THE QUEEN v. HUNG HO-WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1071 OF 1989

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BETWEEN

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J U D G M E N T

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1. Mr. Lau, who appears for the appellant today has drawn my attention to the fact that there is now on the file a medical report from a Doctor CHAN Kwok-hung to the effect that the appellant when he was aged only about 1 or 2 months sustained a fall as a result or which he suffered concussion and a loss of consciousness. He had to be operated on in respect of a subdural haematoma and as a result of that operation he subsequently became and still is mentally retarded to a mile degree.

2. There was information before the learned magistrate about the appellant's mental condition. But the magistrate did not have that medical report, but merely opinions from the appellant's family. Those opinions glossed over the mental state to such an extent that it did not influence the magistrate in arriving at the proper sentence for this appellant. It seems to me that if the magistrate had that medical report he may have taken a different view. Because of his mental condition, the appellant is obviously not a person as criminally culpable when committing an offence such as this as one who has the benefit of full mental faculties.

3. The appellant has already been in custody for 1 ½ months. It seems to me that that is sufficient punishment by way of immediate custody and since the intake officer observed a sense of remorse in him. I see a no reason for him to continue to be in custody. What I propose to do, therefore, is to allow the appeal to an extent that the order for detention in a detention centre will be set aside and in lieu thereof I order that he be fined the sum of two thousands dollars. I further order that he pay that fine within 14 days from today.