R. v. HA KEI FUK

IN THE COURT OF APPEAL

1995, No 688
(Criminal)

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application for leave to appeal against sentence. It is, as the sentencing judge observed, a sad case.

2. The applicant is a man in his mid 40's. He suffers from a mental disorder.

3. On the evening of August 6, 1994, the staff of a convenience store detained him on suspicion of theft. When two police constables arrived to investigate, he snatched one of the constable's service revolver and opened fire. He fired all six rounds which the revolved held. And then he fled. He was later arrested at his home.

4. Four counts were brought against him. The trial was disposed of on the basis of his guilty plea to one of them. It was of shooting with intent. And it was based on shooting at one of the constables with intent to prevent lawful detention.

5. The whole incident sprang from the appellant's mental condition which, as put in the court below, was one of chronic schizophrenia. Apparently, he loses control very easily and, when he does, he reacts in an extremely violent way. That is what the psychiatric evidence in the court below established. And plainly the facts of the case show it, too.

6. His condition, the doctors informed the trial judge, was incurable but possible to keep under some control, although not complete control, by medication.

7. In passing sentence on October 13 last year, Mr Justice Stuart-Moore felt that the only course open to him was to make a hospital order under s. 45 of the Mental Health Ordinance, Cap. 136, without specifying the period of detention.

8. As to why he refrained from specifying such a period, the judge said this to the applicant when sentencing him:

" I've had a long time to consider the reports of Dr. Connell, Dr Yuen, Dr. Lai and two clinical psychologists, in particular Dr. Connell, the psychiatrist, who'd considerable learning and experience, and he tells me that you cannot be cured but you will be able to be kept on an even keel with constant medication. What he comes to is that you have a very short fuse and if that fuse is broken, there is no saying what you might do. The medicine will keep you as well as you can be.

" In all those circumstances, I have decided that it would be wrong of me to specify a time limit on the order that I make. In saying that I have not only the evidence of the doctors in mind, but the Appeal of LUNG Fan-wa, 23 of 1994. It must be a matter for the doctors to decide if and when you are safe to release back into society. So the order I make is without limit of time."

9. The case referred to by the judge -now reported as R. v. Lung Fan-wa [1994] 3 HKC 106 - is one in which this Court upheld a hospital order without a specified period of detention.

10. At pp 107 - 108 of the report of that case, this was said:

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

Dr Mak Ki Yan's report, which is dated 3 December 1993, recommends further compulsory hospital treatment, perhaps with a more intensive trial of antidepressants. 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.

It seems to us that this is precisely the sort of situation which this court had in mind in R. v. Tsui Chung-leung Crim App 414/79, unreported). In that case, the evidence had been that medical opinion was unable, with confidence, to predict how long the patient would need to be 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.

Mr Law has also referred to the case of R. v. Lam Yuet Siu [1993] 2 HKC 272, 275. 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."

11. When the present application was called on before us back in May this year, the applicant was in person. In his notice of application, he had written:

"I am patient P5689, Ha Kei-fuk, disgruntled at the excessive sentence, thus appeal against sentence".

12. Taking the view that the applicant plainly needed the services of counsel and that his up-to-date psychiatric condition should be known, we ordered legal aid for him and sent for an up-to-date psychiatric report on him.

13. Mr Mullick has been assigned as his counsel. And we are very grateful to Mr Mullick for his assistance, as indeed the applicant ought to be. Mr Mullick has filed these two perfected grounds, which each amount to the same thing:

"1. In all the circumstances of the case the sentence of an Hospital Order, without determination of time, was manifestly excessive or wrong in principle.

2. In the circumstances of this case, the learned trial judge erred in not imposing an Hospital Order for a specified period of time."

14. The latest psychiatric report before us is one dated June 3, 1996, from Dr C H Yuen, the visiting Consultant Psychiatrist at the Siu Lam Psychiatric Centre. And this is what Dr Yuen says in the concluding paragraphs of his report:

"4. Since the offence, HA has been detained at Siu Lam Psychiatric Centre since 12 August 1994. He did appear to have been impulsive and could easily agitated for a short period (18 - 22 April 1995) but other than those few days he has largely been mentally stable. This is partly because he had been given counselling on his weakness and partly because of the effect of medication. He now knows very well that he used to be impulsive and it was because of impulsiveness that he had committed the index offence. He also knew very well what he had done was wrong. What he wants very much at present is that the Court could give him a "less harsh" sentence so that he could go back to work, support the family and serve his aged mother.

5. I last examined him on 3 June 1996. He fully conscious and had good contact with reality. He could state clearly the reasons of the appeal. No psychotic symptoms could be detected.

6. In my opinion, in his present appeal, I hope the court could consider the points which I have just raised. I can assure the Court that we would give him adequate supervision after discharge for despite not having psychosis, his low frustration tolerance and history of child abuse, marital discord, low intelligence etc. definitely should warrant long term social and psychiatric follow-up. I hope the Court could give him a Hospital Order sentence for period appropriate for this type of offence but not for an unspecified period. If solely for the consideration of treatment, he should be ready for going back to the community in about 6 months time."

15. That did not strike as expressing that degree of confidence which would justify a specified term.

16. But one of the things which became apparent in the course of this morning's argument - and here Mr Cross for the respondent was armed with certain further material from Dr Yuen - is that it is necessary to consider whether the proper order, on the basis of what now appears to be the position, is for detention in a mental hospital rather than in a psychiatric centre. That is so because, on the whole of the written material now before us, it appears that the applicant's best chance of being brought as quickly as possible to the state in which it would be safe to release him into the community lay in the treatment which he would receive in a mental hospital rather than in a psychiatric centre.

17. That was canvassed in the course of this morning's argument. The suggestion which we made was that Mr Cross see whether he could obtain the definite opinion of Dr Yuen on the matter. And we adjourned the application to this afternoon to see what could be done in that regard.

18. We are very grateful to Mr Cross. And we are very grateful to Dr Yuen. For Dr Yuen was so good as to rush here, examine the applicant in the cells in this building and report to Mr Cross. It is now clear that the definite opinion which Dr Yuen holds is that the applicant's best chance of being brought as quickly as possible to a state fit for release into the community does indeed lie in his being committed to a mental hospital rather than to a psychiatric centre.

19. It is for the court making hospital order to specify whether the person should be sent to a psychiatric centre or to a mental hospital. But before sending anyone to either of those institutions, the court must be satisfied that arrangements have been made for the admission of the person in question to that institution. It is perfectly plain that on the material put before the sentencing judge, he had no option but to order detention in a psychiatric centre. But we now have information which satisfies us : (a) that there is a place for the applicant at the Castle Peak Mental Hospital; and (b) that his being committed there is the best thing for him.

20. In this matter, what is good for the man is good for the community. So we are satisfied that it is right for us - on fresh material, in changed circumstances and without any criticism whatsoever of the sentencing judge - to order that the applicant's detention be at the Castle Peak Mental Hospital rather than at the Siu Lam Psychiatric Centre where he now is. And we treat the hearing of this application as the hearing of the appeal to allow the appeal to the extent of so ordering.

21. Turning to another matter, Mr Mullick invited us to consider making an order under s. 45(1)(a) of the Mental Health Ordinance to disapply the proviso to s. 47(2) of the same Ordinance. We will not disapply that proviso. Dr Yuen has informed us through Mr Cross that he is not in favour of that course. His view seems to be a sensible one. He fears that it might harm the doctor-patient relationship by building up in the patient a false hope of release which the doctor then has to dash.

22. Before parting with this appeal, there is one thing which we would like to make very clear. It is of course in the interest of a patient and of the community alike, that he be detained as long as it is necessary for his safety and as well as the community's safety. But likewise, it is in his interest and the community's interest that he be restored to the community as soon as it is safe for that to happen. We have, with the assistance of counsel on both sides and of Dr Yuen, intervened towards that end. We express the confident hope and expectation that this man's position will be kept under constant and careful review so that he will be released as soon as medical opinion is that his release is a safe course.

23. In the result, the appeal is allowed to the extent already indicated - that being done on fresh material, in fresh circumstances and without any criticism whatsoever of the sentencing judge.