HKSAR v. Hon Chun Key

CACC000124/2001

CACC 124/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 124 OF 2001

(ON APPEAL FROM DCCC 1178 OF 2000)

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Coram: Hon Stuart-Moore VP and Suffiad J

Date of Hearing: 21 December 2001

Date of Judgment: 21 December 2001

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1.On 9 March 2001, following a trial before Judge Wright in the District Court, the Applicant was convicted of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap. 212. The offence occurred in Castle Peak Hospital on 3 November 2000. The female victim worked there as a cashier and, after what seems to have been a trivial disagreement with the Applicant, she was attacked by the Applicant who had armed himself with a table knife. Fortunately, the injury received by the victim was relatively minor.

2.On 23 March 2001, the judge made a Hospital Order under section 45 of the Mental Health Ordinance, Cap. 136, for an indefinite period, directing that the Applicant should be detained in the Siu Lam Correctional Services Psychiatric Centre. It is against this order that the Applicant now seeks leave to appeal. He has asked this court to consider giving him a sentence which limits the period of his incarceration.

3.The Applicant's unhappy past history was encapsulated in the judge's Reasons for Sentence when he said:

"The Accused is a man with certain serious problems. He has been found to have a mild grade of mental retardation. In addition to this he suffers from an insulin dependent form of diabetes. He came to Hong Kong on his own at the age of 14 and appears, effectively, for some years prior to events to which I shall turn in a moment, to have been in Hong Kong.

Late in 1982 he was hospitalized in Castle Peak Hospital for a period of some 10 months. That took him to June 1983. Shortly thereafter he killed his neighbour during a conflict by using a hammer. He was convicted of manslaughter and ordered to serve a hospital order of unspecified period in Siu Lam Psychiatric Centre. A sentence of that nature attracts the attention of the Mental Health Review Tribunal and in 1994 he was transferred from Siu Lam to Castle Peak Hospital where he has been resident ever since. Since then he has been interviewed on five occasions by the Tribunal, presumably to see whether it was feasible to reintroduce him into society." (Appeal bundle pp. 13-14)

4.The judge went on carefully to consider his sentencing options in the light of two psychiatric reports, both of which recommended committing the Applicant to Siu Lam indefinitely. Dr Sung Wing-kuen, who has seen the Applicant many times, stated that in his opinion:

"The defendant is a person with Mild Grade Mental Retardation and Psychopathic Personality. He has (a) psychopathic personality ... with lack of empathy towards others, impulsivity, self-centred thought and inability to learn from past experience. Despite (the fact that) he has been imprisoned for more than 10 years in Siu Lam Psychiatric Centre for manslaughter, he showed no improvement in his behavioural problem. He is definitely dangerous to .... society in view of lack of improvement after 7 years (of) intensive rehabilitation in Castle Peak Hospital, highly unpredictable mental state and high propensity of violence. He is abnormally aggressive and seriously irresponsible (in) his behaviour."

5.The Applicant has been granted legal aid in case this court required the assistance of counsel, although Mr Walter Lau has himself been unable to put forward any ground of appeal.

6.We are left in no doubt that the order which the judge made was the only one which was realistically open to him.

7.Accordingly, leave is refused and this application is dismissed.

Representation:

Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent.

Mr Lau Wing-chiu, Walter, instructed by the Director of Legal Aid, for the Applicant.