HKSAR v. HO HOI SING

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 409
(Criminal)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant Ho Hoi Shing pleaded guilty before Judge Christie in the District Court to one count of wounding with intent. The judge made a Hospital Order for an unspecified period against him under s.45 of the Mental Health Ordinance, Cap. 136. He now applies for leave to appeal against sentence. His ground of appeal is that he had pleaded guilty to the offence and the victim's injury is not serious and more importantly the doctors in their psychiatric reports recommend a period of treatment for only 4 - 6 months. The judge therefore had no ground to make the order for an unspecified period of time.

2. The applicant admitted that on 21st January 1997, at about 10:20 p.m., he went into the house of the victim and appeared as if he were looking for some one. When the victim asked him whom he was looking for, he told the victim it was none of the victim's business. The victim then scolded him. As a result, he left the victim's house in anger. Sometime later, when the victim was outside his house, the applicant came upon him and attacked him with a chopper. A struggled between them ensued. In the end, the victim suffered an 8cm laceration on his scalp and minor lacerations and abrasions on his right wrist. The applicant escaped but was later arrested by the police at his home. He admitted to the police that he chopped the victim in anger because the victim scolded him.

3. Before sentence, the judge considered the applicant's psychiatry reports prepared by two government doctors, Dr. Chung Kit-ming and Dr. Kan Pik-ho. These reports indicate that the applicant has a history of mental illness dating back to ten years ago and that he suffers from Paranoid Schizophrenia.

4. Dr. Chung's report states that the applicant has two episodes of chasing people with a rod and a chopper. The doctor's opinion is that the applicant was acting under the influence of his psychotic symptoms when he committed the present offence and he recommends that "a period of in patient treatment is necessary in view of the chronicity of his illness and dangerousness of his behaviour". He recommends a Hospital Order for a period of 4 - 6 months.

5. Dr. Kam's report states that there is marked deterioration of the applicant's social and occupational functioning as well as personality change apart from the florid features and in patient treatment is deemed necessary. He also recommends a Hospital Order for a period of 4 - 6 months.

6. The judge in making the Hospital Order said this:

"The court has the power, instead of imprisoning you, to make an order that you be detained in a mental hospital for treatment and I will exercise that power so that you will be detained at Siu Lam Psychiatric Centre.

There is a question as to whether you should be detained for an unspecified period or for a fixed period. As this was an offence of violence, in which the victim suffered considerable injury, and because the doctors are themselves uncertain as to the exact time required for your treatment, I will make the order for an unspecified period."

7. The judge referred to R. v. LUNG Fan-wa CA 23/94 where the Court of Appeal refused to interfere with an Hospital Order for an unspecified period made against a defendant who pleaded guilty to manslaughter on the ground of diminished responsibility because the doctors were not certain as to the period of treatment required.

8. The judge concluded that an unspecified period was necessary because he considered that the doctors were uncertain as to the period of treatment the applicant required. In this regard, we note that both doctors have not said so in their reports. On the contrary, they express that the period of treatment required is 4 - 6 months. However, that was their view of the applicant's condition in June last year and since then the applicant has to date spent more than 6 months in the psychiatric centre. If he responded well over the 4 - 6 months period as the doctors anticipated, the doctors would have recommended his release. But it appears that this is not the case.

9. At the last hearing before us on 3rd February 1998, we had no information as to the applicant's condition at that time. Mr. Bruce, S.C. for the Government suggested that before we determined this application, we should consult the psychiatrists further. We agreed and adjourned the hearing pending further psychiatric reports. We now have the reports before us and we have read them. Dr. Ng Fung-shing's report dated 11th February 1998 states that the applicant has been suffering from paranoid schizophrenia for at least three years and although he has received treatment for a year, his illness is still not in remission. He recommends further treatment in Psychiatric Centre. His earlier report dated 25th September 1997 states that the applicant has poor response for treatment for 8 months and is unlikely to improve in a short period of time and recommends continued treatment in Siu Lam Psychiatric Centre subject to regular review by the Mental Health Review Tribunal.

10. The applicant is undoubtedly a person of violence when he is under the influence of his psychotic symptoms and in our view, when it would be safe to allow him to go back to the community is a matter for the experts to decide. The experts have examined the applicant. Although earlier they expressed their view that a short period of treatment would be sufficient, in the latest reports, that is no longer so. Their view is that the applicant has not improved after the period of treatment prescribed earlier. Continued treatment is necessary. They do not confidently think it proper for the applicant to go back to the community in his present mental condition.

11. In these circumstances, the judge's hospital order for an unspecified period should not be disturbed. The applicant may secure his release if and when his case is considered suitable for release by the Mental Health Review Tribunal. The application for leave to appeal against sentence is dismissed.