Ho Chun Wah v. The Queen

CACC000383/1979

Coram: Trainor, J.

Date of Judgment: 15 May 1979

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JUDGMENT

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1. Ho Chun Wah was charged in the Magistrate's Court on two counts, (1) of loitering with intent to commit an arrestable offence and (2) with being in possession of an offensive weapon and to those charges he pleaded guilty.

2. The learned magistrate was in possession of two medical certificates which showed that the accused was a paranoid schizophrenic. He was asked not to proceed to conviction but to make a mental health order under section 45 of the Mental Health Ordinance. The magistrate considered that he had no authority to do that and must proceed to conviction before making such an order. He proceeded to convict and then, as I understand, heard argument as to whether or not he must record the conviction. The learned magistrate ruled that he had no alternative after conviction but to record it.

3. There is no doubt that under section 45(1) of the Mental Health Ordinance a magistrate may in the course of a trial make a hospital order. Section 45(1) paragraph (a) sub-paragraph (iii) provides that where a person "is charged" before a magistrate with an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission with which he is charged but is a mentally disordered person and his condition is such as to warrant his detention in the Prisons Department Psychiatric Centre the magistrate may make a hospital order authorising the admission of that person to, and his detention in the centre or in a mental hospital. That paragraph follows immediately after a paragraph which makes provision for the magistrate to make such an order after a person has been convicted of a summary offence. In other words a magistrate is empowered to make such an order either before conviction or after conviction. (It is of interest to note that under s.60(2) of the Mental Health Act, 1969 the Magistrate's Court is expressly empowered to make a similar order if it is satisfied that the accused committed the offence charged "without convicting him".) However, the learned magistrate did proceed to conviction and after the plea of guilty made the hospital order. In answer to the argument presented to him he indicated that he considered he was compelled to proceed the conviction.

4. With respect, I disagree with the learned magistrate's interpretation of the powers conferred on him. The powers of the learned magistrate to deal with circumstances such as those prevailing in the instant case are clearly provided in section 45(1) of the Mental Health Ordinance. The learned magistrate in his statement of findings has stated that had he considered that he had the powers so to do he would not have recorded a conviction. I completely agree with the view expressed by the learned magistrate and I allow this appeal to the extent that there be no conviction.

Representation:

Mr. Whitehead (D.L.A.) for appellant.

Mr. Ryan, c.c. for Crown.