Hksar v Chiu Wai Kan Vicken

CACC 438/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2009

(ON APPEAL FROM HCCC NO. 172 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1. On 30 July 2008, the appellant killed his stepfather inside his stepfather’s flat in Kowloon City. After trial before Beeson J and a jury, he was convicted on 8 December 2009 of the offence of murder and sentenced to life imprisonment.

2. The case came before us on an application for leave to appeal the conviction and on 22 February 2011 we granted leave, treated the hearing of the application as the appeal, set aside the conviction for murder and substituted a verdict of guilty of manslaughter on the basis of diminished responsibility.

3. It now falls for us to sentence the appellant for that offence.

The facts

4. The facts are rehearsed in our judgment of 22 February 2011. The appellant was aged 23 years at the time of the killing and his stepfather 75 years. The cause of death was manual strangulation and massive blood loss from numerous wounds. The applicant had been living with his stepfather for some years. It would appear that there were occasional quarrels between them but, according to the appellant’s testimony, the relationship with his stepfather was, on the whole, good.

5. In May 2008, the appellant married and moved out of the stepfather’s flat but the marriage floundered. In the two or three days prior to the killing the appellant engaged upon a serious quarrel with his wife who drove him out of the matrimonial home and he returned to the victim’s flat in Kowloon City. In the small hours of 28 July 2008, he went back to the matrimonial home with some friends to ask his wife to forgive him, but the attempt was unsuccessful and he went with his friends for a drink and a massage and thereafter returned to the victim’s flat.

6. The cause of the appellant’s problems with his wife was his own drug habit. He had started taking ketamine at the age of 16 years and consumed the drug several times a week by the time he was 18 or 19 years. He managed to cease consumption for some months about 2 years before the offence in question but, because of an emotional upset over a girlfriend, he relapsed and began consuming drugs again. His consumption then became a daily habit. In May 2007, he was convicted of possession of dangerous drugs and fined.

7. His evidence at trial was that because of the fallout with his wife he was very unhappy and, in the result, consumed more drugs and, a few hours before the killing, he left the victim’s flat and went to obtain ketamine which he consumed on his return. He was unable, he said, to resist taking the drug.

8. As we pointed out in our judgment, it is not clear quite what then occurred because the appellant offered differing accounts of the events leading to the killing. In statements made to the police, he talked of a quarrel with his stepfather over television noise or over the appellant’s consumption of ketamine; a quarrel which led to a fight in the course of which he killed the victim. In the last interview in time, he spoke about events in the third person talking of that person, namely, himself, being in a crazy state, very confused and that he had stabbed his father with a screwdriver. He talked of hallucinating in the small hours after he had consumed the ketamine.

9. In his testimony before the jury, he said that about six months to one year before the killing, a voice started to speak to him and told him that his father would hurt him; but the voice would come to him even when he did not take drugs and he became aware, through the voice, that his father was performing black magic. He had told other people about the voice. On the night of the killing there was, in truth, he said, no dispute with his father but he had taken ketamine because he was so unhappy and had been unable to resist taking it. He took a saw from a drawer and tried to hurt himself with it but he did not do that because the voice told him to kill his father instead. He took a pair of scissors and stabbed his father who was in the bedroom. His father got up and followed him and the voice told the appellant that if he did not kill his father, he would himself die. His father, according to this evidence, snatched the scissors so the appellant took a screwdriver from the drawer and effected a frenzied attack on his stepfather. A voice told him to get away and he went to the airport.

10. This account of an unprovoked attack was supported by the objective evidence, for there was no sign of a struggle.

11. After the killing, the appellant went to the airport and telephoned some friends saying that he had killed his father.

12. The friends testified as to the appellant’s drug-taking habits, though they had tried to persuade him to stop. One of the witnesses said that sometimes the appellant’s condition was such that he would talk to a lamp-post. The appellant had told one of the witnesses that somebody was going to harm him and that his father had cursed him with black magic; yet that witness said that in the two days before the killing, the appellant appeared to be acting normally.

13. In the small hours of 30 July 2008, the two friends received a call from the appellant who sounded incoherent and said that he was at the airport and had killed his father. They telephoned the manageress of a bar which the appellant used to frequent and she telephoned the appellant and advised him to go to the police. He did so that morning.

14. The cause of death was manual strangulation and massive blood loss from numerous wounds caused by a screwdriver used with considerable force and the indicia of strangulation suggested the application of considerable pressure.

15. The abnormality of mind operating on the appellant at the time of the killing was either a psychosis induced by long-term ketamine consumption, or ketamine dependence of such a degree that the psychological urge to consume the drug was irresistible; it is not possible to say which of the two but for present purposes it is not necessary to determine that issue.

16. It is correctly said that sentencing is an art; that is particularly so in manslaughter cases because manslaughter is committed in an extraordinary variety of circumstances, for which very reason there are no guideline tariffs, and sentences in other manslaughter cases are seldom of much utility. So too, cases of manslaughter by reason of diminished responsibility vary significantly in their circumstances and tend to import difficult questions of public protection.

17. Two particular matters concerned us: first, whether the appellant poses a long-term danger to society and, secondly, the appropriate approach for a court tasked with sentencing in a diminished responsibility manslaughter case where the damage to the mind has been brought about by the conduct of the accused himself. On the first occasion upon which this case came before us for sentence, we were referred to one of two Hong Kong decisions, but none contained any analysis of the second issue.

18. We have had the benefit of a psychiatric report and the oral testimony of a psychiatrist, Dr Amy Liu, for whose careful analysis we are grateful.

19. The effect of her testimony was that there is no evidence of any psychotic experiences since the appellant’s conviction in 2009 and no active psychotic symptoms elicited during her interviews with him. He is now divorced and hopes to see his son by his marriage after his release. His mental condition has remained stable for some time. He suffers no current psychiatric illness.

Future risk

20. What is difficult to predict, understandably in the circumstances, is future risk. Since he has been in prison he has, perforce, abstained from substance abuse but the difficulty is in predicting the risk of him resuming that abuse once he is no longer in a protected environment. His history is not encouraging: he commenced drug abuse at the age of 16 years and, subject to one break of some months, continued that abuse for about seven years, with a crescendo of abuse resulting in heavy use of the drug. He resumed ketamine after an upset with the girlfriend, killed the victim in this case after an upset with his wife and had been wont to associate with undesirable personalities.

21. Dr Liu’s conclusion was that if the appellant were to resume ketamine consumption in the future, the risk of a drug induced psychotic condition was high. No psychiatric treatment is warranted at this stage but it is important, she says, for there to be close monitoring and supervision of him once he is out of prison.

22. In R v...