HKSAR v. Chiu Yu To
Read the full judgment text of CACC 104/2000 on BabelCite. This Court of Appeal judgment was delivered on 27 June 2001 before Leong CJHC, Stuart-Moore VP and Keith JA.
Criminal law – robbery – sentencing – mental health – hospital order under s.45 Mental Health Ordinance (Cap 136) – probation order – appeal against sentence – applicant pleaded guilty to robbery of doctor at knife-point in clinic – armed robbery in which applicant produced driving licence, registered at reception counter, then demanded money from doctor, refused $800 offered, and remained on premises until police arrived – applicant subsequently diagnosed with paranoid schizophrenia – two government psychiatrists, Dr Ng and Dr Choi, recommended inpatient treatment of four to six months at Siu Lam Psychiatric Centre, finding applicant acted under influence of psychotic symptoms and committed offence believing imprisonment would be 'safer than at home' – sentencing judge characterised offence as 'familiar' and imposed four years' imprisonment after one-third discount from six-year starting point – whether sentencing judge erred in declining to make hospital order under s.45 of Mental Health Ordinance – held: yes, judge erred in exercise of discretion by not making hospital order – whether sentence manifestly excessive given undisputed psychiatric illness – held: yes, sentence was manifestly excessive and wrong in principle – court ordered fresh psychiatric reports and recommended transfer to Siu Lam Psychiatric Centre – fresh evidence from Dr Tso, Dr Wong and Dr Sung obtained after treatment with olanzapine showed slow but progressive improvement – Dr Tso ultimately opined further detention not warranted and hospital order not recommended, but advised continued maintenance medication and half-way house placement – court quashed sentence of four years' imprisonment and substituted probation order for twelve months with special conditions requiring admission to Chun Shek Halfway House for twelve months and psychiatric treatment, with applicant's consent – legal framework – s.45 Mental Health Ordinance modelled on s.37 Mental Health Act 1983 (England) which superseded s.60 Mental Health Act 1959 – established approach that mentally disordered offenders should be dealt with by treatment in hospital where possible, with imprisonment reserved for cases where hospital or probation order with treatment condition unsuitable – approach in R v Chan Kin and Tsui Chung-leung v R applied – sentencing judge had wide discretion but could be interfered with where discretion wrongly exercised or sentence manifestly excessive.
Legal issues: Failure to make a hospital order under s.45 Mental Health Ordinance · Whether sentence was manifestly excessive given psychiatric condition · Substitution of probation order on appeal
Outcome: Leave to appeal granted; appeal treated as the appeal; sentence of four years' imprisonment quashed and replaced with a probation order for twelve months.
Cited by 49 cases · Cites 1 case
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CACC000104/2000 CACC 104/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 104 OF 2000 (ON APPEAL FROM DCCC 1112 OF 1999) ______________
______________ Coram: Hon Leong CJHC, Stuart-Moore VP and Keith JA Dates of Hearing: 1 August 2000, 27 March 2001, 11 May 2001 and 27 June 2001 Date of Judgment: 27 June 2001 _______________ J U D G M E N T _______________ Stuart-Moore VP (giving the judgment of the Court): Introduction 1.On 25 January 2000, the Applicant pleaded guilty in the District Court before Judge Wright to a charge of robbery. The judge adjourned sentencing to 14 February 2000 for a psychiatric report to be prepared in the light of the mitigation which had been advanced. 2.A report written by Dr F.S. Ng was duly presented to the court on 14 February 2000. This indicated that the Applicant was suffering from paranoid schizophrenia and that inpatient treatment was not considered necessary at that stage. Nonetheless, the judge very sensibly further adjourned sentencing until 7 March 2000 in order to consider making a hospital order. For this purpose, a second report was required. This was duly provided by Dr L.P. Choi. 3.By 7 March 2000, Dr Ng had changed his mind about inpatient treatment not being required and, in a further report, he recommended that a hospital order of between four to six months in duration should be made. Dr Choi's report made the same recommendation. 4.In the event, the judge decided not to act upon the psychiatrists' recommendations. Instead, he sentenced the Applicant to four years' imprisonment, having discounted a starting point of six years by one-third to take into account the Applicant's plea and general cooperation. 5.The Applicant now seeks leave to appeal against his sentence. Prosecution's case 6.The case for the prosecution was straightforward although the offence might have been better described in its real effect as an attempted robbery. In brief, although we will need later to turn to other details, the Applicant visited a doctor in his consultation room on 4 October 1999 and, while there, he robbed the doctor at knife-point. When the doctor produced $800, the Applicant refused to accept the money and demanded more. 7.The Applicant was arrested at the scene by police. They had been informed about the offence by one of the doctor's staff while it was being committed. The Applicant admitted what he had done and gave as his reason that he was unemployed and short of money. Later that day, in a video-recorded interview, the Applicant gave the same account. He made no mention to police that he had been suffering from any mental problems. Judge's sentencing remarks 8.The judge, when passing sentence in the light of the psychiatric evidence before him, expressed the opinion that the "familiar" pattern of the robbery involved no suggestion of psychiatric illness on the part of the Applicant until a Dr Lam was consulted on 15 November 1999, about six weeks after the robbery. Dr Lam, whose report is set out in some detail in the judge's sentencing remarks, had been told by the Applicant that he had been hallucinating since September 1999. However, most of Dr Lam's report was, as the judge commented, concerned with events since the commission of the offence. Dr Lam's report concluded with the opinion that long-term treatment was required although hospitalisation was unnecessary. 9.The judge then summarised the history of the proceedings and referred to the reports prepared by Dr Ng and Dr Choi. The judge set out the terms of section 45(1)(c) of the Mental Health Ordinance, Cap. 136, ("the Ordinance") to which we shall turn in more detail later. He was plainly aware of the discretion which was vested in him to make a hospital order if he decided that such a course was the most suitable method of disposing of the case. 10.As to the Applicant's general background, the judge described him as a forty-one-year-old unmarried man with an "unremarkable" history. He had one recent previous conviction for assault in September 1998. One other relevant factor was that late in 1998, following a road accident in China, he had become unemployed which, as the judge remarked, would have accounted for the Applicant's shortage of money. 11.Taking into account the psychiatric reports before him, the judge said:
12.It is apparent from these remarks that the judge was, as we have said, fully conversant with the discretion vested in him. It follows, therefore, that unless it could be demonstrated that the judge wrongly applied his discretion, it would be most unlikely that we would interfere with the course he adopted. Grounds of appeal 13.When this matter originally came before the court on 1 August 2000, Mr McCoy, SC, submitted that the sentence, set against the background of the Applicant's undoubted psychiatric illness, was manifestly excessive and wrong in principle. In particular, he contended that the judge had not adequately considered the exercise of his discretion to impose a hospital order when two Government psychiatrists were in agreement that such an order was the most suitable way to deal with the Applicant. 14.Mr McCoy also submitted that the judge had fallen into error by indirectly suggesting that the onset of the Applicant's mental illness came about only after the commission of the offence. This conclusion, he argued, had wrongly led the judge to decide that punishment, rather than treatment in a hospital, was the proper way in which to deal with the Applicant. It was pointed out that the judge's opinion had been in sharp contrast to the opinion of Dr Ng who had concluded that the Applicant was "harbouring active psychotic symptoms" at the time of the offence, and the opinion of Dr Choi who said that the Applicant was "under the influence of psychotic symptoms" which had distressed him and influenced "his ability to cope". Criticisms of the judge's conclusion that this was a "familiar" robbery 15.There is no doubt that the judge was considerably swayed in his approach to sentence by the view he had taken that this was a robbery "somewhat familiar in matters of this nature". Plainly, an armed robbery of this kind would normally call for the sort of sentence the judge had in mind. There was a striking difference between imprisonment with a starting point of six years and a short hospital order which appeared to have been contemplated by Doctors Ng and Choi. On any view the judge's task was a most difficult one. 16.There were, however, a number of features relating to the offence itself which the judge may have overlooked when he came to consider whether the robbery really fitted the usual pattern to be expected in cases of this kind. We can say this because the judge made no special mention of certain aspects of the case which tend to show that this was far from the normal or "familiar" robbery. Mr McCoy characterised the robbery as "bizarre" and, for the reasons which follow, we found ourselves in general agreement with him. 17.Earlier in the judgment, we said we would need to return to some further details about the commission of the offence. There are two, in particular, which are worthy of mention. Firstly, on arrival at the clinic where the doctor who became the victim of this robbery worked, the Applicant produced his driving licence, as evidence of his identity, to a nurse who was working at the reception counter. He additionally provided his residential address where he lived with his mother. The Applicant's particulars were noted in writing on a registration form before he sat down to await his turn in the victim's consultation room. 18.The second oddity concerning the robbery, leaving aside the fact that the Applicant never physically took the $800 handed over to him by the victim, was that the Applicant remained on the premises for a considerable time after the offence had been committed, with the result that he was still there when police arrived. The summary of facts reveals that he had arrived at the clinic at 5.15 p.m. on 4 October 1999. After the registration process had been completed, he waited a short time before going into the consultation room. Police arrived there, and arrested the Applicant, at about 5.28 p.m. The Applicant then gave himself up without any fuss and was cooperative throughout the time he was under investigation by the police. 19.These two unusual features of the robbery cannot, however, be looked at in isolation because it is when they are set against some of the findings made by the psychiatrists, which were included in the reports before the sentencing judge, that they take on a greater significance. Dr Ng wrote about the Applicant that:
20.Dr Ng also found that the Applicant had limited insight towards his mental problem, a view which was shared by Dr Choi. Significantly, therefore, if he was only to a limited degree able to comprehend the nature or extent of his illness, this would explain why the Applicant might well not have spoken about his mental state to the police or anyone else until much later. It may be that the judge had overlooked this possibility when tacitly expressing reservations about how ill the Applicant really was at the time of the offence. 21.Dr Choi's description of the account given by the Applicant was that:
22.As we have said already, both psychiatrists were in agreement that the Applicant appeared to have acted, at the time of the offence, under the influence of psychotic symptoms. They also agreed that inpatient treatment at Siu Lam Psychiatric Centre was required. There was evidence before the sentencing judge that a bed was available in the event that he decided to make a hospital order. Section 45 hospital order 23.Section 45(1) of the Ordinance governs the making of a hospital order. This empowers the court to make a hospital order where:
24.This section is set out in very similar terms to section 37 of the Mental Health Act, 1983, which in England superseded section 60 of the Mental Health Act 1959 on which the Hong Kong Ordinance was modelled. Bearing this in mind, Mr Reading, SC, on the Respondent's behalf, most helpfully referred this court to a number of English and Hong Kong decisions which demonstrate that the reasons given in the English courts for the making of hospital orders have been in large measure adopted by the Court of Appeal in Hong Kong. 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:
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:
27.In Chan Kin's case, where an unspecified period of treatment had been imposed, the court immediately went on to consider the circumstances in which hospital orders for unlimited duration should be made by citing part of the judgment in Tsui Chung-leung v R, CACC 414/1979 (unreported) where Sir Denys Roberts CJ said:
28.On any view, the psychiatrists in the present case were recommending short-term rather than long-term treatment. Adjournment for further reports 29.Whilst there was no mandatory requirement for the judge to have made a hospital order merely because the psychiatrists were agreed that this was the most suitable method of disposing of the case, when this application first came before this court we felt that on balance the judge may have erred in the exercise of his discretion by not having made such an order. With this in mind, we ordered fresh psychiatric reports and we strongly recommended that the Applicant should meanwhile be transferred to Siu Lam Psychiatric Centre for the purposes of assessment. Fresh psychiatric evidence 30.Dr Steve Tso and Dr Y.C. Wong prepared further psychiatric reports in October 2000 while the Applicant was being treated at Siu Lam Psychiatric Centre. The reports were at that time in agreement that "at least six months" would be needed for the Applicant's treatment. The psychiatrists were concerned about the Applicant's suicidal tendency which, as Dr Tso stated, was "not uncommon among chronic schizophrenic patients". Dr Wong stated that the Applicant had "no insight" into his mental illness. 31.We were later served with a report from Dr Sung Wing-kuen dated 22 March 2001. He reported, following examinations of the Applicant on 6 and 19 March 2001, that the Applicant was:
32.When the matter was eventually re-listed before this court on 27 March 2001, we heard evidence from Doctors Wong and Sung. However, it soon became apparent that we would need to hear from Dr Steve Tso as he had been in overall charge of the Applicant's treatment and only he could realistically provide a firm opinion as to the proper course to be adopted in the Applicant's treatment for the future. As he was then overseas, the matter unfortunately had to be adjourned once again. 33.In due course, we were provided by Dr Tso with a report dated 26 April 2001. In this, he stated that a new antipsychotic drug called "olanzapine' has been given to the Applicant with the result that he had shown "slow but progressive improvement" in his mental state. The Applicant no longer harboured suicidal thoughts. In his opinion:
34.Before Dr Tso confirmed his written opinion in court on 11 May 2001 (when the matter was next listed), we had made a request for a probation report in order to see whether the Applicant could be admitted to a half-way house which was suitable for someone in the Applicant's state of mind. 35.A most comprehensive and helpful probation report was then prepared by Ms Pang Fung-cheung, to whom we express our gratitude for having undertaken this task at short notice. She made visits to see the Applicant at Siu Lam on 4 May and 9 May 2001. For reasons which no longer matter, Ms Pang felt unable to recommend a probation order for the Applicant at that time. However, since then, Dr Tso has arranged for the Applicant to be admitted to Chun Shek Halfway House which he has confirmed today. This is geared to those who are suffering from some mental illness. On this basis, Ms Pang accepts that a probation order with special conditions could properly be made. Probation Order 36.The Applicant, having today had the full effect of a probation order explained to him and the particular terms which we propose to apply in his case, has given his consent to such an order being made. Conclusion 37.Accordingly we propose to give leave and, treating the hearing as the appeal, we shall quash the sentence of four years' imprisonment. In its place, we shall make a probation order for twelve months with the special conditions attached that the Applicant:
The usual conditions of a probation order have been explained to the Applicant, together with the possible consequences of a failure to adhere to them, and he has agreed to be bound by them. 38.Before we leave this case, we would like once more to express our gratitude to Dr Steve Tso and to Ms Pang Fung-cheung for the very considerable assistance that each one of them has given to this court.
Representation: Mr John Reading, SC, DDPP and Miss Laura Ng, GC, of the Department of Justice, for the Respondent. Mr G. McCoy, SC and Ms Corina Tai, instructed by Messrs Chan, Lau and Wai, for the Applicant for the hearing on 1 August 2000. Mr Andrew Bruce, SC, instructed by Messrs Chan, Lau and Wai for the Applicant for the hearings on 27 March 2001, 11 May 2001 and 27 June 2001. |
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