A A
HCCC 45/2014
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C COURT OF FIRST INSTANCE C
CRIMINAL CASE NO 45 OF 2014
D D
----------------------
E HKSAR E
v
F F
WONG Po-chu
G G
----------------------
H Before: DHCJ Stuart-Moore H
Date: 26 October 2015 at 10.24 am
Present: Mr Michael Arthur, on fiat, for HKSHAR
I Mr Arthur Luk and Mr Cheung Yin-leung, instructed by I
Louis K Y Pau & Co, assigned by DLA, for the defendant
J
Offence: (1) Attempted murder (企圖謀殺) J
(2) Exposing a child in a manner likely to cause
injury to health (遺棄兒童，其方式相當可能導致健康損害)
K K
---------------------------------
Transcript of the Audio Recording
L L
of the Sentence in the above Case
---------------------------------
M M
COURT: This is a very distressing case. Quite rightly, the
original charge of attempted murder was not pursued. This
N was never an attempted murder. What the defendant did was N
to attempt to commit suicide by burning charcoal in her flat
but, in doing so, she exposed her son, who was then 9 years’
O O
old, in a manner which was likely to cause injury to his
health. Fortunately, he woke up and raised the alarm and in
P doing so, he very probably saved his mother’s life. P
I have been provided with a large number of reports from
Q medical and social welfare sources as well as most recently, Q
a probation report. Miss Cheung Suk-king is a government
social worker whose most helpful report provides a very
R R
detailed background about the defendant and the sad
circumstances in which she found herself, leading up to this
S offence. S
When the defendant went to Siu Lam Psychiatric Centre after
T her arrest, she was seen by Dr C Y Liu, Amy, who, on 18 July T
2013, diagnosed the defendant as suffering from recurrent
depressive disorder with a currently moderate to severe
U U
depressive episode and with a significant risk of self harm.
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A A
Importantly, she added that there were no psychotic
symptoms.
B B
What had driven the defendant to this state was a
combination of circumstances which are fully set out in the
C C
statements and reports before me. Essentially, she had been
married to a man who later developed schizophrenia and who
D had repeatedly threatened her physically and verbally. D
In 2011, she divorced her husband after nearly 10 years of
E marriage but by this stage, she was so filled with E
nightmares and bad memories that she never went back to the
matrimonial home until the day of this incident; instead,
F she stayed with her brother. But on 5 July 2013, she went F
back to the matrimonial home where she tried to commit
G suicide. G
In addition to the problem she had with her ex-husband, her
H son also had serious behavioural difficulties as he was H
mildly autistic, and in practice, what that means is that he
was subject to mood swings, including suicidal thoughts,
I severe temper outbursts over very trivial matters and he I
would scream and shout and throw objects and even assault
J others during these tantrums. J
From the details of what the defendant had to put up with in
K her daily life, it is no wonder that she reached the depths K
of depression. She herself described some of her inner
feelings in her interviews with the police. I am going to
L quote from page 304 of the papers in this case, where she L
said this: “I want to explain that I really did not intend
M
to kill my son”. M
At 99, that is Counter 99 in the interview:
N N
“I was probably out of my mind momentarily. In fact,
at that time, I was really naïve on that day, after I
O had poured the charcoal, I thought I would definitely O
die. At that time, I was afraid that something would
happen to my son and I even held my son in my arms and
P P
pressed his face against my chest. In fact, at that
moment, I, myself, did think about dying. I thought
Q about committing suicide because I had no way out. I Q
did not know what I could do. In the past, every day I
had heard my son saying that he was very upset. After
R hearing that, I was very upset too. I could understand R
why he was unhappy but I could not comfort him and
relieve his sadness. Sometimes, no matter how long I
S S
spent persuading him, he was just unwilling. I mean,
to be frank, I actually wanted to comfort him but I
T could not help him at all. I felt that I was really T
useless, my existence in this world, sometimes I feel I
am a burden to myself and to the others, even my son.
U I have burdened everyone around me so I am -- I think I U
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A A
am what others call ‘the cursed person’ and that means
whoever gets close to me would...”
B B
And then she stopped and said:
C C
“So I was really upset at that moment, very upset, I
was crying all along.”
D D
And at 109, lastly, in this section of the interview that I
purpose to read:
E E
“I did not mean to harm my son, I just want my son to
stay healthy and happy and that’s all.”
F F
And she went on to say:
G G
“I’ve been unhappy in my whole life because I’ve been
suffering for many years. For example, when his father
H went mad, his family said that I was the one to blame H
and I felt guilty too. I didn’t want that to happen,
how could I expect that my husband would go mad? And
I likewise, you...” I
And she was talking about the police -
J J
“...are now saying that I intended to kill my son. Why
K would I kill my son? You can ask my son how much I K
love him. When he is sick, when my son is sick, I can
stay with him round the clock, for 24 hours, side by
L side. Anyway, my life is not important but my son is L
very important. I do everything for my son’s goodness
sake. For my son’s interest, that means in order that
M M
the divorce between his father and I would not affect
my son, I let him continue with everything. I send him
N to school every morning, even if I am sick, I get up N
every morning. I always ask him to sleep as and when I
am back from work. In the morning, I would cook his
O breakfast and send him to school. Why would I harm my O
son? I do not know what I can do.”
P P
And that gives an insight to see how she was at the time
when this all happened.
Q Q
Now, after the defendant came under the care of Dr Amy Liu
in Siu Lam Psychiatric Centre, she responded well to
R medication. Eventually, she was recommended for out-patient R
treatment at the Tuen Mun Psychiatric Centre.
S Eventually, on 19 December last year, 2014, she was given S
bail and since then, reading from Dr Silvia Chen’s report
dated 22 September this year, matters have progressed
T T
extremely well to the extent that she has been able to
resume her previous work as a cashier at a bakery where she
U has been employed since 2001, with the exception of those U
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A A
months in custody while she was being treated at Siu Lam.
She works at the bakery six days a week and her employer has
B been really supportive and I can see from the reports that B
the defendant herself is appreciative of that. She also
gets on very well with other members of staff.
C C
As for her son, he has been staying at a children’s home
D where the defendant regularly would visit him. He also has D
been receiving psychiatric help and with this, he has been
able to settle down at school and there has been a general
E improvement of his behaviour and this has enabled the E
defendant to rebuild her relationship with her son.
F She will soon be able to move into an address that she has F
been allocated by the people responsible for housing in a
G public housing unit and there is little doubt that she is G
looking forward to being able to share that address with her
son, once she is able to do so.
H H
The defendant has been regularly attending psychiatric
sessions in an out-patient clinic in the Castle Peak
I Hospital. She has also had monthly sessions with a clinical I
psychologist and is in regular contact with the community
J psychiatric nurse. In addition, she has been seeing J
Dr Chen, Silvia Chen that is, punctually, every six to eight
weeks since the very first visit that she made to that
K doctor the day after she was given bail. K
What is the present position so far as Dr Chen is concerned?
L What she says in her report is that the defendant is now L
entirely free from any mental symptoms. In short, in other
M
words, this is one of those rare cases at this court where M
there is a happy ending. The defendant is lucky enough to
have a supportive family, a supportive employer and
N supportive friends and she is now well on the way to N
improving her relationship with her son.
O And so it is my pleasant duty, first of all, to enter a O
verdict of not guilty on the 1st count of the indictment,
under the provisions of section 51A of the Criminal
P P
Procedure Ordinance, Cap 221.
Q I have said it before and I am going to say it again so as Q
to emphasis the point. This was never an attempted murder.
The defendant’s actions were carried out at a time when her
R mind was filled with problems beyond most people’s R
imagination. She is well again now and it is to be expected
that the defendant will stay that way.
S S
On the last occasion, I adjourned the case in order to
T obtain a probation report, and to find out in particular if T
this defendant was a suitable candidate for a Probation
Order. I have now had the benefit of reading a lengthy
U report prepared by Miss Au Yeung Wing-yee and I am extremely U
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A A
grateful for the report that she has prepared. She speaks
in the report of the genuine insight that the defendant has
B to her emotional problems of the past and she confirms the B
good progress in rehabilitation that other medical witnesses
have also spoken about.
C C
Madam Wong, I am told by Miss Au-Yeung that you have also
D helped your son in mending some of his behavioural problems. D
The probation officer has stated that she can recommend you
for probation on three conditions. The conditions are that
E you should work and reside as directed, that you will E
participate in counselling groups and other programmes as
directed and receive psychological or psychiatric treatment
F F
as and when directed.
G None of those conditions is new to you. You have been co- G
operating with the medical people that you are seeing and
you have been working. I have no doubt about that. I take
H the view it would be appropriate in your case to impose a H
Probation Order as I think you need as much support at this
time as possible. And I also think that it should be
I I
coupled with the three conditions referred to by the
probation officer.
J J
However, before I can impose a Probation Order, I need your
consent because a Probation Order means that you will need
K to comply with the probation officer’s requirements. She K
may, from time to time, visit you or you may be required to
visit her, and I am required by law to warn you that if you
L were to breach probation by committing some other offence or L
by failing to comply with any request made by the probation
M officer, you could be brought back to court and dealt with M
for this offence.
N I hasten to add, I do not think for one moment that anything N
of that kind will happen. You have been entirely co-
operative since your arrest and you have shown yourself
O eager to live a normal life once more. O
So would you stand please. Are you prepared to be placed on
P P
probation on the conditions I have referred to?
Q ACCUSED: Yes, I am willing. Q
COURT: All right. Then in those circumstances, Madam Wong, I
R am going to make a Probation Order for 2 years and that will R
be coupled with the three conditions that I have referred
to. And to spell it out for the purposes of the order, the
S conditions are that you shall work and reside as directed; S
you will participate in counselling groups and programmes as
T directed; and shall receive psychological and/or psychiatric T
treatment as and when directed.
U U
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A A
Madam Wong, I have great confidence that all will be well
with you. Please do not let me down because by letting me
B down, you will be letting down all those friends and family B
that you have, who have been giving you all this support.
Do you understand?
C C
ACCUSED: Yes, I do.
D D
COURT: All right. Then that is all and the case now is at an
end and I wish you well. But do you have some property
E downstairs? E
MR LUK: No, she is on bail.
F F
COURT: Is there any property that she had...
G MR LUK: Except bail money, bail money. G
H
COURT: What? Bail money? H
MR LUK: She is on bail.
I I
COURT: So where is that?
J MR LUK: I think she deposited a sum - yes, she deposited a sum J
of...
K COURT: All right, well, you can make inquires about that so K
that she gets it back.
L L
MR LUK: Yes, apart from that, there is no...
M COURT: Nothing else. M
MR LUK: ...no other property...
N N
COURT: All right.
O MR LUK: ...lodged with the court. O
COURT: All right. Madam Wong, if you would like to go and --
P you can leave the dock now, it’s all over. P
COURT: But I do have some rather important comments, as I
Q Q
mentioned last night, to make about this case. I gave you
an opportunity to think about what I was saying. I was
R horrified to see that the interview was conducted by two R
male officers with no female officer present.
S MR ARTHUR: Yes, indeed. S
COURT: Especially as I think you’ve told me there was a female
T officer but she left as soon as the interview started. T
U U
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A A
MR ARTHUR: Yes, that’s right. I have conveyed very clearly, I
believe, your concerns to the police and I believe they
B understood it and I am provided with a document - we’ll call B
it a document - which sets out the timeline for the handling
of the defendant - and I will give this to your Lordship.
C C
The only important thing there, I suggest, is that they
sought a clearance from the doctor before they interviewed
D her. D
COURT: Yes, I saw all that.
E E
MR ARTHUR: That’s not your Lordship’s point, I know that.
F COURT: That is not my point at all. At the beginning of this F
interview, it says A and B, two male officers, are present.
G G
MR ARTHUR: Yes, yes.
H COURT: The defendant is C and then D, Tong Ka-man, Photographer H
of Identification Bureau. And you tell me she is a woman,
and she left as soon as the interview started. Why?
I I
MR ARTHUR: If you look at that document I have given you,
ignore the timeline, at the bottom are two bullet points.
J Now, I have read... J
COURT: There are no directions as to how women...
K K
MR ARTHUR: That’s what I’m told and I have been back to the
L police, having received those, having those two points made L
because I knew, and I know, that your Lordship is concerned
about that, and that is the police’s position. It’s not the
M OC case’s position, that is being considered at a senior M
level and...
N COURT: I can understand if it is not practical to get a woman N
officer present for some reason or another.
O O
MR ARTHUR: Yes.
P COURT: But when there was actually one on the scene... P
MR ARTHUR: Yes.
Q Q
COURT: ...it’s unbelievable that she should be sent out of the
room just at the moment the interview begins.
R R
MR ARTHUR: Yes.
S S
COURT: All right, well, I notice there are no directions so...
T MR ARTHUR: No directions. T
COURT: If there are no directions, there need to be.
U U
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A A
MR ARTHUR: Yes. There are two other matters which were
concerning.
B B
COURT: Yes.
C MR ARTHUR: Your Lordship, one was the Pol.154 and the pre- C
amble...
D D
COURT: Yes.
E MR ARTHUR: ...to that with repetition inserted by the E
statement-taker in the final paragraph.
F COURT: Yes. F
MR ARTHUR: And the police concede that they did not conform
G with their own police procedures manual, and I think that... G
COURT: It’s not just this case, somebody’s sent out a word...
H H
MR ARTHUR: Right.
I I
COURT: ...saying you’ve got to repeat this, because I’ve got --
case after case it’s been happening, and I think somebody
J has sent out a memo or something to every police station J
saying you’ve got to repeat it.
K MR ARTHUR: Yes, yes. K
COURT: It’s not coincidence.
L L
MR ARTHUR: No, well, there it is, the officers in this case
M concede that and it’s to be anticipated that it won’t happen M
again here. The second -- the third matter that your
Lordship was concerned about was this declaration which
N appears in relation to the criminal records, and the police N
again concede that that was wrong.
O COURT: See, all we have to do is draw up a piece of paper. O
MR ARTHUR: Yes.
P P
COURT: If they’ve got to have a data protection thing anyway -
Q I don’t know why they do but they do - so they put that at Q
the top of a piece of paper, all the names of the witnesses,
and all they have to do is initial that they’ve been read
R the terms of the data protection, nothing to do with the R
witness statement at all, just a piece of paper on a file.
S MR ARTHUR: Well, the force procedures manual says if there’s to S
be a declaration, it should be on a separate sheet of paper
T but it should only be for those people who do have criminal T
records.
U COURT: Of course. U
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A A
MR ARTHUR: Not many pathologists, and that was the example that
your Lordship gave, fall into that category. So there it
B is, those maters have been brought home to the police. B
COURT: All right. Well, I am going to say something about it
C C
so that they’re not just words in the wind, and we can send
it to the Director of Public Prosecutions who ought to know
D about it. D
There is an important matter which I have raised with
E Mr Arthur and alerted him to the fact that I would be E
raising it today and I am grateful to him for his research
into the three aspects that I want to raise now.
F F
The defendant in this case was, as everyone recognises, in a
G
very disturbed state of mind at the time of her arrest. She G
was taken to hospital after she had attempted to commit
suicide and within a day of her arrest, she was fit enough
H to be interviewed with the permission of the doctors, but H
when this took place - and in fact, there were two
interviews at the hospital where she was being treated - on
I 7 July 2013, two officers, both of them male, were present. I
There was no woman officer present.
J J
What makes this slightly worse is that there was a female
officer available, referred to as ‘D’ at the heading of each
K interview, but she did not remain for the interviews K
themselves. In other words, she was available and present,
but as soon as the interviews began, she had left the room.
L L
Now, Mr Arthur has informed me today that there are no rules
or directions regarding the handling of an arrested female
M M
in the circumstances as pertained to this case.
Specifically, there is no direction that she should have
N been handled by a female officer. N
The second thing he has told me, again I quote: “The
O defendant was the arrested person of an attempted murder O
case, a serious and violent crime, the use of a male officer
to interview the defendant was appropriate and in line with
P P
police procedures”.
Q Yes, this was a serious investigation of a very troubled Q
lady. I find it very difficult, whether there are
directions or not, to understand why police did not see fit
R to at least keep a woman police officer present at the R
interview; whether she played a direct part in the
questioning is another matter.
S S
I understand completely that there is no complaint of any
kind raised against the officers in this case who conducted
T T
the interviews. But it should, as a matter of principle,
surely be force policy to have a woman police officer
U present when a female prisoner is being interviewed, U
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A A
whenever this is practicable. Sometimes it may not be, but
if it is possible to have a woman officer present during
B serious investigations of woman defendants, that must be B
preferable.
C C
In this case, it is especially important because here the
defendant was highly distressed. She was in mental turmoil
D following a suicide attempt and, accordingly, it is D
unfortunate, to put it mildly, that a female officer wasn’t
at least present while she was being questioned.
E E
Now, I feel that some kind of advice to this effect should
be given by the Department of Justice to police stations
F throughout Hong Kong. It seems that there are no guidelines F
at all, up to now, which is unfortunate. In the absence of
G guidelines, the Department of Justice should surely issue G
some so that this kind of incident doesn’t occur again.
H The second matter of concern is this. The data protection H
certificate attached to every statement, practically, by
witnesses made in cases these days - the waste of paper
I involved is one thing - but it’s completely unnecessary. I
It’s not part of a witness statement. It seems that there
J is some false notion that a data protection certificate has J
to be attached to every witness statement taken by the
police. I want to make this quite plain, there is no
K witness statement, whether the person has a criminal record K
or not, which ever needs to have such a certificate attached
to the statement.
L L
If the police feel they need to cover themselves, all they
M
need to do is to print out a form with the certificate M
written at the top and to get any witness who has a criminal
record to initial the form to show that they’ve read the
N data protection certificate. That’s all. Not on their N
statement but in a separate piece of paper.
O I just want to take an example of what landed on my desk on O
Friday in a case that hasn’t yet been heard - it doesn’t
matter because there’s nothing prejudicial to the case that
P P
I am going to say - but it’s a statement by a pathologist in
a criminal case with the number 183/2013. The pathologist
Q is well known in these courts, he is an extremely capable Q
witness and I think it could be taken without being said
that he has no record.
R R
How does the record -- how does the statement finish? “I
have been told” - I read from his statement directly and I
S S
don’t leave out any words - “I have been told that my
criminal record, kept by the Commissioner of Police, in
T accordance with the Police Force Ordinance, chapter 232, T
Laws of Hong Kong, may be disclosed to the defence in
criminal proceeding in future”. Can you imagine what a
U U
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A A
jury would think when they heard that? It can only mean
that he has got a record.
B B
And in the last case that Mr Luk appeared in front of me,
just a few weeks ago, he was actually proposing to read a
C C
similar statement to that to the jury, of a witness who
again, I think, was a pathologist, being read under the
D provisions which enable the jury to hear the witness’s D
evidence without actually calling the witness. But I had to
stop him before he did because the jury would have thought
E exactly that, “Oh, a pathologist with a criminal record”. E
Many, many other statements have got the same error and it
has got to stop. The declaration is quite unnecessary.
F F
In this case, a similar sort of declaration, I’ve got a list
G of Dr Wong at page 136, the pathologist, Dr Lam, Dr Y Poon, G
Dr J Poon, the housing officer, Miss Eva Leung, the
ambulance man, Chung Wai-lun, another ambulance man, Cheung
H Sze-lok and there are other witnesses as well, just to take H
the example of some in this present case. It’s perfectly
apparent that that wholly unnecessary paragraph is the
I I
result of some misguided advice that must have been given to
the police, presumably by the Department of Justice.
J J
It’s not just this case or a few cases, it’s all the cases I
have handled recently, have all got the same mistake. And
K as I say, it also adds colossally to the waste of paper K
because very often these certificates are on a separate
piece of paper attached to the statement. I had actually
L made this clear in previous cases but it’s perfectly obvious L
that they are just words thrown away in the wind because the
M practice hasn’t stopped and the advice has been ignored. M
The other matter is very simple, and as Mr Arthur has
N rightly said this morning, it is obviously a mistake, but N
again, it happens in so many cases that somebody has
obviously sent the word out that the statutory declaration
O at the start of every witness statement must be repeated at O
the end of the statement.
P P
That statutory declaration is: “I am willing to make a
statement to the police. The statement I am about to make
Q is true to the best of my knowledge and belief and I make it Q
known that if I have wilfully stated anything which I know
to be false, or do not believe to be true, I may liable to
R prosecution for a criminal offence”. R
Well, it has been repeated at the end of every statement as
S S
well and it doesn’t need to be, and as Mr Arthur has said,
he accepts that that is so. But it would be helpful if the
T Department of Justice, again, could issue a directive to all T
police stations in Hong Kong to make sure that this mistake
is not repeated. It’s just additional work and it’s a waste
U U
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A A
of time for the witness to have to write this out all over
again.
B B
Mr Arthur, I know that these words will be lost in the wind
if I don’t ask for a transcript.
C C
MR ARTHUR: Yes.
D D
COURT: And if you would make sure it gets to the Director of
Public Prosecutions...
E E
MR ARTHUR: I will undertake to do that.
F COURT: ...once I’ve got it. F
MR ARTHUR: Yes, I will undertake to do that.
G G
COURT: Thank you very much, thank you. All right. Yes,
there’s nothing else, is there?
H H
Court adjourns - 11.07 am
I 26 October 2015 I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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A A
HCCC 45/2014
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C COURT OF FIRST INSTANCE C
CRIMINAL CASE NO 45 OF 2014
D D
----------------------
E HKSAR E
v
F F
WONG Po-chu
G G
----------------------
H Before: DHCJ Stuart-Moore H
Date: 26 October 2015 at 10.24 am
Present: Mr Michael Arthur, on fiat, for HKSHAR
I Mr Arthur Luk and Mr Cheung Yin-leung, instructed by I
Louis K Y Pau & Co, assigned by DLA, for the defendant
J
Offence: (1) Attempted murder (企圖謀殺) J
(2) Exposing a child in a manner likely to cause
injury to health (遺棄兒童，其方式相當可能導致健康損害)
K K
---------------------------------
Transcript of the Audio Recording
L L
of the Sentence in the above Case
---------------------------------
M M
COURT: This is a very distressing case. Quite rightly, the
original charge of attempted murder was not pursued. This
N was never an attempted murder. What the defendant did was N
to attempt to commit suicide by burning charcoal in her flat
but, in doing so, she exposed her son, who was then 9 years’
O O
old, in a manner which was likely to cause injury to his
health. Fortunately, he woke up and raised the alarm and in
P doing so, he very probably saved his mother’s life. P
I have been provided with a large number of reports from
Q medical and social welfare sources as well as most recently, Q
a probation report. Miss Cheung Suk-king is a government
social worker whose most helpful report provides a very
R R
detailed background about the defendant and the sad
circumstances in which she found herself, leading up to this
S offence. S
When the defendant went to Siu Lam Psychiatric Centre after
T her arrest, she was seen by Dr C Y Liu, Amy, who, on 18 July T
2013, diagnosed the defendant as suffering from recurrent
depressive disorder with a currently moderate to severe
U U
depressive episode and with a significant risk of self harm.
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A A
Importantly, she added that there were no psychotic
symptoms.
B B
What had driven the defendant to this state was a
combination of circumstances which are fully set out in the
C C
statements and reports before me. Essentially, she had been
married to a man who later developed schizophrenia and who
D had repeatedly threatened her physically and verbally. D
In 2011, she divorced her husband after nearly 10 years of
E marriage but by this stage, she was so filled with E
nightmares and bad memories that she never went back to the
matrimonial home until the day of this incident; instead,
F she stayed with her brother. But on 5 July 2013, she went F
back to the matrimonial home where she tried to commit
G suicide. G
In addition to the problem she had with her ex-husband, her
H son also had serious behavioural difficulties as he was H
mildly autistic, and in practice, what that means is that he
was subject to mood swings, including suicidal thoughts,
I severe temper outbursts over very trivial matters and he I
would scream and shout and throw objects and even assault
J others during these tantrums. J
From the details of what the defendant had to put up with in
K her daily life, it is no wonder that she reached the depths K
of depression. She herself described some of her inner
feelings in her interviews with the police. I am going to
L quote from page 304 of the papers in this case, where she L
said this: “I want to explain that I really did not intend
M
to kill my son”. M
At 99, that is Counter 99 in the interview:
N N
“I was probably out of my mind momentarily. In fact,
at that time, I was really naïve on that day, after I
O had poured the charcoal, I thought I would definitely O
die. At that time, I was afraid that something would
happen to my son and I even held my son in my arms and
P P
pressed his face against my chest. In fact, at that
moment, I, myself, did think about dying. I thought
Q about committing suicide because I had no way out. I Q
did not know what I could do. In the past, every day I
had heard my son saying that he was very upset. After
R hearing that, I was very upset too. I could understand R
why he was unhappy but I could not comfort him and
relieve his sadness. Sometimes, no matter how long I
S S
spent persuading him, he was just unwilling. I mean,
to be frank, I actually wanted to comfort him but I
T could not help him at all. I felt that I was really T
useless, my existence in this world, sometimes I feel I
am a burden to myself and to the others, even my son.
U I have burdened everyone around me so I am -- I think I U
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A A
am what others call ‘the cursed person’ and that means
whoever gets close to me would...”
B B
And then she stopped and said:
C C
“So I was really upset at that moment, very upset, I
was crying all along.”
D D
And at 109, lastly, in this section of the interview that I
purpose to read:
E E
“I did not mean to harm my son, I just want my son to
stay healthy and happy and that’s all.”
F F
And she went on to say:
G G
“I’ve been unhappy in my whole life because I’ve been
suffering for many years. For example, when his father
H went mad, his family said that I was the one to blame H
and I felt guilty too. I didn’t want that to happen,
how could I expect that my husband would go mad? And
I likewise, you...” I
And she was talking about the police -
J J
“...are now saying that I intended to kill my son. Why
K would I kill my son? You can ask my son how much I K
love him. When he is sick, when my son is sick, I can
stay with him round the clock, for 24 hours, side by
L side. Anyway, my life is not important but my son is L
very important. I do everything for my son’s goodness
sake. For my son’s interest, that means in order that
M M
the divorce between his father and I would not affect
my son, I let him continue with everything. I send him
N to school every morning, even if I am sick, I get up N
every morning. I always ask him to sleep as and when I
am back from work. In the morning, I would cook his
O breakfast and send him to school. Why would I harm my O
son? I do not know what I can do.”
P P
And that gives an insight to see how she was at the time
when this all happened.
Q Q
Now, after the defendant came under the care of Dr Amy Liu
in Siu Lam Psychiatric Centre, she responded well to
R medication. Eventually, she was recommended for out-patient R
treatment at the Tuen Mun Psychiatric Centre.
S Eventually, on 19 December last year, 2014, she was given S
bail and since then, reading from Dr Silvia Chen’s report
dated 22 September this year, matters have progressed
T T
extremely well to the extent that she has been able to
resume her previous work as a cashier at a bakery where she
U has been employed since 2001, with the exception of those U
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A A
months in custody while she was being treated at Siu Lam.
She works at the bakery six days a week and her employer has
B been really supportive and I can see from the reports that B
the defendant herself is appreciative of that. She also
gets on very well with other members of staff.
C C
As for her son, he has been staying at a children’s home
D where the defendant regularly would visit him. He also has D
been receiving psychiatric help and with this, he has been
able to settle down at school and there has been a general
E improvement of his behaviour and this has enabled the E
defendant to rebuild her relationship with her son.
F She will soon be able to move into an address that she has F
been allocated by the people responsible for housing in a
G public housing unit and there is little doubt that she is G
looking forward to being able to share that address with her
son, once she is able to do so.
H H
The defendant has been regularly attending psychiatric
sessions in an out-patient clinic in the Castle Peak
I Hospital. She has also had monthly sessions with a clinical I
psychologist and is in regular contact with the community
J psychiatric nurse. In addition, she has been seeing J
Dr Chen, Silvia Chen that is, punctually, every six to eight
weeks since the very first visit that she made to that
K doctor the day after she was given bail. K
What is the present position so far as Dr Chen is concerned?
L What she says in her report is that the defendant is now L
entirely free from any mental symptoms. In short, in other
M
words, this is one of those rare cases at this court where M
there is a happy ending. The defendant is lucky enough to
have a supportive family, a supportive employer and
N supportive friends and she is now well on the way to N
improving her relationship with her son.
O And so it is my pleasant duty, first of all, to enter a O
verdict of not guilty on the 1st count of the indictment,
under the provisions of section 51A of the Criminal
P P
Procedure Ordinance, Cap 221.
Q I have said it before and I am going to say it again so as Q
to emphasis the point. This was never an attempted murder.
The defendant’s actions were carried out at a time when her
R mind was filled with problems beyond most people’s R
imagination. She is well again now and it is to be expected
that the defendant will stay that way.
S S
On the last occasion, I adjourned the case in order to
T obtain a probation report, and to find out in particular if T
this defendant was a suitable candidate for a Probation
Order. I have now had the benefit of reading a lengthy
U report prepared by Miss Au Yeung Wing-yee and I am extremely U
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A A
grateful for the report that she has prepared. She speaks
in the report of the genuine insight that the defendant has
B to her emotional problems of the past and she confirms the B
good progress in rehabilitation that other medical witnesses
have also spoken about.
C C
Madam Wong, I am told by Miss Au-Yeung that you have also
D helped your son in mending some of his behavioural problems. D
The probation officer has stated that she can recommend you
for probation on three conditions. The conditions are that
E you should work and reside as directed, that you will E
participate in counselling groups and other programmes as
directed and receive psychological or psychiatric treatment
F F
as and when directed.
G None of those conditions is new to you. You have been co- G
operating with the medical people that you are seeing and
you have been working. I have no doubt about that. I take
H the view it would be appropriate in your case to impose a H
Probation Order as I think you need as much support at this
time as possible. And I also think that it should be
I I
coupled with the three conditions referred to by the
probation officer.
J J
However, before I can impose a Probation Order, I need your
consent because a Probation Order means that you will need
K to comply with the probation officer’s requirements. She K
may, from time to time, visit you or you may be required to
visit her, and I am required by law to warn you that if you
L were to breach probation by committing some other offence or L
by failing to comply with any request made by the probation
M officer, you could be brought back to court and dealt with M
for this offence.
N I hasten to add, I do not think for one moment that anything N
of that kind will happen. You have been entirely co-
operative since your arrest and you have shown yourself
O eager to live a normal life once more. O
So would you stand please. Are you prepared to be placed on
P P
probation on the conditions I have referred to?
Q ACCUSED: Yes, I am willing. Q
COURT: All right. Then in those circumstances, Madam Wong, I
R am going to make a Probation Order for 2 years and that will R
be coupled with the three conditions that I have referred
to. And to spell it out for the purposes of the order, the
S conditions are that you shall work and reside as directed; S
you will participate in counselling groups and programmes as
T directed; and shall receive psychological and/or psychiatric T
treatment as and when directed.
U U
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A A
Madam Wong, I have great confidence that all will be well
with you. Please do not let me down because by letting me
B down, you will be letting down all those friends and family B
that you have, who have been giving you all this support.
Do you understand?
C C
ACCUSED: Yes, I do.
D D
COURT: All right. Then that is all and the case now is at an
end and I wish you well. But do you have some property
E downstairs? E
MR LUK: No, she is on bail.
F F
COURT: Is there any property that she had...
G MR LUK: Except bail money, bail money. G
H
COURT: What? Bail money? H
MR LUK: She is on bail.
I I
COURT: So where is that?
J MR LUK: I think she deposited a sum - yes, she deposited a sum J
of...
K COURT: All right, well, you can make inquires about that so K
that she gets it back.
L L
MR LUK: Yes, apart from that, there is no...
M COURT: Nothing else. M
MR LUK: ...no other property...
N N
COURT: All right.
O MR LUK: ...lodged with the court. O
COURT: All right. Madam Wong, if you would like to go and --
P you can leave the dock now, it’s all over. P
COURT: But I do have some rather important comments, as I
Q Q
mentioned last night, to make about this case. I gave you
an opportunity to think about what I was saying. I was
R horrified to see that the interview was conducted by two R
male officers with no female officer present.
S MR ARTHUR: Yes, indeed. S
COURT: Especially as I think you’ve told me there was a female
T officer but she left as soon as the interview started. T
U U
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A A
MR ARTHUR: Yes, that’s right. I have conveyed very clearly, I
believe, your concerns to the police and I believe they
B understood it and I am provided with a document - we’ll call B
it a document - which sets out the timeline for the handling
of the defendant - and I will give this to your Lordship.
C C
The only important thing there, I suggest, is that they
sought a clearance from the doctor before they interviewed
D her. D
COURT: Yes, I saw all that.
E E
MR ARTHUR: That’s not your Lordship’s point, I know that.
F COURT: That is not my point at all. At the beginning of this F
interview, it says A and B, two male officers, are present.
G G
MR ARTHUR: Yes, yes.
H COURT: The defendant is C and then D, Tong Ka-man, Photographer H
of Identification Bureau. And you tell me she is a woman,
and she left as soon as the interview started. Why?
I I
MR ARTHUR: If you look at that document I have given you,
ignore the timeline, at the bottom are two bullet points.
J Now, I have read... J
COURT: There are no directions as to how women...
K K
MR ARTHUR: That’s what I’m told and I have been back to the
L police, having received those, having those two points made L
because I knew, and I know, that your Lordship is concerned
about that, and that is the police’s position. It’s not the
M OC case’s position, that is being considered at a senior M
level and...
N COURT: I can understand if it is not practical to get a woman N
officer present for some reason or another.
O O
MR ARTHUR: Yes.
P COURT: But when there was actually one on the scene... P
MR ARTHUR: Yes.
Q Q
COURT: ...it’s unbelievable that she should be sent out of the
room just at the moment the interview begins.
R R
MR ARTHUR: Yes.
S S
COURT: All right, well, I notice there are no directions so...
T MR ARTHUR: No directions. T
COURT: If there are no directions, there need to be.
U U
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A A
MR ARTHUR: Yes. There are two other matters which were
concerning.
B B
COURT: Yes.
C MR ARTHUR: Your Lordship, one was the Pol.154 and the pre- C
amble...
D D
COURT: Yes.
E MR ARTHUR: ...to that with repetition inserted by the E
statement-taker in the final paragraph.
F COURT: Yes. F
MR ARTHUR: And the police concede that they did not conform
G with their own police procedures manual, and I think that... G
COURT: It’s not just this case, somebody’s sent out a word...
H H
MR ARTHUR: Right.
I I
COURT: ...saying you’ve got to repeat this, because I’ve got --
case after case it’s been happening, and I think somebody
J has sent out a memo or something to every police station J
saying you’ve got to repeat it.
K MR ARTHUR: Yes, yes. K
COURT: It’s not coincidence.
L L
MR ARTHUR: No, well, there it is, the officers in this case
M concede that and it’s to be anticipated that it won’t happen M
again here. The second -- the third matter that your
Lordship was concerned about was this declaration which
N appears in relation to the criminal records, and the police N
again concede that that was wrong.
O COURT: See, all we have to do is draw up a piece of paper. O
MR ARTHUR: Yes.
P P
COURT: If they’ve got to have a data protection thing anyway -
Q I don’t know why they do but they do - so they put that at Q
the top of a piece of paper, all the names of the witnesses,
and all they have to do is initial that they’ve been read
R the terms of the data protection, nothing to do with the R
witness statement at all, just a piece of paper on a file.
S MR ARTHUR: Well, the force procedures manual says if there’s to S
be a declaration, it should be on a separate sheet of paper
T but it should only be for those people who do have criminal T
records.
U COURT: Of course. U
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A A
MR ARTHUR: Not many pathologists, and that was the example that
your Lordship gave, fall into that category. So there it
B is, those maters have been brought home to the police. B
COURT: All right. Well, I am going to say something about it
C C
so that they’re not just words in the wind, and we can send
it to the Director of Public Prosecutions who ought to know
D about it. D
There is an important matter which I have raised with
E Mr Arthur and alerted him to the fact that I would be E
raising it today and I am grateful to him for his research
into the three aspects that I want to raise now.
F F
The defendant in this case was, as everyone recognises, in a
G
very disturbed state of mind at the time of her arrest. She G
was taken to hospital after she had attempted to commit
suicide and within a day of her arrest, she was fit enough
H to be interviewed with the permission of the doctors, but H
when this took place - and in fact, there were two
interviews at the hospital where she was being treated - on
I 7 July 2013, two officers, both of them male, were present. I
There was no woman officer present.
J J
What makes this slightly worse is that there was a female
officer available, referred to as ‘D’ at the heading of each
K interview, but she did not remain for the interviews K
themselves. In other words, she was available and present,
but as soon as the interviews began, she had left the room.
L L
Now, Mr Arthur has informed me today that there are no rules
or directions regarding the handling of an arrested female
M M
in the circumstances as pertained to this case.
Specifically, there is no direction that she should have
N been handled by a female officer. N
The second thing he has told me, again I quote: “The
O defendant was the arrested person of an attempted murder O
case, a serious and violent crime, the use of a male officer
to interview the defendant was appropriate and in line with
P P
police procedures”.
Q Yes, this was a serious investigation of a very troubled Q
lady. I find it very difficult, whether there are
directions or not, to understand why police did not see fit
R to at least keep a woman police officer present at the R
interview; whether she played a direct part in the
questioning is another matter.
S S
I understand completely that there is no complaint of any
kind raised against the officers in this case who conducted
T T
the interviews. But it should, as a matter of principle,
surely be force policy to have a woman police officer
U present when a female prisoner is being interviewed, U
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A A
whenever this is practicable. Sometimes it may not be, but
if it is possible to have a woman officer present during
B serious investigations of woman defendants, that must be B
preferable.
C C
In this case, it is especially important because here the
defendant was highly distressed. She was in mental turmoil
D following a suicide attempt and, accordingly, it is D
unfortunate, to put it mildly, that a female officer wasn’t
at least present while she was being questioned.
E E
Now, I feel that some kind of advice to this effect should
be given by the Department of Justice to police stations
F throughout Hong Kong. It seems that there are no guidelines F
at all, up to now, which is unfortunate. In the absence of
G guidelines, the Department of Justice should surely issue G
some so that this kind of incident doesn’t occur again.
H The second matter of concern is this. The data protection H
certificate attached to every statement, practically, by
witnesses made in cases these days - the waste of paper
I involved is one thing - but it’s completely unnecessary. I
It’s not part of a witness statement. It seems that there
J is some false notion that a data protection certificate has J
to be attached to every witness statement taken by the
police. I want to make this quite plain, there is no
K witness statement, whether the person has a criminal record K
or not, which ever needs to have such a certificate attached
to the statement.
L L
If the police feel they need to cover themselves, all they
M
need to do is to print out a form with the certificate M
written at the top and to get any witness who has a criminal
record to initial the form to show that they’ve read the
N data protection certificate. That’s all. Not on their N
statement but in a separate piece of paper.
O I just want to take an example of what landed on my desk on O
Friday in a case that hasn’t yet been heard - it doesn’t
matter because there’s nothing prejudicial to the case that
P P
I am going to say - but it’s a statement by a pathologist in
a criminal case with the number 183/2013. The pathologist
Q is well known in these courts, he is an extremely capable Q
witness and I think it could be taken without being said
that he has no record.
R R
How does the record -- how does the statement finish? “I
have been told” - I read from his statement directly and I
S S
don’t leave out any words - “I have been told that my
criminal record, kept by the Commissioner of Police, in
T accordance with the Police Force Ordinance, chapter 232, T
Laws of Hong Kong, may be disclosed to the defence in
criminal proceeding in future”. Can you imagine what a
U U
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jury would think when they heard that? It can only mean
that he has got a record.
B B
And in the last case that Mr Luk appeared in front of me,
just a few weeks ago, he was actually proposing to read a
C C
similar statement to that to the jury, of a witness who
again, I think, was a pathologist, being read under the
D provisions which enable the jury to hear the witness’s D
evidence without actually calling the witness. But I had to
stop him before he did because the jury would have thought
E exactly that, “Oh, a pathologist with a criminal record”. E
Many, many other statements have got the same error and it
has got to stop. The declaration is quite unnecessary.
F F
In this case, a similar sort of declaration, I’ve got a list
G of Dr Wong at page 136, the pathologist, Dr Lam, Dr Y Poon, G
Dr J Poon, the housing officer, Miss Eva Leung, the
ambulance man, Chung Wai-lun, another ambulance man, Cheung
H Sze-lok and there are other witnesses as well, just to take H
the example of some in this present case. It’s perfectly
apparent that that wholly unnecessary paragraph is the
I I
result of some misguided advice that must have been given to
the police, presumably by the Department of Justice.
J J
It’s not just this case or a few cases, it’s all the cases I
have handled recently, have all got the same mistake. And
K as I say, it also adds colossally to the waste of paper K
because very often these certificates are on a separate
piece of paper attached to the statement. I had actually
L made this clear in previous cases but it’s perfectly obvious L
that they are just words thrown away in the wind because the
M practice hasn’t stopped and the advice has been ignored. M
The other matter is very simple, and as Mr Arthur has
N rightly said this morning, it is obviously a mistake, but N
again, it happens in so many cases that somebody has
obviously sent the word out that the statutory declaration
O at the start of every witness statement must be repeated at O
the end of the statement.
P P
That statutory declaration is: “I am willing to make a
statement to the police. The statement I am about to make
Q is true to the best of my knowledge and belief and I make it Q
known that if I have wilfully stated anything which I know
to be false, or do not believe to be true, I may liable to
R prosecution for a criminal offence”. R
Well, it has been repeated at the end of every statement as
S S
well and it doesn’t need to be, and as Mr Arthur has said,
he accepts that that is so. But it would be helpful if the
T Department of Justice, again, could issue a directive to all T
police stations in Hong Kong to make sure that this mistake
is not repeated. It’s just additional work and it’s a waste
U U
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A A
of time for the witness to have to write this out all over
again.
B B
Mr Arthur, I know that these words will be lost in the wind
if I don’t ask for a transcript.
C C
MR ARTHUR: Yes.
D D
COURT: And if you would make sure it gets to the Director of
Public Prosecutions...
E E
MR ARTHUR: I will undertake to do that.
F COURT: ...once I’ve got it. F
MR ARTHUR: Yes, I will undertake to do that.
G G
COURT: Thank you very much, thank you. All right. Yes,
there’s nothing else, is there?
H H
Court adjourns - 11.07 am
I 26 October 2015 I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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