HKSAR v. Raghbir Singh

HCMA 13/2023

[2023] HKCFI 934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 13 OF 2023

(ON APPEAL FROM TMCC 1882 OF 2022)

________________________

BETWEEN

________________________

________________________

REASONS FOR JUDGMENT

________________________

1.The appellant appeals against the order made by the Principal Magistrate, Mr Don So (the magistrate), that the appellant be admitted to Siu Lam Psychiatric Centre (Siu Lam)  for a period of three months (the hospital order), pursuant to s. 45 of the Mental Health Ordinance, Cap. 136 (Cap. 136).

2.The appellant was charged with six counts of criminal damage.  The criminal damage related to allegations that the appellant had thrown stones which damaged the windscreens of 5 vehicles parked on the roadside and one moving vehicle.  Two counts of criminal damage were charged in TMCC 1882/2022 and four other counts of criminal damage were charged in TMCC 1312/2022.

3.Before the plea was taken, the magistrate called for two psychiatric reports on the appellant.  The appellant was found to be unfit to plead.  The psychiatrists further recommended that the appellant be admitted to Siu Lam for a period of 3 months under s. 45 of Cap. 136.

4.At the trial before the magistrate the appellant elected not to give evidence or to call any witness.

5.The magistrate found that the acts complained of unproved in 5 of the charges.  He found the act in the 2^nd charge in TMCC 1882/2022 (“Charge 2”)  was proved beyond reasonable doubt.  Upon consideration of all relevant circumstances, the magistrate imposed the hospital order on the appellant in relation to charge 2.

The facts in relation to charge 2

6.The prosecution alleged that the appellant threw stones to damage the windscreen of the same vehicle (the truck)  on 10 and 11 October 2022.  These two allegations were the basis of charges 1 and 2 respectively in TMCC1882/2022. The owner and driver of the truck (the driver)  gave evidence at the trial.

7.The driver, an Indian man, testified that on 10 October 2022, when he went to collect his parked truck, he noticed the windscreen was damaged.  He then reported the matter to the police and handed the trucks’ camera to the police for them to retrieve the images from it.  Upon retrieval of the images by the police, the driver saw the images of the suspect who resembled a South Asian Male.

8.On the following day, 11 October whilst the driver was driving his truck, the driver saw a South Asian male at a bus stop who he believed was the same male captured in the retrieved images of the camera footage that had thrown the stone at his truck the day before.  The driver immediately used his mobile phone to take a picture of that male.  That male then threw a stone at his trucks’ windscreen and damaged it.  The magistrate described the event at paragraph 15 of the Statement of Findings [AB/p.20] as follows: -

“15. On the next day, 11 October [2022], [PW12] was driving his truck on the road. Upon seeing the red traffic light ahead, he stopped his truck. He noticed the suspect … standing at the bus stop in front of him, about 15 meters away. He observed the face of the suspect for about two minutes, in broad daylight, without any obstruction, as he was waiting for the traffic light. He even took out his mobile phone to take a picture of the suspect, which in court is produced as Exhibit P9 (a black and white colour photo). On green light, he started to move his truck, but the suspect came out to his front to throw a stone damaging his front windscreen. The suspect fled the scene. He called the police immediately. He had to arrange to have his windscreen fixed again.”

9.After the driver’s windscreen was damaged on 11 October, the driver again handed his car camera to the police to investigate however the video file was corrupted.  An image (exhibit P8(8))  however was retrieved which shows the moment when the male was throwing a stone at the windscreen of his truck.  The image of the person throwing the stone was similar to the person, in features and clothing that he captured on his mobile phone (Exhibit P9)  before the male threw the stone.  At the trial the driver made a dock identification of the appellant as the person who threw the stone at his trucks’ windscreen on 11 October.

10.The magistrate was satisfied beyond reasonable doubt on the drivers’ evidence that the appellant had thrown the stone at and damaged the trucks’ windscreen on 11 October.  He found the act in charge 2 proved.  The magistrate was satisfied as the accuracy and reliability of the driver’s identification of the appellant when the appellant threw the stone at his truck.  The magistrate was however, not satisfied that it was the appellant who threw the stone on 10 October as there were no eye witnesses to the throwing of the stone and the only evidence were the images of the car camera which were not entirely clear to the magistrate.  He therefore was not satisfied that the appellant threw the stone at the truck on 10 October (charge 1).

Reasons for Hospital order

11.In passing the Hospital Order, the magistrate considered the dangerous nature of the appellant’s act.  In particular, the magistrate found the appellant’s throwing of a stone at the windscreen of a moving vehicle dangerous. He stated that the reaction of the driver could not be anticipated as there was a possibility that the driver might swerve to the right and hit a car on the opposite lane, or he might swerve to the left to mount onto the pavement and knock down some pedestrians [AB/p.24/§26].

12.In view of the dangerous nature of the appellant’s act, the seriousness of the appellant’s psychotic condition and the recommendation made in the psychiatric reports he was of the view that the appellant should receive in-patient treatment for a period of three months at Siu Lam.  The magistrate was satisfied that it would best serve the public interest and that of the appellant to follow the psychiatrists’ recommendation.  Accordingly, the magistrate ordered that the appellant be admitted to Siu Lam for a period of three months, pursuant to s. 45 of Cap. 136 [AB/p.24/§27].

Grounds of Appeal

13.The appellant appealed against the hospital order on the general ground that it was too severe.

14.Mr James Wong of Counsel was assigned by the Director of Legal Aid to represent the appellant in the present appeal.  By his letter to the Registrar dated 17 January 2023, Mr Wong indicated that he would not file any Perfected Grounds of Appeal or Submissions.  His instruction was limited to assisting the Court.

Discussion

15.The magistrate was empowered to impose a hospital order under Section 45 of cap 316 as the conditions had been met.  The section 45 order was a hospital order against the appellant who on the written evidence of two psychiatrists considered the appellant a mentally disordered person.

16.In respect to the appropriateness of the hospital order, Mr Dickson Heung Public Prosecutor referred to the principle as explained by the Court of Appeal in HKSAR v Chiu Yu-to [2001] 3 HKC 186 in assessing the propriety of a hospital order.  The Court held that the primary consideration must be given to the protection of the public and the interest of the offender. At paragraph 24 and 25 the Court observed: -

“24. […] Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.

25. The general tenor of the courts’ approach to this aspect of sentencing has been summarised in an article, entitled Sentencing the Mentally Disturbed Offender, (1965)  Crim. L. R. 685 which, at p. 698, reads:

‘[…] The Court is quite prepared to abandon concepts of retribution and deterrence when dealing with a mentally-disturbed offender who has committed even a serious offence of violence which would in the normal way attract a deterrent sentence, and sentences of imprisonment are used only where a hospital order or probation order with a condition for treatment are unsuitable…’

26. In R v Chan Kin, CACC 421/1989 (unreported), Silke V-P described at p. 4 the making of an order under section 45 of the Ordinance as being:

‘… for the protection of the public and in the interest of the applicant.’”

Conclusion

17.The magistrate carefully considered the two psychiatric reports.  The psychiatrists were of the opinion that the appellant “suffers from a psychotic disorder with differential diagnoses of paranoid schizophrenia and delusional disorder.”  They were of the opinion that the appellant had no insight into his mental illness and in view of the appellant’s “actively psychotic condition”, inpatient treatment be recommended.

18.The magistrate followed the recommendations made by the two psychiatrists as to the specified time of 3 months for in-patient treatment.  He also took into account the dangerous nature of the appellant’s act, the public and the appellant’s interest when imposing his order.

19.I can see no substance or basis in the appellant’s ground that the order or the specified period of the order for 3 months was too severe.  The appellant’s appeal against the order is dismissed.

Mr Dickson Heung, PP of the Department of Justice, for the respondent

Mr James Wong Lap-wai, instructed by D.L.A., for the appellant