HKSAR v. Fung Kam Dick Andrew

HCMA23/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.23 OF 2006

(ON APPEAL FROM KCCC 7083 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Dates of Hearing : 7 and 23 February 2006

Dates of Judgment : 7 and 23 February 2006

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J U D G M E N T

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7 February 2006

1.The appellant, who appears in person, appeals against his conviction on 12 November 2005 at Kowloon City Magistrates’ Court of the offence of “Possession of an offensive weapon”, contrary to section 17 of the Summary Offences Ordinance, Cap. 228.

2.Following the appellant’s conviction the magistrate, having obtained reports from two psychiatrists, on 28 November 2005 ordered that the appellant be made the subject of a hospital order under section 45 of the Mental Health Ordinance for a period of 4 months.

3.Although the appellant now appeals against his conviction, he pleaded guilty to the charge when he appeared before the magistrate.

4.The magistrate had taken the view that he was fit to plead.  It is significant that the two psychiatrists who subsequently reported on his condition also took the same view.

5.There was nothing equivocal about the appellant’s plea.  He repeatedly stated that he wanted to plead guilty before he finally entered that plea.  The magistrate on no less than three occasions had suggested that he seek legal advice before entering his plea but the appellant insisted on pleading guilty.  When the charge was read to him the appellant stated that he understood the charge.  He said that he appreciated that the offence was a serious one.

6.It is settled law that a person convicted of an offence by his own unequivocal plea of guilty cannot appeal against his conviction pursuant to section 113(1) of the Magistrates Ordinance, Cap. 227, unless his plea of guilty is a nullity.

7.The Court of Appeal in HKSAR v. Wong Chi Yuk [2000] 2 HKC 158 at 168 has laid down the situations in which an unequivocal plea of guilty might be said to be a nullity.

8.The first two grounds of appeal advanced by the appellant relate to the admissions he made to the police.  He says that firstly he was not cautioned and secondly he was told by the police that his statements to them were informal.

9.Neither of these matters, even if true, would fall within the situations referred to in Wong Chi Yuk as nullifying an unequivocal guilty plea by the appellant.

10.One of the situations which might nullify an unequivocal plea of guilty would be if the plea was induced by misrepresentation.  The appellant’s third and final ground of appeal is just that.  On his account at the Magistrate’s Court he had asked “a lady in a black dress” if there would be a jail sentence and no follow-up and she had said “yes”.  By “follow-up” the appellant was referring to any continued detention under the provisions of the Mental Health Ordinance.  From his description of where this lady sat and the role played by her, it can only have been the prosecutor to whom he was referring.

11.It is fanciful to suggest that the prosecutor would have misrepresented to the appellant that he would simply receive a jail sentence.  It was obvious from what the prosecutor was saying to the magistrate before plea was entered, and would have been apparent to the appellant, that she was suggesting that the appellant be remanded to Siu Lam not simply for a report as to his fitness to plead but also with a view to a recommendation as to his treatment.  She even told the magistrate that the appellant’s mother asked for him to be sent for treatment.  While the appellant may have been hoping that by pleading guilty he might receive a simple jail sentence I am satisfied that no misrepresentation was made to him that that would be the case.  There is therefore nothing in his ground of appeal.

12.Although not raised by the appellant there are circumstances on the record which do raise the issue as to whether his plea of guilty was a nullity.

13.Among the circumstances referred to in Wong Chi Yuk which might nullify an unequivocal plea of guilty are circumstances where :

(1)     the facts admitted by the defendant do not amount to the offences with which he is charged; or

(2)     the admitted facts are equivocal as to guilt.

14.The facts that were related to the appellant by the magistrate were as follows :

“      At 0518 hours on 11^th November 2005, PW1-2 patrolled past No. 12 Salisbury Road, Tsim Sha Tsui, Kowloon and saw Deft sitting outside Palace Mall.  PW1 then intercepted Deft.  Upon enquiry, Deft was reluctant to answer questions put to him.  A search conducted on Deft’s waist bag (E1) with one scissors (E2) and two screwdrivers (E3) found contained therein.  Upon enquiry, Deft claimed the tools were used for self defence as he was fear that he would be attacked by men or dog while walking in street.  PW1 then arrested Deft for above offence.  Under caution, Deft claimed, ‘I noticed it was unlawful but you would not understand me.’

2.    Deft was charged with the offence by undersigned on 11^th November 2005.”

15.The magistrate, whose earlier suggestions that the appellant seek legal advice before entering a plea had been rejected, now faced some difficulty in ascertaining from the appellant whether he admitted the facts.  After failing to obtain a straight answer from the appellant there was then this exchange :

“COURT:  Right.  But I also have to be satisfied that the facts support that charge and that plea of guilty.  Now, I have summarised the facts, are those facts correct or not?

DEFENDANT:  Ah, they’re grossly — they’re grossly untrue.  They’re — and — but many of them are quite unfound, they’re just distort, I think, yes.

COURT:  Do you agree that you had the items in your possession?

DEFENDANT:  Oh, definitely, but they are not — I gave it to them, in fact, they are in their own …

COURT:  Right.

DEFENDANT:  I give -- I …

COURT:  But they were in your possession?

DEFENDANT:  Well, really they asked me -- well, I had them; I gave it to them.

COURT:  Yes.

DEFENDANT:  In all certainty, yes.

COURT:  Right.  So that they had been in your possession …

DEFENDANT:  True.

COURT:  … and you gave them to the police.

DEFENDANT:  Yes.

COURT:  Did you say that they were for self-defence?

DEFENDANT:  Yes.

COURT:  In which case, those facts would support your plea of guilty.”

16.In his Statement of Findings the magistrate said this :

“I was content to accept the plea of guilty from the appellant; it is trite law that weapons cannot be carried in self-defence when there is no immediate fear of attack and when a person has only a generalised fear of assault in the future. …”

17.This is undoubtedly a correct statement of the law had the appellant been charged with an offence under section 33 of the Public Order Ordinance, Cap. 245 which provides that :

“Any person who, without lawful authority or reasonable excuse, has with him in any public place any offensive weapon shall be guilty of an offence …”

18.In considering a similar provision in section 1(1) of the Prevention of Crimes Act 1953 where the offence consisted of possessing an offensive weapon “without lawful authority or reasonable excuse” in the case of Evans v. Hughes, 56 Cr.App. R. 813 Widgery LCJ said :

“It may be a reasonable excuse for the carrying of an offensive weapon that the carrier is in anticipation of imminent attack and is carrying it for his own personal defence, but what is abundantly clear to my mind is that this Act never intended to sanction the permanent or constant carrying of an offensive weapon merely because of some constant or enduring supposed or actual threat or danger to the carrier.”

19.The provisions of the offence under section 17 of the Summary Offences Ordinance, Cap. 228 with which the appellant was charged are significantly different.  These required proof, firstly, that the appellant was in possession of an offensive weapon and secondly, that he intended to use the same for an unlawful purpose.  The concept of possession “without lawful authority or reasonable excuse” does not arise.  The magistrate was perfectly entitled to accept that what the appellant had in his possession were offensive weapons.  The scissors and the screwdrivers were not offensive weapons per se but based upon the appellant’s admission that he had them for self-defence, the magistrate was entitled to accept that the appellant must have intended to use them for causing injury to the person (see Patterson v. Block, 1984 Law Society Gazette 2458).  There was however no admission by the appellant of the second element of the offence namely an “intent to use the (weapons) for an unlawful purpose”.  If as the appellant admitted he only intended to use the items for self-defence he did not intend to use them for an unlawful purpose.

20.This is therefore a case in which the facts admitted by the defendant do not amount to the offence with which he was charged.  Clearly then his conviction for the offence under section 17 of the Summary Offences Ordinance, Cap. 228, cannot stand and must be quashed.

21.That however is not an end to the matter because under section 119 of the Magistrates Ordinance, Cap. 227 this court has power to make such order as it thinks fit and by such order exercise any power which the magistrate might have exercised.

22.The magistrate had the power under section 45(1)(a)(iii) of the Mental Health Ordinance, Cap. 136 to make a hospital order if the appellant was charged with an act which was otherwise punishable on summary conviction by imprisonment and the magistrate was satisfied that the appellant did the act complained of and the requirements of section 45(1)(b) and (c) were satisfied.

23.I am satisfied that the appellant did the act complained of.  In order to consider whether I should make a hospital order, I therefore call for reports from two registered medical psychiatrists as to whether the appellant is still a relatively disordered person and whether the nature or degree of his mental order still warrants his detention in a CSD Psychiatric Centre or mental hospital for treatment and, if so, for how much longer.

24.I remand the appellant in custody for that purpose until 23 February 2006 at 10 a.m.

20 February 2006

25.I have now read the new report from Dr Robyn Ho dated 17 February 2006 and the new report from Dr S.H. Lui dated 14 February 2006.  Their original recommendation that the appellant be the subject of a four months’ hospital order under section 45 of the Mental Health Ordinance was accepted by the magistrate.

26.Unfortunately it appeared that despite treatment at Siu Lam Psychiatric Centre, the schizophrenia from which the appellant suffers is far from being under control.  In-patient treatment is still very necessary for the health and safety of the defendant as well as others.  Under psychotic influence the appellant has a high propensity to violence and his acts are unpredictable.  While Dr Lui recommends that the appellant should continue to receive treatment in hospital without specifying a particular period, Dr Ho says that the appellant is likely to need inpatient treatment for at least another six months.

27.Undoubtedly the conditions under section 45(1)(b) of the Mental Health Ordinance which led to the magistrate making a hospital order are still present and the appellant should continue to be subject to such an order.

28.The appellant has not appealed against his sentence, but in light of the fact that I have quashed the appellant’s conviction the basis upon which the magistrate made the hospital order and which is expressly referred to in the order (namely conviction for an offence) has gone.

29.As I said in my judgment on 7 February, I am satisfied that I have the power to make such an order under the terms of section 45(1)(iii) of the Mental Health Ordinance and section 119(1)(d) of the Magistrates Ordinance on the basis that the appellant did the act complained of.

30.In my view, bearing in mind the appellant’s current mental condition and prognosis I would be failing in my duty to protect the interests of both the public and the appellant simply to make a fresh hospital order with the term representing the balance of the terms of the original order made by the magistrate.  As I have said, Dr Ho says the appellant is likely to need inpatient treatment for at least another six months.  On the other hand I must bear in mind that the appellant has been successful in his appeal against conviction and has not appealed against sentence.

31.Balancing these factors and bearing in mind the other powers available to the authorities under the Mental Health Ordinance in appropriate circumstances, I have come to the conclusion that it would be appropriate for me to make a fresh hospital order of the same duration of that made by the magistrate, namely four months, effective today.

32.I make such an order.

Ms Polly Wong, SGC, of the Department of Public Prosecutions

Defendant in person