HKSAR v. Ong Wing-piu

CACC000377/2003

CACC 377/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 377 OF 2003

(ON APPEAL FROM DCCC 1195 OF 2002 & DCCC 335 OF 2003)

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Coram: Hon Stuart-Moore Ag CJHC, and McMahon J

Date of Hearing: 28 October 2003

Date of Judgment: 28 October 2003

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J U D G M E N T

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Stuart-Moore, Ag CJHC (giving the judgment of the Court):

1.On 21 July 2003, the Applicant pleaded guilty in the District Court before Deputy Judge Candy to charges of burglary and doing an act tending and intended to pervert the course of public justice. When the facts had been outlined and admitted, mitigation was advanced which plainly indicated that the Applicant had mental problems. The judge then ordered psychiatric and psychological reports, amongst others, in order that the appropriate method of sentence could be properly determined.

2.In due course, the Applicant came before Deputy Judge H.F. Woo on 5 August 2003. She was provided with the mitigation which had been put forward at the earlier proceedings together with all the reports which had been ordered. She then imposed a three-month Hospital Order, pursuant to section 45 of the Mental Health Ordinance, Cap. 136, authorising the Applicant's detention in the Siu Lam Psychiatric Centre. The order was made in respect of both charges.

3.The Applicant now seeks leave to appeal against his sentence. In his homemade ground of appeal, dated 28 August 2003, the Applicant stated that he was not abnormal and was the same as other people. Today, he has indicated that he will be released on 4 November 2003 and that he is feeling perfectly normal. In such circumstances, he invited us to consider granting him an earlier release date.

4.Ms Yiu appears on the Applicant's behalf in these proceedings, having been instructed to do so by the Director of Legal Aid in view of the Applicant's mental state. She has not been able to advance any grounds of appeal.

5.The judge had little choice on the question of sentence. Dr C.H. Yuen's report described the Applicant as a known schizophrenic patient and stated that the Applicant:

".... lacks insight and refuses to have treatment. Although not violent at present, the risk that he would act violently against the alleged persecutors is high if his illness is left untreated. A period of compulsory treatment at this moment is desirable. If the court sees appropriate, I would recommend that he be given a sentence of 3 to 6 months under Hospital Order, Section 45 of the Mental Health Ordinance. He could serve the sentence at Siu Lam Psychiatric Centre and provision has been made for the admission." (Appeal bundle p. 22)

6.In a further psychiatric report prepared by Dr Mak Dun-ping, the same opinion was expressed save that it was coupled with a more limited recommendation, namely, a three-month Hospital Order.

7.Plainly, there is no ground for interference on the part of this court. Accordingly, this application is dismissed.

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent.

Ms Eliza K.S. Yiu, instructed by Director of Legal Aid, for the Applicant.