HKSAR v. MOLARD PATTERSON

HCMA 15/2019

[2019] HKCFI 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 15 OF 2019

(On appeal from WKCC No 2345/2018)

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J U D G M E N T

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1.  The appellant faced two charges: Charge 1, assaulting a police officer; Charge 2, breach of condition of stay, ie, overstaying.  Upon his pleading guilty to Charge 1, no plea was taken on Charge 2, pending the result of the appellant's appeal against the decision to reject his non‑refoulement claim.

2.  For Charge 1, the deputy magistrate (“the Magistrate”), imposed a hospital order of 3 months at Siu Lam Psychiatric Centre on the appellant.  The appellant now appeals against his sentence on Charge 1 on the general ground that his sentence was too severe.

THE PROSECUTION CASE

3.  In brief, at around 10 minutes past midnight on 23 May 2018, police officers on patrol duty in Sham Shui Po area spotted the appellant acting furtively.  He was intercepted for an identity check.  When asked to produce proof of identity, the appellant stated that he was a United States passport holder but had left his passport at his place of abode in No. 700 Nam Cheong Street.

4.  Police officers pointed out to the appellant that there was no such address.  As the appellant failed to describe the exact location of his place of abode, the police declared arrest on him for failure to produce proof of identity on demand.  The appellant became emotional and attempted to flee.  Police officers tried to restrain him and issued a warning to stop resisting.  The appellant still struggled and the officers had to handcuff him.

5.  During the struggle, the appellant still put up resistance by kicking a police officer on his right ankle and stepped on his foot twice.  The appellant was eventually subdued and arrested for assaulting a police officer.  One of the police officers suffered from tenderness and abrasions to his elbow and foot. 

THE APPELANT’S BACKGROUND

6.  An American national, the appellant is aged 38.  He first went to mainland China in 2017.  Not being able to secure a job there, he came to Hong Kong in January 2018.  He later filed a non‑refoulement claim.

7.  Before the appellant pleaded guilty to Charge 1, two psychiatric reports had been called for in September 2018.  Both recommended a hospital order for the appellant.  When the appellant pleaded guilty to Charge 1 on 22 November 2018, the Magistrate called for two updated psychiatric reports to consider the updated information on the appellant's mental condition before sentencing.

8.  In the two updated reports, two psychiatrists, Dr Liu and Dr Tam, both diagnosed that the appellant was still suffering from paranoid schizophrenia and persecutory delusions.  They also suspected non‑compliance of the appellant to medication. Given his limited improvement even with anti-psychotic medication, both Dr Liu and Dr Tam recommended for the appellant's own safety and for the protection of the public further in-patient continuous psychiatric treatment to the appellant by way of a 3‑month hospital order.

9.  The Magistrate was satisfied that the appellant was suffering from paranoid schizophrenia and the degree of his mental condition warranted his detention at Siu Lam for his interest and welfare and for the protection of the public.  Having regard to all the circumstances of the case, including the nature of the offence and the appellant's character and antecedents, the Magistrate imposed a hospital order for 3 months on the appellant.

10.  The appellant complains now that the detention is too long as he has been in custody since May 2018 and remanded in Siu Lam Psychiatric Centre since September 2018.  Despite that he expects to be discharged from Siu Lam in a few days on 5 March 2019, he asks the court to release him today.

11.  I have carefully checked the transcript of proceedings to examine the procedure taken by the Magistrate in sentencing the appellant.  The appellant was properly represented by a lawyer assigned by the Duty Lawyer Service in the proceedings below.  His interests were properly safeguarded. 

12.  The Magistrate properly called for two updated psychiatrist reports to confirm the current mental condition of the appellant.  Two psychiatrists still diagnosed that the appellant suffered from a mental disorder so that it would be in his own safety and benefit and for the protection of the public that the appellant should receive continuous treatment in the safe setting of a mental hospital.

13.  The appellant had been remanded since he was arrested.  This is one matter that the court had to take into account when sentencing the appellant.  On the other hand, the court must also consider what would be in the interests of the appellant and the public at large.

14.  When Dr Liu and Dr Tam examined the progress of the treatment to the appellant, he was found to have limited insight and was suspected of non‑compliance to medication.  Despite anti‑psychotic medication given to him for some time, only limited improvement was noted.  Both of them, therefore, recommended further treatment should be given by way of a hospital order.

15.  In my judgment, the Magistrate adopted the proper procedure and took all relevant matters into account in his consideration of the sentence.  The hospital order being for the benefit of the appellant himself and also in the interests of the public cannot be faulted.

16.  In passing, it is to be noted that the appellant is still facing Charge 2 for his overstaying in Hong Kong to which no plea has been taken from him.  The record shows that the Magistrate made an order that the appellant was to be remanded in gaol for that charge until 8 March 2019 for mention.  Therefore, even if the appellant can be discharged from Siu Lam, he will have to remain in gaol custody until that day unless bail has been offered.

CONCLUSION

17.  For the above reasons, the appeal against sentence is dismissed.