HKSAR v. Law Kam Hung

HCMA000454/2004

HCMA 454/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 454 OF 2004

(ON APPEAL FROM KTCC 1320/2004 & KCCC 1262/2004)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 9 June 2004

Date of Judgment: 9 June 2004

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J U D G M E N T

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1.The Appellant appeals against her sentence. She was convicted on her own plea of two offences of obtaining services by deception.

2.The facts in each case were almost identical, in that the Appellant would enter a restaurant, order a full meal and after consuming it then announce to the waiter she could not pay the bill. The learned Magistrate also knew that the Appellant had some seven previous convictions, twice for theft and twice for obtaining services by deception and all these convictions were in 2001.

3.The learned Magistrate, at the time, very properly, ordered probation and community service reports, but unfortunately, the Appellant had refused to cooperate with the probation services and, upon returning before the learned Magistrate had displayed rather irrational and bizarre behaviour. So, the learned Magistrate thus called for two psychiatrics' reports. The two psychiatrics were of the opinion that the Appellant was suffering from schizophrenic and both psychiatrists then recommended a hospital order of three to four months. The reports also indicated that the Appellant had been a known schizophrenic since 2001, but she had failed to follow up with psychiatric outpatient treatment.

4.Having considered all the available options, the learned Magistrate felt that the only appropriate sentence in the case was to sentence the Appellant to 4 months in Siu Lam Psychiatric Centre.

5.The Appellant had applied for Legal Aid. Counsel instructed by Legal Aid very properly considered that there were no reasonable grounds for an appeal but is present in court to assist the Court if necessary.

6.I have looked at the papers. The learned Magistrate had considered all the necessary circumstances before sentencing the Appellant to a hospital order. The Appellant in appealing for herself advanced one ground of appeal and that is that she wanted to be reunited with her family as soon as possible.

7.There is no doubt that the Appellant need assistance and help psychiatrically and in the past, she had not helped herself by not attending outpatient psychiatric care and that has resulted in her having to serve a 4-month hospital order.

8.To cut a long story short, the ground advanced by the Appellant is not a good ground at all. When the sentence is a hospital order, the court considers what is of benefit to the Appellant and it is clear from the psychiatric reports that the only benefit or the only way to help the Appellant was a sentence of a hospital order and that is what the learned Magistrate did.

9.In the circumstances, I do not find that this was in anyway inappropriate. So there are no grounds to interfere with the learned Magistrate's sentence and so this appeal is therefore dismissed.

Representation:

Miss Winnie Lam Tak Wing, GG of Department of Justice, for the Respondent

Mr Gordon Wong, as assigned by Legal Aid Department, for the Appellant