HKSAR v. FUNG KING NIN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 364
(Criminal)

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J U D G M E N T

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

1. The Applicant was charged with murder in the High Court before Saied, J. He pleaded guilty to manslaughter. This was on the basis that the act in question was an involuntary act. The prosecution and the Judge agreed to this and he was convicted of manslaughter. He was sentenced to detention in the Correctional Services Department psychiatric centre for an indeterminate period pursuant to s.45 of the Mental Health Ordinance, Cap. 136. He now seeks leave to appeal against his conviction and his sentence. The former application is made in person. On the latter Mr. Mullick has been requested to assist the Applicant.

2. So far as the appeal against conviction is concerned no grounds have been lodged. Before us, the Applicant just said that he wants to be released from hospital and to go home.

3. It would appear from the medical evidence that the Applicant was fit to plead. The charge and the agreed facts were read to him and he pleaded guilty to manslaughter. No serious grounds have been advanced to lead us to believe that the conviction was in any way unsafe or unsatisfactory and this application is dismissed.

4. According to the agreed facts shortly before 2:00 p.m. on 18th July 1997 the Applicant was walking on the pavement at Java Road, North Point. He pushed another pedestrian off the pavement into the path of a box van the driver of which was unable to avoid coming into collision with this other pedestrian who sustained fatal injuries. Other pedestrians who saw what had happened detained the Applicant while the police were summoned. One of the witnesses heard the Applicant say, "It was because he all the time called me an idiot."

5. It was also an agreed fact that the deceased and the Applicant were not known to each other.

6. There were medical reports from three psychiatrists. Dr. Yuen and Dr. Ng for the prosecution and. Dr. Singer for the Applicant.

7. There was essential agreement between the doctors that the Applicant has an intelligence quotient somewhere in the region of 52 - 55 and that he should be classified as a mild to moderate mental defective. In addition to this he is said to suffer from what is described as a behaviour disorder.

8. He has been a patient in mental institutions in Hong Kong and China both as an in-patient and as an out-patient. He has been treated with Neuroleptics with mixed success. He is presently being treated in the Siu Lam Psychiatric Centre.

9. The doctors gave evidence adopting their detailed reports and were subjected to cross-examination. The record on this comes to almost 200 pages.

10. What emerges from all of this is a conflict between the Government psychiatrists on the one part and Dr. Singer on the other as to the extent to which the Applicant constitutes a danger to the public.

11. The Government doctors who have certainly seen a lot more of the Applicant than Dr. Singer have referred to the unpredictable nature of his behaviour. They expressed the view that the overall prognosis was poor. They were also of the opinion that he required close supervision and that he constituted a moderate danger to himself and others. They based this partly on the fact that he had a very poor capacity for judgment and that this was a serious matter when taken in conjunction which his behaviour disorder.

12. There was a further complication in that his medical records indicated that when he had been an out-patient it had been noted that regularly he had failed to take the medication which had been prescribed to alleviate his condition.

13. It has to be said that very little that Dr. Singer had to say in evidence convincingly took issue with the Government doctors' testimony.

14. Saied, J. particularly considered the case of the R. v. Lung Fan Wa [1994] 3 HKC 106 and concluded that the order earlier referred to should be made.

15. No proper grounds of appeal have been filed. All the Applicant says is that he thinks the term of imprisonment is too long. It is not possible to discern any valid grounds of appeal. This application is also dismissed.