Tong Pui-keung v. The Queen
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CACC001160/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 1160 OF 1979 -----------------
----------------- Coram: Silke, J. in Court. Date of Judgment: 4 January 1980 ----------------- JUDGMENT ----------------- 1. On the 26th October 1979 the appellant, Tong Pui Keung, appeared in Tsuen Wan Magistracy on a charge, brought under the provisions of Section 17 of the Summary Offences Ordinance, that he did on the 23rd October 1979 have in his possession two knives and a plastic pipe "fit for an unlawful purpose and was unable to give a satisfactory account of your possession thereof". 2. No plea was taken and the prosecutor intimated that the appellant might not be fit to plead and asked for a remand for a medical report. Two brief medical "chits", as they were described, were placed before the Learned Magistrate, one of these "chits" stated the appellant was an old case of schizophrenia, the other that he was an old patient of Castle Peak Mental Hospital and had relapsed into schizophrenia. 3. He was remanded in custody for a medical report. 4. On the 9th November 1979 the appellant again appeared, before another magistrate, in the same magistracy. 5. The record states "Reports received. Statement of facts received" it notes: "Informs the defendant", records the defendant as saying "I was in and out of hospital" and then the learned magistrate made a section 45 order for a period of three months. 6. In his statement of findings the learned magistrate stated himself to be satisfied that the requirements of section 45 (iii) (b) and (c) had been complied with. 7. I have no doubt that the section 45 order was made within the best of intentions - indeed it may be the right order - but I have considerable doubts, in the circumstances here, as to whether it should ever have been made. 8. Section 45 of the Mental Health Ordinance, in so far as it is relevant reads: (in its section 45 (1) (iii)) where a person is "charged before a magistrate with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission: ...". 9. "Satisfied" here, in my view, must be satisfaction on the ordinary criminal burden - beyond a reasonable doubt. That implies, at the least, a statement of agreed facts showing the person did the act or, preferably, that evidence was called so to show. Not, as here, the simple production by the Prosecution of a paper entitled "Brief Facts of Case". 10. The fact that the particular appellant here is not merely charged with possession but with being unable to give a satisfactory explanation complicates matters in the circumstances. 11. But be that as it may no agreed facts were produced and no evidence was called. 12. Section 45 goes on, in addition to the provisions of paragraph (a)(iii) of subsection (i), to state in paragraph (b) of that subsection that if the Court or magistrate is satisfied on the written or oral evidence of two registered medical practitioners received in accordance with the provisions of section 46 that (i) such person is a mentally disordered person; and (ii) the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Prisons Department Psychiatric Centre or a mental hospital for treatment; and (...(illegible)) the court or magistrate is of the opinion having regard to all the circumstances including the nature of the offence and the character and antecedent 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 an order under this section, the court or magistrate may make a hospital order. 13. A "mentally disordered person" is defined in section 2 of the Ordinance as "a person who is so far disabled in mind or who is so mentally ill or subnormal due to arrested or incomplete development of mind as to render it either necessary or expedient that he either for his own sake or in the public interest, should be placed and kept under control". 14. The two reports before the learned magistrate - Dr. Lo's of the 6th November and Dr. Leung's of the 7th November - both referred to the appellant as a known case of schizophrenia and to his previous period of hospital treatment. 15. Dr. Lo's report said on examination he was blunted in affect, speech evasive and woolly, florid symptoms of delusion, hallucination and thought disorder were present. 16. The opinion expressed was that the appellant was a long standing case of schizophrenia now in relapse. It went on "at the material time of the offence he was probably acting under the influence of mental derangement". A recommendation was made that a hospital order be made. 17. The report ends with the significant words "He is fit to plead". 18. Dr. Leung's report follows similar lines, though this says that "he was orientated and fully conscious. His memory was good". 19. The appellant gave an "explanation" for his possession of the implements. 20. The opinion expressed was similar to that of Dr. Lo, and contained the phrase "at the material time of the offence he is acting under defect of reason from disease of the mind". 21. Again the report ended with the significant words "He is fit to plead". Nowhere in the reports was a statement that his condition at the time the reports were made rendered it either necessary or expedient that the appellant be placed or kept under control. Indeed the fact that he was fit to plead - which must be taken to mean fully capable of understanding the proceedings in court, defending himself and therefore being at the least coherent and capable of proper reasoning, - strongly suggests the contrary. 22. Further section 46(3) provides that, in a situation such as this, when an accused is not represented, the substance of the report be disclosed to the accused and that the accused may require that the registered medical practitioner who signed the report be called to give oral evidence and evidence to rebut the report may be called by or on behalf of the accused. 23. It does not appear on the face of the record that these provisions were fully complied with in so far as the appellant was informed of them. 24. In the light of all these matters referred to I decided to remit the case to the learned trial magistrate, or to any of his brother magistrate should he not be available, for further consideration. 25. To shorten any delay I would direct that there be prepared and placed before whichever magistrate deals with the matter further and up-to-date medical reports from the doctors concerned. 26. The appellant will be remanded in prison custody - the Psychiatric Centre - until his appearance before the magistrate. 27. When the appellant first appeared before me I thought that, in view of the circumstances of this matter, he should be represented. 28. I am indebted to the Director of Legal Aid for the celerity with which he acted in making provision for Legal Aid and to Miss Leung, who appeared for the appellant on the instruction of Helen A. Lo & Co. , for the assistance she has given the court. Whether or not she will represent the appellant in his next appearance before a magistrate is a matter for the Director. 29. I would ask that priority be given in the magistracy to the hearing of this matter.
Representation: Miss J. Leong (D.L.A.) for appellant. Mr. Frank Wong for Crown - absent. |