R. v. LAI MAN FAI

1997 NO. MA 62

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was charged with theft. The learned Magistrate, having heard evidence from both the prosecution witnesses and that of the appellant, was satisfied that the appellant did the act of theft. But because of his mental condition, the Magistrate called for psychiatric reports and decided to commit the appellant to a psychiatric centre for four months pursuant to s.45 of the Mental Health Ordinance, Cap.136. It appears that the learned Magistrate quite properly sought submission on the jurisdiction that he has in dealing with the appellant and finally came to the conclusion that a Hospital Order would be in the best interest of the appellant.

2. The prosecution evidence seems to be simple and probably not seriously disputed. What the appellant did was that he went to a supermarket to look for some canned food. He picked up some cans, opened them up, put them back on the shelf and then looked at other newspapers. He took two newspapers under his armpit and two canned food into a bag. He purchased other food and came out without paying for the newspapers and the canned food. Upon being stopped, he said he would pay for them. It is quite clear from the evidence given by the appellant and the way he did it that he was under a mental problem. His mental problem started in 1985.

3. Before the learned Magistrate, there were a total of at least five Psychiatric Reports, one of which was very simple and I would not pay much attention to it. It does appear that all the psychiatrists confirmed that he had a problem. I note that two of the doctors said that they would recommend that the appellant be committed to hospital for three months whereas two other doctors recommended that he be committed for a period of four months. Be it a recommendation of three months or four months, it does appear that what the appellant needed was medical attention. Because of his history that he had not been a very persistent out-patient, I would have thought that the learned Magistrate was right to do the proper thing for him.

4. I do not regard a hospital order in the circumstances of this case to be a punishment. I would not interfere with the discretion of the learned Magistrate. I think that it would do the appellant good to remain there for a further period. It is very proper for Mr Poll for the appellant to inform me that he has spoken to one of the doctors and the doctors had expressed the opinion that there was no reason for the immediate release of the appellant. In the circumstances, I would not interfere with the discretion or the medical opinion of these doctors. The appeal is therefore dismissed.