HKSAR v. Poon Suet Ming

CACC000265/2000

CACC 265/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 265 OF 2000

(ON APPEAL FROM HCCC 77/2000)

__________________

______________

Coram: Hon Stuart-Moore Ag. CJHC, Leong and Stock, JJ.A. in Court

Date of Hearing: 8 December 2000

Date of Judgment: 8 December 2000

______________

J U D G M E N T

______________

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

1. This applicant was charged upon an indictment containing two counts: attempted murder and as an alternative causing grievous bodily harm with intent to do so. He had pleaded guilty to the second charge and in respect of that plea he was sentenced by Gall J. who made a hospital order pursuant to the provisions of section 45 of the Mental Health Ordinance, Cap.136. The learned judge did not specify any period during which the applicant should be detained. The order made was that he be detained for an indeterminate period. The applicant now seeks leave to appeal against that order.

2. The facts of the case fall within a narrow compass, but disclose a very serious offence. On 4 December 1999 a civilian, Mr Chan, was standing at the platform of the Kwai Hing MTR station waiting for a train, and this applicant walked swiftly up to him and, with his hand, deliberately pushed him onto the track. Mr Chan sustained multiple injuries, was an in-patient in an intensive care unit for some days, and thereafter in hospital for some months. The applicant himself was arrested immediately after the incident and whilst still at the MTR station.

3. The applicant is a paranoid schizophrenic, and at the time of the incident was suffering from active psychotic symptoms under the influence of which he committed this offence. He has, regrettably, a history of mental illness. He has previously been driven to violent and irrational behaviour. The reports submitted to the trial judge were at one in their conclusion, namely, that there was no telling when the applicant might recover sufficiently to be discharged. Each recommended that he be committed to the Siu Lam Psychiatric Centre for an unspecified period.

4. The applicant is unhappy about the order, but in our judgment it was quite obviously the correct order to make. The applicant is without doubt gravely ill, and poses a threat to members of the public. We have had the advantage today of an up-to-date report which shows he still suffers from schizophrenia, and that he still requires treatment in hospital until such time as it is established that he is suitable for discharge. It is obvious that one cannot at this stage say with any confidence when the threat which he poses to the public might with treatment be reduced so as to enable his release. In those circumstances an order limiting the period of his detention would not have been appropriate. It is a matter to be assessed, by those treating him, at the appropriate time.

5. The only flaw in the order is that it did not specify the place at which the applicant should be detained; whether at a psychiatric centre or in a mental hospital. The judge instead ordered him to be detained at such institution as the Commissioner of Correctional Services directed. That was not appropriate. Section 45 of the Ordinance requires that a court should specify a centre or mental hospital. The recommendation of the psychiatrists was that he be committed to the Siu Lam Psychiatric Centre. For this reason only, we grant leave to appeal against sentence. The order of the judge will be varied to the extent that it shall specify that centre as the place of detention. The appeal against the making of the hospital order itself and against the indeterminate length of that detention is, however, dismissed.

Representation:

Mr D.G. Saw, SC leading Ms. Laura Ng, GC for DPP for the Respondent

Ms. Yew King Suk Lily assigned by DLA for the Applicant