HKSAR v. ASLAM USMAN

HCMA522/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.522 OF 2002

(ON APPEAL FROM NKCC 2291 OF 2002)

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J U D G M E N T

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1. This is an appeal against sentence only. The appellant, a Pakistani national, was convicted on his own plea of an offence of breaching his conditions of stay in Hong Kong by overstaying his permitted period of stay, contrary to section 41 of the Immigration Ordinance, Cap.115, being the first charged offence, and of an offence of criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200, being the second charged offence. In respect of both offences the appellant was ordered to be made the subject of a hospital order, pursuant to section 45 of the Mental Health Ordinance, Cap.136, for a period of three months. The appellant complains that was too severe a sentence.

2. The facts of the case as found by the magistrate and admitted by the appellant were that on the day of the offences the appellant went into the premises of Citic Ka Wah Bank in Shamshuipo and told a staff member he wanted money. The appellant was behaving peculiarly in that his eyes were rolled up and he was unsteady on his face. The anti-theft alarm system of the bank was activated by the staff member and all customers in the bank then left, leaving the bank staff behind bullet-proof glass panels which were lowered automatically, separating the staff from the appellant who was now alone on the bank floor.

3. The appellant wandered about in that vicinity for a while, muttering to himself, and then began striking the bullet-proof glass panels with metal stands used for queue control. Police arrived shortly after this and arrested the appellant.

4. Following enquiries it was determined that the appellant had received permission to stay in Hong Kong but at the time of his arrest, the permitted period of stay had expired some six months earlier.

5. The magistrate before sentencing the appellant called for the reports of two clinical psychiatrists at the Siu Lam Psychiatric Centre. Those reports revealed that the appellant was an habitual user of cannabis in Pakistan and had been on occasion hospitalised in Pakistan for his mental problems. The appellant had apparently attempted suicide there in 1997.

6. So far as his symptoms in Hong Kong were concerned, the appellant told the reporting psychiatrists that he had many millions of dollars deposited in the subject bank and he was the prince of the world. A voice from his heart had urged him to withdraw the money. He became angry when it was not given to him. The appellant's brother had told the reporting psychiatrists that his brother had started to talk incoherently some days before this present event, and that the appellant had told him that he could not sleep as his heart was speaking to him with a human voice.

7. The clinical psychiatrists, in examining the appellant, had noted mood swings from calmness to aggression. Both diagnosed schizophrenia. Both psychiatrists recommended that a hospital order be made. Doctor Pang Pui Fai, a visiting psychiatrist of the Siu Lam Psychiatric Centre, suggested a period of between three to four months. Doctor Choi Wing Kit, also a visiting psychiatrist of the Siu Lam Psychiatric Centre, recommended a period of three months hospitalisation.

8. The magistrate, in his Statement of Findings said he was in full agreement with the two clinical psychiatrists that the symptoms of the appellant and the diagnosis of his illness made it imperative that he imposed a hospital order and, accordingly, he made an order pursuant to section 45 and ordered that it be for a period of three months.

9. The procedures adopted by the magistrate in the course of sentencing the appellant were quite proper. The reasons he gave for adopting the recommendations in the reports of the two clinical psychiatrists were impeccable. The period of the order that he made was in concordance with the recommendations of both doctors.

10. Before me today, the appellant has not been able to advance any substantial reason as to why he complains about the sentence that was imposed. In my view, the sentence cannot be criticised in any way. The appeal against sentence is dismissed.