LUNG FAN-WA v. R.

IN THE COURT OF APPEAL

1994, No.23
(Criminal)

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J U D G M E N T

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Stuart-Moore, J. (giving the judgment of the Court):

1. On 15th December 1993, before Stock, J. in the High Court, this Applicant pleaded not guilty to murder but guilty to manslaughter on the grounds of diminished responsibility. The prosecution accepted the plea and the Applicant was made the subject of an order that she, for an unspecified length of time, be detained at Siu Lam Psychiatric Centre under s.45 of the Mental Health Ordinance, Cap.136.

2. The briefest outline reveals a tragic case. The Applicant has had a long history of mental illness and in the past has been diagnosed a schizophrenic, although the present diagnosis is that it is more likely she is suffering from psychotic depression.

3. On 23rd January 1993, she collected her son, who was not quite five years old, from his kindergarten and she took him home. Shortly afterwards she drowned him in a basin. The pathologist's report, in addition to confirming death by drowning, established that a degree of force had been applied to the child's head. There were numerous areas of injury to that region including deep bruising.

4. We have considered Mr. Law's submissions in the light of the psychiatric reports available at the time of sentencing and now.

5. Dr. Yuen's report dated 9th December 1993 indicates that he would expect that the patient would need treatment for at least one year.

6. Dr. Mak Ki Yan's report, which is dated 3rd December 1993, recommends further compulsory hospital treatment, perhaps with a more intensive trial of anti-depressants. In the same report he states that a prolonged stay in an institution will not be beneficial to her mental condition. He gave no indication then of the period of time over which it was contemplated treatment would be required. However, he has very helpfully, for the purposes of this hearing, supplied a supplementary report in which he says:

'it is quite difficult to estimate accurately the period of the Hospital Order for Madam Lung.'

He later goes on to say:

'I would suggest that a period of two to three years will suffice'.

7. It seems to us that this is precisely the sort of situation which this court had in mind in R. v. Tsui Chung-leung in Criminal Appeal No. 414, 1979. In that case, the evidence had been that medical opinion was unable, with confidence, to predict how long the patient would need under treatment before being fit for release into the community. What was stated in the judgment is as valid now as it was then, and we can re-emphasize it today:

'If the doctors cannot express this degree of confidence, it is wiser, both in the interests of the patient and for the protection of the public, that the order should have no term attached to it'.

8. Mr. Law has also referred to the case of R. v. Lam Yuet-siu. Criminal Appeal No. 238, 1993. There it was said that an order with no limit of time 'should be retained for the more serious type of offence and offenders, for example, when the violence of the defendant is such as to allow the Hospital Authorities to judge when such a person should be allowed to go back into the community.'

9. In the matter presently before us, we are unable to see that the learned trial judge was in any way to be faulted in the course that he adopted.

10. Accordingly we refuse the application for leave to appeal against sentence.