HKSAR v. CHENG YIN FONG

HCMA 120/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 120 OF 2003

(ON APPEAL FROM WSCC 15/2003)

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J U D G M E N T

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1. In this matter, you pleaded guilty to two charges of criminal damage.

2. Apparently disgruntled with decisions which you perceived as going against you, on 31 December 2002 you damaged office equipment in the registry of the Court of Final Appeal and, on 2 January 2003, whilst on bail for the former offence, you broke a glass door in the offices of the Department of Justice.

3. On 3 January 2003 you appeared before a Magistrate. At the request of your then representative no plea was taken and the proceedings were adjourned until 17 January 2003, for the preparation of two psychiatric reports. On that date, you represented yourself. The Magistrate considered the contents of the reports, which indicated that, whilst you were fit to plead, a hospital order in terms of s. 45 of the Mental Health Ordinance, Cap. 136, for a period of four months would be appropriate.

4. The psychiatric reports were explained to you by a representative of the Duty Lawyer Scheme. At that stage that you decided to represent yourself. The Magistrate invited you to address him on the question of sentence, with particular reference to the recommendation of the reports. The transcript shows that you told the Magistrate that you did not wish him to make a hospital order. You said you "opposed" anyone describing you as schizophrenic. You were disputing in simple terms the conclusion of the two psychiatrists who had examined you. The Magistrate listened to what you had to say but then passed concurrent sentences in line with the recommendations.

5. The real problem in this matter is this: s. 46(3)(c) of the Mental Health Ordinance provides that

"in any case, the accused...may require that the registered medical practitioner who signed the report be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of the accused."

6. The record before me shows that the representative of the Duty Lawyer Scheme who explained the reports to you, before you decided to represent yourself, explained "the position which is available to her". Ms Alice Lee, who appears on the instructions of the Director of Legal Aid at the request of the Court, indicated, during the last hearing of this matter, that she had spoken to the counsel concerned: he had told her that whilst he recalled telling you that you had the right to call medical evidence to rebut the content of the reports, he could not recall, unsurprisingly, whether he specifically had told you also that you had the right to have the authors of those reports give oral evidence in court.

7. You indicated to me on the last occasion that although you had understood that you had the right to arrange a further examination by a psychiatrist of your choice, you neither knew how to make those arrangements nor had the resources to do so. You further said that you had not been told that you had the right to have the psychiatrists who had examined you come to court to give oral evidence.

8. In my judgement the absence of a clear indication that you were informed of all of your rights under s. 46(3)(c) flaws the proceedings. Ms June Cheung, who appears for the Respondent, realistically accepted this to be so.

9. Further, Ms Lee indicated that the Director of Legal Aid had decided that, should you wish to be examined by another psychiatrist, he would make the arrangements for that to be done. When you were apprised of the right to hear the original psychiatrists and to be further examined you indicated that you wished this to be done. As a consequence the hearing of the appeal was adjourned to today.

10. It may be helpful to say immediately that Dr Peter Ho, appointed for you at your request, came to precisely the same conclusion as a consequence of his recent examination of you as did the two psychiatrists who prepared the original reports. His evidence does nothing to rebut the earlier reports.

11. Despite having had the report of Dr Ho, as well as two progress reports, explained to you you insisted on having the three practitioners give oral evidence before me today. Each adhered to his report, his opinion and the compelling reasons for it. There was no rational attack on either the factual basis of their findings or on the findings themselves.

12. In real terms, and as you have confirmed to me today, your complaint is not about the fact that you have been deprived of your liberty for a period of four months but about the conclusion reached by each psychiatrist that you suffer from schizophrenia. You object to the label being applied to you and apparently perceive that such a finding carries with it some form of stigma.

13. I understand your concerns but my function is to consider whether the Magistrate's sentences are proper in the circumstances. Plainly, the opinions of the psychiatrists were properly formed upon sound material before them. The Magistrate was fully entitled to rely on the reports and the opinions and advice contained in them. He was not obliged to make an order consistent with those reports for it his, and not the psychiatrists, function to impose the sentence. He was aware of this.

14. He had regard to the nature of the offences: he had regard to the content of the reports; he had regard to what you said to him in mitigation. He said

"...I considered...the overriding consideration to be the effective treatment of the defendant's mental problems which I considered could only properly be addressed by adopting the recommendations..."

15. In the circumstances of this matter, that approach is unassailable. I confirm the order made by the Magistrate and dismiss the appeals.

16. I record my appreciation not only to both Counsel for their help to the Court but also for the concern shown towards the Appellant. I record, too, my appreciation of the co-operation of the Director of Legal Aid and his staff throughout this matter.

17. Finally, it may be worthwhile for the attention of those who prepare reports in contemplation of orders of this nature being invited to the provisions of s. 45(2) of the Ordinance. Experience suggests that reports are usually silent as to whether provision has been made for the timely admission of the person: it would be helpful if the reports were to contain this information.