Tam Kii-nin v. The Queen

CACC001123/1981

[Hospital order - standard of proof required - whether rules of evidence apply.

Brief Facts of Case - use that may be made of.]

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1123 OF 1981

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BETWEEN

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Coram: O'Connor, J.

Date: 17 February 1982

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J U D G ME N T

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1. This is an appeal against a hospital order made under S.45 of the Mental Health Ordinance Cap. 136. The appellant was charged with public mischief and brought before a magistrate. The charge was put to him and he pleaded not guilty.  The case was adjourned for trial and he was released on bail. On the day fixed for trial the learned magistrate thought the appellant appeared to be mentally ill so he remanded him, under S.51(1) of Cap. 136, to a mental hospital for psychiatric reports.  When the matter next came before the learned magistrate he was in possession of two psychiatric reports, recommending that the appellant be treated in a mental hospital for 4 months.  The magistrate thereupon made an order for the detention of the appellant in such a home for that period.  From a perusal of the record it appears that the appellant was not informed of the substance of the reports, as he ought to have been, in accordance with S.46(3).

2. However there is a more serious aspect to the matter.  It is provided by S.45(1) that an order for detention in a mental home may be made provided certain conditions have been satisfied. The one we are concerned with is S.45(1)(a)(iii) which creates as a condition precedent to the order, that the magistrate is satisfied that the person, proposed to be the subject of the order, did the act or made the omission with which he is charged.   There was absolutely no evidence of that before the learned magistrate.  The learned magistrate, in his statement of findings, says he took the view that the document entitled Brief Facts of the Case, together with the recommendations of the  doctors was sufficient to warrant his making the order. It was not. The document, Brief Facts of the Case is not evidence at all, and cannot be acted upon unless there is an admission as to its truth. It is simply a hearsay document which may take the place of a prosecutor's opening, or may in the event of a plea of guilty, form the basis of agreed facts for sentencing. It ought I not to even be before the magistrate unless it is also before the defendant.  I have noticed in a number of cases that this document is in the file though it never seems to have been put before the defendant.  There should be no secret communications before the prosecutor and the magistrate. I hope the practice of placing such a document before a magistrate or in his file will cease, unless it has been used as an opening address, in a contested trial, or it has been agreed.

3. The above matters are sufficient grounds for allowing the appeal. However I have been pressed to express my views as to what is the standard of proof required before a magistrate could be satisfied, for the purposes of S.45(1)(a)(iii) that the defendant did the act or made the omission required and as to whether the rules of evidence apply. I express my views with hesitation, in the knowledge they are obiter.

4. A detention order under S.45 disposes of the charge for once and for all. It would have the same effect as a conviction or acquittal, in so far as the possibility of further proceedings are concerned. The detention order may be for any period not exceeding the length of sentence which could have been imposed following a conviction. From a consideration of those factors it would appear that the order is not an interlocutory order but is one aimed at the final determination of criminal proceedings in a manner resulting in incarceration of the defendant. One would expect that the standard of proof required would be the standard in criminal cases, and that the rules of evidence would apply.

5. I find confirmation for that view in a consideration of the terms of S.51. That section provides for an interlocutory remand if the magistrate 'is of the opinion' that the defendant may be mentally disordered. However in order to make a detention order, finally disposing of the case, the magistrate has 'to be satisfied' the defendant did the act or made the omission.  Of course the word 'satisfied' taken by itself may denote either the criminal standard or the civil standard of proof. However it seems to me that 'satisfied' denotes a higher degree of conviction than 'is of the opinion', and in my view one could not be 'of the opinion' unless he thought the matter more probable than not. I therefore conclude that in S.45 the word 'satisfied' means satisfied beyond reasonable doubt.

6. I consider that the rules of evidence also apply. If they did not S.46 which deals with the receipt into evidence of medical reports, would be otiose.

Representation:

A.M. Niamatullah (D.L.A.) for the appellant

S.R. Mason-Parker, Crown Counsel, for the Crown/respondent