HKSAR v. Lee Wong Chiu

CACC 282/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 282 OF 2008

(ON APPEAL FROM DCCC NO. 392 OF 2008)

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Before : Hon Stock JA and Beeson J in Court

Date of Hearing :   3 February 2009

Date of Judgment  :   3 February 2009 

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court) :

1.On 7 August 2008, Deputy Judge Glass in the District Court made a hospital order in respect of this applicant, pursuant to the provisions of s.45 of the Mental Health Ordinance, Cap. 136, but without any limitation of time on the period of detention.  The applicant seeks leave to appeal against that order.  He is represented by Mr. Kwan who does not offer argument against the order made but is present to be of such assistance to the applicant and to the court as may be required.

2.We have, in any event, heard from the applicant in person.

3.The applicant pleaded guilty to an offence of robbery which took place in April 2008.  The victim of that offence was a prostitute whose flat the applicant visited.  He stole from her the sum of HK$700, using violence to do so, which violence took the form of grabbing hold of her neck and delivery a kick to her private parts.  He returned later that day with two other males – for what purpose is not clear – but he was arrested by the police whom the victim had called.

4.At the time of the offence the applicant was aged 18 years and a person of no previous convictions.  He is now aged 19.  His history shows that he has suffered from mental illness since the age of about 12 years and continues to do so.

5.The judge had the advantage of psychiatric reports from two psychiatrists who had examined him at Siu Lam Psychiatric Centre.  One of the reports recorded that he had a history of violent behaviour towards his mother and both psychiatrists concluded that he was suffering from schizophrenia.  One of the psychiatrists referred to it as a “bad case of schizophrenia”, and another as “early onset schizophrenia”.  Each recommended a hospital order for a period of six months.

6.The judge was concerned however by his history, which included psychotic symptoms, and in particular by the fact that the doctors had not said in their reports that they confidently expected the applicant to be fit for release within a specified time.  He had in mind a decision of this Court, differently constituted, in HKSAR v Wan Pak Sing [2004] 3 HKC 283, which applied R v Tsui Chun Leung [1977-1979] HKC 419.  In the earlier case, the Court said that it was proper for a court to issue a mental health order without any period specified, unless the medical opinion of psychiatric specialists who had examined the patient was to the effect that the patient could confidently be expected to be fit for release within a specified period.  The Court added that if doctors were not able to express that degree of confidence, it was wiser, both in the interest of the patient and for the protection of the public, that the order should have no term attached to it.

7.We are satisfied that the judge took the correct path.

8.We have received an up-to-date report from one of the experts, Dr. Choi, a visiting consultant psychiatrist at the Centre, who last examined the applicant on 13 January 2009.  His conclusion is that there has been no improvement in the applicant’s mental state and attitude and that “for his own safety, as well as for protection of the others, I think he still needs further period of detention, for compulsory inpatient treatment.  The date of discharge, and whether he needs to be discharged under conditions, will be determined by the future Mental Health Review Tribunal”.

9.The applicant has addressed us saying that he had a clear mind when he committed the offence.  He had the power to control himself; he had no previous convictions; and he wants a chance.

10.The fact remains the offence was itself serious, but more particularly in these circumstances, for his own interests and for the interest of the public, he continues to need treatment.

11.We are satisfied, in the circumstances, that the order when made was correct and that there have arisen no factors which justify the substitution of a different order or sentence.  Accordingly, the application for leave to appeal against sentence dismissed.

Mr. Kwan Tong Lee assigned by Director of Legal Aid for the Applicant

Ms. Mary Sin, SADPP of the Department of Justice for the Respondent