Yun Tak Kan v. The Queen
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CACC001128/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1128 OF 1974 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 27th December 1974. ----------------- JUDGMENT ----------------- 1. The Appellant was charged before the magistrate on two charges of theft. He was tried and convicted and now appeals against his convictions. 2. When he first came before the magistrate a question arose as to whether he was fit to plead. He had previously, on 14th October, been remanded in hospital custody, he being then detained in hospital. On 21st October the Appellant's father reported that he had a history of mental upset and the learned magistrate very properly adjourned the case for a psychiatric report. It is not very clear when the Appellant next came before the court because the next entry on the record is not dated. The record states, however, that the psychiatric report indicated the Defendant was fit to plead. The first psychiatric report on the record is dated 1st November. While that report does state that the Appellant was fit to plead there was a contradiction in the previous paragraph which stated:
However, in reliance upon the final paragraph another magistrate proceeded with the trial. During the course of the trial that magistrate had some anxieties about the Appellant's state of health and he obtained further psychiatric reports. Those reports did not deal directly with the question whether the Appellant was able to understand the nature of the proceedings, but there are three reports (including one from the psychiatrist who gave the first report) and each of these three reports raises grave doubts about the Appellant's mental health. However, the learned magistrate went on with the trial and, having convicted, made an order under s.45 of the Mental Health Ordinance. 3. Counsel for the Crown before me has very properly raised the question whether the trial ought to have proceeded and I have come to the conclusion that it is unsafe to allow these convictions to stand. I think that when he was faced with these further reports the learned magistrate ought to have considered the question whether the Appellant was at that time able to understand the nature of the proceedings. Had he done so there is strong reason to believe that he might have come to the conclusion that the Appellant was no longer in a state to conduct his defence. 4. I, therefore, say nothing about the actual trial and the evidence which was adduced. This appeal must be allowed and the conviction set aside and the proper course, I think, is that this case be remitted to the magistrate's court for trial de novo. The first question to be decided is whether or not the Appellant is fit to plead, and he must remain fit to plead throughout any trial that may ensue. Further reports will no doubt have to be obtained and it may be that oral evidence ought to be taken. Whether the prosecution will see fit to proceed with the case even though the Appellant is fit to plead is not a matter upon which I wish to say anything. I am told that arrangements can be made for the Appellant to be taken before a magistrate today and I think that this is what ought to be done. He will be remanded in police custody for that purpose. 27th December 1974. Representation: |