THE QUEEN v. TANG YAU CHI

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J U D G M E N T

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Power, J. A.:

1. This appeal has been reserved to the Court of Appeal by Addison J. pursuant to s.118(1)(d) of the Magistrates Ordinance Cap.227.

2. The appellant who is 32 years of age was charged contrary to s.160(1) of the Crimes Ordinance Cap.200 that on 17th July 1987 he did loiter in a public place, namely, at Lugard Road, Peak, in Hong Kong and did not give a satisfactory account of himself and a satisfactory explanation of his presence there. He also faced a charge that he did on the same day at Lugard Road resist Police Constable 22493 in the due execution of his duty.

3. The evidence from the prosecution was that early on the afternoon of 17th July 1987 the appellant was seen to be loitering in a suspicious manner at Lugard Road; when police officers attempted to question him he ran away ignoring an order to stop and, after a hot pursuit, was intercepted by PC 22493 and was subdued after a violent struggle; when questioned about his presence he replied that he went up to the Peak for a walk but refused to answer questions as to his actions in Lugard Road. The appellant elected not to give evidence.

4. At the outset Miss Moosdeen who represented the appellent told the court that he had been in hospital on two occasions with mental problems but said that he was fit to plead.

5. The only witness called by the defence was the defendant's mother. We have no record of her evidence but it would appear she gave evidence that her son had suffered from some form of mental disturbance.

6. Miss Moosdeen appears to have addressed the court upon the basis that the defendant's behaviour was such that he may have misunderstood what was going on at the time of and prior to his arrest. The Magistrate, Miss Betty Kwan, summed up the defence case in her findings at the end of the trial by saying:

"What is put forward on behalf of defence is that because of defendant's mental state, there was misunderstanding between defendant and the police officers".

She also indicated that there was evidence before her, presumably from the mother, that his mental condition was such that he had not worked for years and that his mother had to keep him under observation.

7. The Magistrate stated:

    "Difficult question for me is whether he was able to understand

(1)    he was asked to explain behaviour in relation to loitering charge;

(2)    if he did not give reasonable explanation he would be arrested; and

(3)     he knew those were police officers;

(4)     in circumstances he was under arrest; and

(5)    because he was under arrest, he should not put up any resistence.P.W.2 has said possibility of misunderstanding therefore I cannot be sure of the above therefore must have doubt and acquit."

She then went on to say that having read reports from two doctors recommending that the defendant be placed under a Hospital Order she decided to follow that recommendation and under s.45 of the Mental Health ordinance ordered the defendant to be detained at Siu Lam Psychiatric Centre for 12 months. In her Statement of Findings, which are to be distinguished from her findings made at the conclusion of the trial, the Magistrate said:

"PW2 candidly agreed under cross-examination that although he had declared his identity to the Defendant, he could not be sure if the Defendant had heard and understood. PW2 also stated that there was a possibility of a misunderstanding between himself and the Defendant.

In those circumstances, I could not be satisfied that the Appellant knew or understood he was under arrest, and by extension, knew he was obliged to give an account of himself and an explanation of his presence there. For those reasons, I acquitted the Defendant on both charges even though I accepted the evidence of PW1 and PW2 that the Defendant had loitered and that he had put up resistance when arrested."

She went on to say:

    "I was satisfied of the following matters:

(1) that the defendant had done the acts alleged by the Prosecution in relation to the two offences;

(2) that on the 2 reports the Defendant is a mentally disordered person and the nature of his mental disorder warranted his detention in Siu Lam Psychiatric Centre for treatment;

(3) having regard to the character and antecedents of the Defendant the most suitable method of disposing of the case was by means of an order under section 45; and

(4) that the period of the order specified was not greater than the sentences which I could have imposed in respect of the charges that the Defendant faced".

8. The section with which we are concerned reads as follows:

                "45. (1) Where -

(a)     a person is -

(iii) charged before a magistrate with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission; and

(b)    the court or magistrate is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance with the provisions of section 46 that -

(i)    such person is a mentally disordered person; and

(ii)    the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment; and

(c)    the court or magistrate is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of such person, and to the other available methods of dealing with him; that the most suitable method of disposing of the case is by means of an order under this section.

the court or magistrate may by a hospital order authorize the admission of the person to and his detention in the Correctional Services Department Psychiatric Centre or a mental hospital specified in the order or, if the person is under 14 years of age, in a mental hospital specified in the order, and may specify in the order the period during which such person should be so detained which shall not be greater than the sentence which the court or magistrate could have imposed in respect of the offence with which such person was charged.

        (2) A hospital order shall not be made under this section unless the court or magistrate is satisfied that arrangements have been made for the admission of the person to the Correctional Services Department. Psychiatric Centre or that mental hospital within 28 days after the date of the hospital order, in the event of the hospital order being made by the court or magistrate.

        (3) Where a hospital order has been made, the court or magistrate shall not impose a sentence of imprisonment or a fine or make a probation order in respect of the offence but may make any other order which the court or magistrate has power to make apart from this section and for the purpose of this subsection 'sentence of imprisonment' includes any sentence or order for detention in a remand home, a reformatory school, a house of detention or a training centre."

9. Mr. Wong who appeared for the appellant argued:

1.    that there was no "act" within the meaning of that word as it is used in s.45(1)(a) (iii) unless there were "some mens rea" and that as the magistrate's acquittal of the appellant involved a finding that there was no mens rea she was not entitled to proceed to deal with him under the section.

2.    that the formal order of acquittal rendered the magistrate functus officio and she had therefore, no power to proceed to make a hospital order.

10. We find difficulty when dealing with Mr. Wong's argument on his first point in understanding what he meant when he submitted that "some mens rea" had to be established. However that may be, we are satisfied that his argument can only be examined in proper perspective if we look at the intention of the Legislature when it enacted s.45. It seems to us clear that s.45 was to deal with the case where the court, an offender having been proved to have done the acts which constitute the actus reus, was satisfied either that he had no mens rea or was left in doubt in that regard. It is entirely in accord with the words of the section, and with common sense, that the Legislature in such circumstances, given that the person had committed criminal acts would, two doctors being satisfied that he was mentally disordered, think it appropriate to give the magistrate power to make a hospital order detaining him in a psychiatric centre or a mental hospital.

11. We are satisfied that the Legislature when it referred to the "act" in s.45(l)(a)(iii) must have been referring to the actus reus and must have intended that the magistrate have power to deal with a mentally disordered person where no mens rea was proved.

12. Turning to the present case we are satisfied that it was proved that the appellant loitered and failed to give a satisfactory explanation when challenged and that he was therefore guilty of the actus reus and that the magistrate did have power to deal with him. That disposes of Mr. Wong's first point.

13. We turn now to Mr. Wong's second point. He submitted that the section when read as a whole makes it clear that a magistrate can only deal with an offender either after he has convicted him or after he has found that he has done the act referred to in (iii). He submitted that if the magistrate proceeds to acquit the defendant then he is functus officio and has no power to make any order under s.45. What then, one might ask, must a court do when it is satisfied that a defendant's acts constitute the actus reus but is not satisfied, because of his mental condition, that the necessary mens rea has been proved. If Mr. Wong be right, the court would be able to go on and deal with him under s.45 if it observed that because of his mental condition it was satisfied that he was not guilty as charged but would not be able to go on and deal with him if it observed that because of his mental condition it was acquitting him. We are quite satisfied that this cannot be so. It seems to us clear that when a magistrate acquits in such circumstances and then proceeds to deal with the offender under s.45 he is doing no more than saying that he is not prepared to convict because he has doubt as to mens rea and having given that indication is perfectly entitled to go on and deal with the offender under s.45 which is what the magistrate did in the present case.

14. The appeal is dismissed.