HKSAR v. Poon Shing Wai

HCMA889/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.889 OF 2005

(ON APPEAL FROM TMCC 2345 AND 2170 OF 2005)

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BETWEEN

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J U D G M E N T

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1.The appellant Poon Shing Wai was charged before a magistrate with two offences of “Assault Occasioning Actual Bodily Harm” contrary to Common Law and punishable under section 39 of the Offence Against the Person Ordinance, Cap. 212. He pleaded not guilty. The learned magistrate was satisfied that the appellant did the acts which amounted to the said offences and the learned magistrate adjudged that the appellant be committed to a hospital under section 45(1)  of the Mental Health Ordinance, Cap. 136 for a period of 12 months. He now appeals against the sentence.

Facts

2.The facts disclosed that the appellant was a patient at the Castle Peak Hospital.  He admitted the facts of two assaults occasioning actual bodily harm at the hospital, the first on a member of the staff on 1 July 2005 and the second on another patient on 21 July 2005.  The first assault consisted of punching and struggling, the second hitting the head of the victim with a hot water pot.

Reasons for sentence

3.The learned magistrate considered and accepted the recommendation of two psychiatrists from the Siu Lam Psychiatric Centre.  The appellant was suffering from a mental disorder rendering him liable to outbursts of violence.  There was a very high probability of future violence.  His condition was amenable to treatment and both doctors recommended detention as an in-patient of not less than 12 months.

4.The learned magistrate declined to direct the proviso to section 47(2)  (i.e. restricting release without the authority of the Chief Executive)  not to apply.  He made that decision after considering all the circumstances of the case, particularly the potential for future violence and in the absence of any medical recommendation that the restriction be lifted.

Grounds of appeal

5.The appellant was granted legal aid but Mr Ching Wan Fung of counsel could not advance any arguable grounds of appeal against sentence.  As the appellant is a mental patient Mr Ching was briefed to attend the hearing to assist the court.

6.The appellant advanced one ground of appeal.  He said there was a fellow inmate inside the Castle Peak Hospital who was also convicted of assault occasioning actual bodily harm on two persons, i.e. a doctor and a nurse, and that inmate was only committed to a hospital for 6 months.  The appellant felt that being committed to 12 months is too long in his case.

Respondent’s response

7.Ms Winsome Chan, Senior Government Counsel of Department of Justice opposed the application.  In her written submission she referred to two authorities : HKSAR v. Lam Chung San, CACC93/2004 and HKSAR v. Fan Wai Kong, CACC475/2004, and submitted that the order made by the learned magistrate was entirely proper.

Judgment

8.I entirely agree with the observation of Ms Chan.  The learned magistrate had fully considered two psychiatrists’ reports before making the order.  The fact that different accused before different judges on different occasions receive different sentences for the same offence is not a ground of appeal.  In the present case, the only consideration is whether the sentence imposed is a proper one.  The sentence is entirely proper here.  There is no merit on the appeal.

9.The appeal is dismissed.

Ms Chan Suk Wai Winsome, SGC of Department of Justice, for HKSAR

Mr Ching Wan Fung, assigned by DLA to assist Court only

Appellant in person