HKSAR v. Cheung Ming Tat

HCMA881/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.881 OF 2006

(ON APPEAL FROM KCCC 4525 OF 2006)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 17 October 2005

Date of Judgment : 17 October 2005

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of Begging alms, contrary to s.26A of the Summary Offences Ordinance, Cap. 228.  He was sentenced to a Hospital Order for three months under s.45 Mental Health Ordinance, Cap. 136.  He now appeals against both conviction and sentence.

Prosecution case

2.The prosecution case is that the appellant was spotted by a police sergeant sitting on the pavement outside 138 Nathan Road with a plastic box placed in front of him.  When a passer-by walked past and dropped a coin into the box, the appellant nodded and thanked him.  The police sergeant went up and made enquiries with the appellant.  During the conversation the appellant alleged to have been persecuted by the police and he was eventually arrested.

3.The appellant elected to give evidence.  He testified to the effect that he was there to beg for alms and went on to say that he was under financial pressure.

Grounds of appeal

4.The ground advanced today by the appellant is that the evidence did not support the conviction.  He relied on a wrongly typed name in a document called the Brief Facts to say the prosecution was a nullity.  The appellant also said that the offence that he was convicted of being a minor one, the three months’ Hospital Order sentence was excessive and disproportionate to the severity of the offence.

Respondent’s reply

5.Counsel for the respondent submitted that the appellant himself testified to the effect that he was there begging alms, and in fact what he said was largely in line with the prosecution case.  His excuse of financial pressure was no defence.  Although his name was incorrectly typed in the Brief Facts, it was submitted that all other documents including the charge sheet and also psychiatrist reports got the appellant’s name correct.  That would not render prosecution a nullity.

6.It was further submitted that according to contents of the psychiatrist’s report, the appellant suffered from paranoid schizophrenia and the magistrate was right in sentencing the appellant to a hospital order.  However, after I pointed out to counsel about the restriction in the Ordinance, counsel for the respondent came to terms with the fact that the magistrate could not make the order for the period he did.

My judgment

7.The appellant had, by his evidence, admitted to be begging alms at the location which was clearly a public place.  The magistrate correctly found the charge made out.  Although the appellant’s name in the Brief Facts was wrong, all other documents including charge sheet and psychiatrist report had his name correct.  The mistake in the Brief Facts is immaterial.  There is no merit in the grounds against conviction.  Appeal against conviction is dismissed.

Appeal against sentence

8.The appellant maintained that the HKSAR was killing its citizens by “brain-waves”.  According to reports of two psychiatrists, they were of the opinion that the appellant suffered from psychotic disorder, either Paranoid Schizophrenia or a Delusional Disorder.  The psychiatrists considered him an appropriate subject for a hospital order.  The magistrate took that into account.  This was already the appellant’s second offence of begging alms.  The magistrate had called for previous case file and found circumstances of the previous similar conviction similar to the present, similar allegation against the Chief Executive and the government murdering Hong Kong citizens were made (Appeal Bundle p. 23R).  The appellant is a person who clearly needs help and the magistrate was satisfied that he could benefit from a hospital order.

9.Section 45 of the Mental Health Ordinance, Cap. 136 provides that, when a person is convicted by a magistrate and the magistrate is of the opinion, having regard to all the circumstances including nature of the offence and the character and antecedents of such person, and to other available methods of dealing with him, that the most suitable method of disposing of the case is by means of a hospital order, the magistrate may made such an order and specify the duration of such.  However, it is also provided in the section that :

“... the period during which such person should be so detained shall not be greater than the sentence which the court or magistrate could have imposed in respect of the offence with which such person was charged.”

10.The maximum penalty for this offence, on first and second conviction, is $500’s fine and one month imprisonment.  This was the appellant’s second conviction, a hospital order for three months clearly exceeds the maximum sentence that could have been imposed in respect of this offence for this appellant.

11.I also observe that in both the magistrate’s oral reasons and his Statement of Findings he mentioned the order to be one of “a minimum of three months”, although Form 24, drawn up in accordance with s.28 of the Magistrates Ordinance, Cap. 227, ordered the appellant to be detained for three months in Siu Lam.  For reasons as seen in the judgment of HKSAR v. Lam Chung San, CACC93/2004, a hospital order specifying a minimum period is plainly wrong.

12.I have no doubt that the order made by the magistrate, although not permitted by law, was with the best of intention.  The appellant has been detained since 18 August 2006.  This appeal against sentence is allowed, I quash the three months’ hospital order and replaced it by a one-month hospital order.

Ms Janice Kwan, GC of the Department of Justice, for the Respondent

The Appellant, in person