his hands less frequently. Twas confirmed by
Q Q
your wife. Since the conflict used to arise from his
bizarre behaviours, your son believed that his progress can
R avoid the discontent between yourself and him and avoid R
conflicts. Your son has showed confidence that he will have
a better mental state with the assistance of his treatment.
S S
It is clear to me from the reports that at the time you
committed this offence, you were diagnosed with a
T T
significant mental illness. The attack on your son occurred
after an incident of him again slamming doors and a quarrel
U ensued between yourself and him. U
CRT26/8.11.2023/JC 4 HCCC 181/2023(1)/Sentence
V V
A A
The psychiatrist has confirmed that right before you had
chopped your son, you had heard voices asking you to chop
B your son. The psychiatrists have also stated that prior to B
you chopping your son, in the months prior to that you had
sometimes heard voices commenting that life was unfair and
C C
that you should chop him.
D As Mr Fung has correctly pointed out, now that the two D
psychiatrists do not recommend a hospital order, the most
appropriate sentence in this case, given the gravity of the
E offence, is one only of imprisonment. In sentencing you, I E
must take into account that you had suffered from a mental
illness which played a part in the commission of this
F F
offence. The Court of Appeal held in HKSAR v Chiu Peng
[2002] 1 HKLRD 185, that the court could properly allow a
G discount to the sentence to reflect the diminished G
criminality or culpability.
H The court applied the case of Parnis v R [1944] 126 ALR 423. H
In Chiu Peng, the Court of Appeal allowed a discount of 6
I
months’ imprisonment as the accused had committed the crime I
under an abnormal state of mind. In other words, the
accused knew that it was wrong to commit the crime but did
J not appreciate that the commission was as serious as it was, J
therefore the degree of culpability was thus lessened.
K Appearing before me today on behalf of the prosecution is K
Mr Isaac Guan, prior to his appearance was former Senior
L Public Prosecutor, Ms Grace Chan who I am informed has since L
retired. On 17 October, she submitted additional sentencing
authorities that the court consider in relation to
M sentencing accused with mental disorders. They were Parnis M
v R [1993] 49 FCR 304, R v Tsiaras [1996] 1 VR 398, R v
Wiskich [2000] SASC 64, HKSAR v Chiu Peng [2002] 1 HKLRD
N 186, R v Tsui Mei Ying [2002] 4 HKC 689, R v George [2004] N
149 A Crim R 38 and R v Verdins [2007] 16 VR 269.
O O
The court has considered all of these cases but the
principle really as stated in Verdins to which the Hong Kong
P courts have had regard to, and have referred to in Chiu Peng P
held that whereas general deterrence is a relevant
consideration, in every sentencing exercise it is a
Q Q
consideration to which less weight should be given in the
case of an offender suffering from mental disorder or
R intellectual handicap. R
In the case of Verdins, in the Australian Court of Appeal,
S they held impaired mental functioning, whether temporary or S
permanent, was relevant to sentencing in at least the two
following ways amongst others that the court therein held.
T T
The first was the condition that reduced the moral
culpability of the offending conduct as distinct from the
U offender’s legal responsibility, where that was so the U
CRT26/8.11.2023/JC 5 HCCC 181/2023(1)/Sentence
V V
A condition affected the punishment that was just in all the A
circumstances, and denunciation was thus likely to be a
relevant sentencing objective. The other, amongst the
B others, was whether specific deterrence was to be moderated B
or eliminated as a sentencing consideration. Likewise,
dependent on nature and severity of the symptoms of the
C C
condition exhibited by the offender and the effect of the
condition on the mental capacity of the offender, whether at
D the time of the offending or the date of sentence was heard. D
Mr Fung has boldly suggested a term of imprisonment of
E approximately 5 to 6 years’ imprisonment for this defendant. E
As noted earlier, there is no tariff in this case, however
it is a term which is similar as was given in the case of
F F
Fan Tak Wan [2007] 5 HKC 50 which is the committal bundle.
G In that case, the applicant had pleaded guilty to one count G
of wounding his wife with intent. He attacked his wife
whilst she was asleep using a kitchen chopper to deliver
H multiple blows to her head, face, hands, and right arm. The H
applicant said they had been in a marital discord and his
I
wife demanded they divorced. The trigger for the attack was I
that earlier in the same day, the applicant begged his wife
not to divorce but she denigrated him.
J J
The wife suffered multiple chop wounds over her face and had
deep chop wounds over both hands with the bone and tendons
K exposed. The tip of her right thumb had been amputated. K
She also had a fractured skull. Her wounds had subsequently
L healed. The couple had become reconciled and wished to L
resume life together whilst the wife had also forgiven the
applicant.
M M
The court held that a starting point of 6 years’
imprisonment was correct but the weight to be given to the
N element of forgiveness by the victim of a wounding with N
intent was lessened the more serious the nature of the
O injury was. O
In this case, I must consider what is the most appropriate
P term of imprisonment. It is of no doubt that the offence P
the defendant has committed is a grave offence to which his
son was seriously wounded, although the wounds have now
Q Q
healed.
R The defendant is 74 years of age, 73 at the time of the R
commission of this offence and has a clear record. This
shows that it was out of character. It is clear to me that
S sadly had the son been diagnosed prior to the date of the S
offence, the defendant might have understood or realised why
the son’s behaviour was so bizarre for so many years.
T T
It is never too late to be diagnosed with a mental illness
U as was the son after the offence, but maybe and it would U
CRT26/8.11.2023/JC 6 HCCC 181/2023(1)/Sentence
V V
A appear that due to the circumstances after the defendant had A
a stroke and not being able to release the stress and
tension caused by the conflict of the son as a result of the
B pandemic, this offence sadly occurred. This tension between B
them might have been avoided had the son been diagnosed at a
very early age.
C C
At the time of the offence, the defendant was suffering from
D a mental illness. I take all these factors into account D
when considering an appropriate starting point. Clearly,
the defendant’s mental illness played a part in the
E commission of this offence. E
Taking into account all the factors as I have expressed, I
F F
consider an appropriate starting point to be one of 6 years’
imprisonment. Although Mr Fung has stated the son has
G forgiven his father, it is apparent from the probation G
officer’s report at paragraph 6 that the son only says he
does not hold any resentment against his father. I do not
H consider this to be forgiveness, but in any event given the H
gravity of the offence, even if it was forgiveness, I do not
I
attach any weight to that to reduce the sentence any I
further.
J The strongest mitigating factor is your plea of guilty at J
the earliest opportunity and for that, defendant, you shall
be awarded the one-third discount. In the circumstances,
K you defendant are sentenced to serve 4 years’ imprisonment. K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/8.11.2023/JC 7 HCCC 181/2023(1)/Sentence
V V
A HCCC 181/2023 A
[2023] HKCFI 3124
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 181 OF 2023
D ----------------- D
HKSAR
E E
v
F F
Yu Kwan-man
G ----------------- G
Before: Hon D’Almada Remedios J
H Date: 8 November 2023 at 2.36 pm H
Present: Mr Isaac Guan, SPP of the Department of Justice, for
I
HKSAR I
Mr Keith Fung, instructed by Solomon C Chong & Co,
assigned by DLA, for the accused
J Offence: Wounding with intent (有意圖而傷人) J
---------------------------------
K K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: Defendant, on 10 July 2023, you pleaded guilty before a
M magistrate at the Eastern Magistracy to a charge of wounding M
with intent, contrary to section 17(a) of the Offences
Against the Person Ordinance, Chapter 212. At the same
N N
time, you also admitted a Summary of Facts. As a result of
your plea of guilty, you were committed here to the Court of
O First Instance for sentence. O
The charge to which you pleaded guilty to sets out that on
P 24 April 2022, at your home in King Wing House, Shan King P
Estate, New Territories, in Hong Kong, you unlawfully and
maliciously wounded Yu Ho-kee, with intent to do him
Q Q
grievous bodily harm. You are the father of Yu Ho-kee, your
son was aged 39 at the time.
R R
At the material times, you, your wife, and your son and his
wife resided at the home at King Wing House. Your
S relationship with your son was not a good one. You often S
had disputes and quarrels and these kept increasing over the
T
years. T
On the date of this offence, at around 9 am, after your son
U had woken up, he had pulled open the door of the cabinet and U
CRT26/8.11.2023/JC 1 HCCC 181/2023(1)/Sentence
V V
A accidentally hit the television placed on the cabinet. Upon A
seeing that, you immediately blamed him and asked him if he
intended to smash the television. A quarrel then ensued.
B B
You became agitated and grabbed a round stool. Fearing that
you would hit your son with the stool, your son snatched the
C C
stool away immediately. Your son forced you into the
kitchen and you then suddenly grabbed a chopper and chopped
D your son. Your son defended himself from the chopping with D
his right arm. Nevertheless, he was unable to do so and you
then chopped his forehead.
E E
Your son had suffered multiple chop wounds over his head,
his arm, his hand, and received deep to the bone wounds and
F F
deep into the muscle wounds. Your son also incurred a
fractured skull as a result of you chopping him.
G G
Your son was hospitalised for about 10 days thereafter and
had during his admittance in the hospital had surgery. The
H follow-up on 25 May 2022 found that your son’s wounds had H
healed well with no signs of infection. The left elbow
I
range of motion was from 5 degrees to 100 degrees and he has I
had to receive further rehabilitation.
J At the time of the offence, the police were called. You J
were arrested for the offence of wounding. Under caution,
you immediately admitted that you chopped Yu Ho-kee with the
K knife but you said you did this out of impulse. K
L It is clear from the facts of this case that after you had L
realised the seriousness of injuries that you had caused to
your son, you told your wife to immediately call the police.
M In the Summary of Facts, it states that your relationship M
with your son has been poor for years.
N You are now 74 years of age, educated up to Form 3. You N
were originally a plastic factory worker and then worked as
O a security guard. You are a man of clear record. You are O
married and have two sons, the victim of this charge being
your youngest son.
P P
Your counsel, Mr Keith Fung, had on the first appearance
before this court when you came up for sentence on
Q Q
18 October 2023, submitted to this court as he has done
today that you and your family appreciate that you have a
R mental problem or illness and you yourself were of the R
opinion that a hospital order would help you to recover from
your mental illness.
S S
As at 18 October, I had had before me four psychiatric
reports which were called for at the magistracy. They were
T T
the first lot, that is two reports, were written in June
2022. In those reports, the psychiatrists Dr Jane So and Dr
U Lydia Lam had both recommended a hospital order for U
CRT26/8.11.2023/JC 2 HCCC 181/2023(1)/Sentence
V V
A 3 months. At that time, you were remanded at the Siu Lam A
Psychiatric Centre.
B In January 2023, the magistrate called for a further two B
reports, those two reports also by Dr Jane So, but this time
by another visiting psychiatrist Dr Lin Hiu-yu, were of the
C C
opinion that you were mentally fit to plead and that further
psychiatric care was required for your condition.
D D
So by the time this case came up for sentence some nine
months later, I called for updated psychiatric reporst again
E from two psychiatrists, given your mental condition. The E
reports I received were dated 30 October 2023, again by Dr
Jane So and this time by another visiting psychiatrist, Dr
F F
Lau Hoi-ki compiled the reports. The psychiatric reports
maintained that you are mentally fit to plead. However,
G those reports state that further compulsory in-patient G
treatment is not recommended and that out-patient follow-up
treatment is recommended for monitoring your condition.
H H
As Mr Fung correctly states today, the psychiatrists are no
I
longer recommending or suggesting a hospital order, despite I
the fact that you, yourself think you require assistance and
treatment through medical care and an hospital order.
J J
On 18 October, apart from seeking two further psychiatric
reports, I also called for a background report. I shall
K return to the probation officer and that background report K
later in my sentence.
L L
As Mr Fung has correctly conceded, the offence to which you
have pleaded guilty to is a very serious offence because the
M offence contains the ingredient that you, the offender, M
intended to inflict really serious injury at the time of the
offence. However, sentencing in relation to section 17,
N wounding with intent, is very much case specific and there N
is no tariff as such. Sentences generally range between
O 3 to 12 years’ imprisonment as can be seen in Cross and O
Cheung, 10th Edition, page 874.
P Very shortly after the commission of this offence, P
defendant, you were admitted into Castle Peak Hospital. You
were observed to have depressive and psychotic symptoms.
Q Q
Shortly after that, you were moved to the Siu Lam
Psychiatric Centre. Since then, for the last 17-odd months,
R you have been treated for your mental condition at Siu Lam R
Psychiatric Centre.
S The psychiatrist who examined you shortly after the S
commission of the offence diagnosed you as suffering from
severe depressive episode with psychotic symptoms at the
T T
time of the offence.
U U
CRT26/8.11.2023/JC 3 HCCC 181/2023(1)/Sentence
V V
A You have had no family history of mental illness and you A
were not known to the Mental Health Service prior to your
commission of the present offence. You had reported to the
B psychiatrist that your mental state was stable in the past B
until you had a stroke in 2012, after which you easily
became irritable over trivial matters.
C C
You also had frequent conflicts with your younger son, the
D victim, who lived at home regarding your son’s bizarre D
behaviour. You felt frustrated at your son’s behaviour at
home which led to frequent complaints from your neighbours.
E During the pandemic, your mood further worsened. You had E
increased difficulty in controlling your temper. You
experienced pervasive depressed mood, reduced energy level,
F F
poor sleep, and reduced appetite.
G Prior to this, you had coped with the stress by hiking but G
you were unable to hike as frequently and often had to stay
at home due to the pandemic.
H H
As can be seen from the background report submitted by the
I
probation officer at paragraph 5, after she had interviewed I
your younger son, your wife, and your elder son, the victim
in this case has started manifesting bizarre behaviours when
J he completed Secondary 3. At the time, your son denied J
having any problems and refused to see a doctor. After the
events of this case, your son was assessed to be suffering
K from obsessive compulsive disorder with autistic features K
and was required to attend follow-up at the Tuen Mun Mental
L Health Centre. L
According to your wife, your son now takes psychiatric drugs
M daily and has improved with drug compliance. Your son is M
also assisted by his older brother. Your son is receiving
assistance from other organisations and it appears with
N medical treatment and community support, your son has N
achieved progress and his bizarre behaviours were reduced
O significantly. O
Your son himself has said that the psychiatric treatment on
P his condition has been effective and has improved his P
behaviour greatly. He now no longer slammed the doors and
he washed his hands less frequently. Twas confirmed by
Q Q
your wife. Since the conflict used to arise from his
bizarre behaviours, your son believed that his progress can
R avoid the discontent between yourself and him and avoid R
conflicts. Your son has showed confidence that he will have
a better mental state with the assistance of his treatment.
S S
It is clear to me from the reports that at the time you
committed this offence, you were diagnosed with a
T T
significant mental illness. The attack on your son occurred
after an incident of him again slamming doors and a quarrel
U ensued between yourself and him. U
CRT26/8.11.2023/JC 4 HCCC 181/2023(1)/Sentence
V V
A A
The psychiatrist has confirmed that right before you had
chopped your son, you had heard voices asking you to chop
B your son. The psychiatrists have also stated that prior to B
you chopping your son, in the months prior to that you had
sometimes heard voices commenting that life was unfair and
C C
that you should chop him.
D As Mr Fung has correctly pointed out, now that the two D
psychiatrists do not recommend a hospital order, the most
appropriate sentence in this case, given the gravity of the
E offence, is one only of imprisonment. In sentencing you, I E
must take into account that you had suffered from a mental
illness which played a part in the commission of this
F F
offence. The Court of Appeal held in HKSAR v Chiu Peng
[2002] 1 HKLRD 185, that the court could properly allow a
G discount to the sentence to reflect the diminished G
criminality or culpability.
H The court applied the case of Parnis v R [1944] 126 ALR 423. H
In Chiu Peng, the Court of Appeal allowed a discount of 6
I
months’ imprisonment as the accused had committed the crime I
under an abnormal state of mind. In other words, the
accused knew that it was wrong to commit the crime but did
J not appreciate that the commission was as serious as it was, J
therefore the degree of culpability was thus lessened.
K Appearing before me today on behalf of the prosecution is K
Mr Isaac Guan, prior to his appearance was former Senior
L Public Prosecutor, Ms Grace Chan who I am informed has since L
retired. On 17 October, she submitted additional sentencing
authorities that the court consider in relation to
M sentencing accused with mental disorders. They were Parnis M
v R [1993] 49 FCR 304, R v Tsiaras [1996] 1 VR 398, R v
Wiskich [2000] SASC 64, HKSAR v Chiu Peng [2002] 1 HKLRD
N 186, R v Tsui Mei Ying [2002] 4 HKC 689, R v George [2004] N
149 A Crim R 38 and R v Verdins [2007] 16 VR 269.
O O
The court has considered all of these cases but the
principle really as stated in Verdins to which the Hong Kong
P courts have had regard to, and have referred to in Chiu Peng P
held that whereas general deterrence is a relevant
consideration, in every sentencing exercise it is a
Q Q
consideration to which less weight should be given in the
case of an offender suffering from mental disorder or
R intellectual handicap. R
In the case of Verdins, in the Australian Court of Appeal,
S they held impaired mental functioning, whether temporary or S
permanent, was relevant to sentencing in at least the two
following ways amongst others that the court therein held.
T T
The first was the condition that reduced the moral
culpability of the offending conduct as distinct from the
U offender’s legal responsibility, where that was so the U
CRT26/8.11.2023/JC 5 HCCC 181/2023(1)/Sentence
V V
A condition affected the punishment that was just in all the A
circumstances, and denunciation was thus likely to be a
relevant sentencing objective. The other, amongst the
B others, was whether specific deterrence was to be moderated B
or eliminated as a sentencing consideration. Likewise,
dependent on nature and severity of the symptoms of the
C C
condition exhibited by the offender and the effect of the
condition on the mental capacity of the offender, whether at
D the time of the offending or the date of sentence was heard. D
Mr Fung has boldly suggested a term of imprisonment of
E approximately 5 to 6 years’ imprisonment for this defendant. E
As noted earlier, there is no tariff in this case, however
it is a term which is similar as was given in the case of
F F
Fan Tak Wan [2007] 5 HKC 50 which is the committal bundle.
G In that case, the applicant had pleaded guilty to one count G
of wounding his wife with intent. He attacked his wife
whilst she was asleep using a kitchen chopper to deliver
H multiple blows to her head, face, hands, and right arm. The H
applicant said they had been in a marital discord and his
I
wife demanded they divorced. The trigger for the attack was I
that earlier in the same day, the applicant begged his wife
not to divorce but she denigrated him.
J J
The wife suffered multiple chop wounds over her face and had
deep chop wounds over both hands with the bone and tendons
K exposed. The tip of her right thumb had been amputated. K
She also had a fractured skull. Her wounds had subsequently
L healed. The couple had become reconciled and wished to L
resume life together whilst the wife had also forgiven the
applicant.
M M
The court held that a starting point of 6 years’
imprisonment was correct but the weight to be given to the
N element of forgiveness by the victim of a wounding with N
intent was lessened the more serious the nature of the
O injury was. O
In this case, I must consider what is the most appropriate
P term of imprisonment. It is of no doubt that the offence P
the defendant has committed is a grave offence to which his
son was seriously wounded, although the wounds have now
Q Q
healed.
R The defendant is 74 years of age, 73 at the time of the R
commission of this offence and has a clear record. This
shows that it was out of character. It is clear to me that
S sadly had the son been diagnosed prior to the date of the S
offence, the defendant might have understood or realised why
the son’s behaviour was so bizarre for so many years.
T T
It is never too late to be diagnosed with a mental illness
U as was the son after the offence, but maybe and it would U
CRT26/8.11.2023/JC 6 HCCC 181/2023(1)/Sentence
V V
A appear that due to the circumstances after the defendant had A
a stroke and not being able to release the stress and
tension caused by the conflict of the son as a result of the
B pandemic, this offence sadly occurred. This tension between B
them might have been avoided had the son been diagnosed at a
very early age.
C C
At the time of the offence, the defendant was suffering from
D a mental illness. I take all these factors into account D
when considering an appropriate starting point. Clearly,
the defendant’s mental illness played a part in the
E commission of this offence. E
Taking into account all the factors as I have expressed, I
F F
consider an appropriate starting point to be one of 6 years’
imprisonment. Although Mr Fung has stated the son has
G forgiven his father, it is apparent from the probation G
officer’s report at paragraph 6 that the son only says he
does not hold any resentment against his father. I do not
H consider this to be forgiveness, but in any event given the H
gravity of the offence, even if it was forgiveness, I do not
I
attach any weight to that to reduce the sentence any I
further.
J The strongest mitigating factor is your plea of guilty at J
the earliest opportunity and for that, defendant, you shall
be awarded the one-third discount. In the circumstances,
K you defendant are sentenced to serve 4 years’ imprisonment. K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT26/8.11.2023/JC 7 HCCC 181/2023(1)/Sentence
V V