HKSAR v. PANG CHUNG WAH

HCMA1086/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1086/2005

(ON APPEAL FROM TMCC 3186 of 2005)

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J U D G M E N T

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1.  The order I make in this case is that the two convictions and the hospital order are quashed. 

2.  Charge 1 will lie on the file on the usual terms.

3.  As to Charge 2, I am satisfied that the appellant did the act in question, namely, make off without payment and that accordingly under Section 45 of the Mental Health Ordinance, I now have power to make a hospital order. 

4.  All the other conditions are met and I make a new hospital order detaining the appellant at Siu Lam Psychiatric Centre until Monday 16 January.

5.  Let me say immediately that both parties agree that I should make the order in those terms.

6.  In those circumstances I am going to give very brief reasons why I have taken that course, mostly out of courtesy to the magistrate who will want to know what has gone on.

7.  Let me say immediately that none of the matters that exist before me now which have resulted in making this order were apparent to him, and he was quite entitled to rely on what the duty lawyer told him at the time.

8.  The appellant is a long-terms schizophrenic, who at the time of the alleged offences had stopped taking his drugs.  He had a clear record and under the stress of his illness, he took a ferry journey from Tuen Mun to Tung Chung and avoided payment by saying that he had been robbed and did not have any money.  That was not true.  He agreed that he would pay on his way back to Tuen Mun

9.  He came back to Tuen Mun, met the man who had let him on there and was asked for $30 for both fares, he then made off.

10.  Owing to the very fair stance and the industry of Miss Sin who appears for the respondent, it has been pointed out to the court and it is the fact that on that version of the facts he was not guilty of making off without payment, the first offence to which he pleaded guilty, because payment on the spot was not expected, because he had agreed, albeit by dishonest means, that the payment be delayed.

11.  There is good authority that the existence of an agreement to delay payment, albeit brought about by dishonest means, has the result that the offence cannot be committed.

12.  There is also convincing evidence before me, I shall not detail it, to demonstrate that at the time the appellant entered his plea his mind did not go with his act, owing to the flourishing  of his mental illness at that time.

13.  That is why I have quashed the convictions and the original hospital order and ordered that Charge 1 lie on the file.

14.  I can make a new hospital order because it is agreed before me, and I find, that he actually committed the act of bilking, making off without payment, particularised in Charge 2.  

15.  At the prompting of Miss Sin, for which I am grateful, we have an updated psychiatric report now, which tells me that he has responded well; he is taking the drugs and he is back on a stable path and the expectation of Dr Yuen, the author of that report, was that he would be discharged home when that old hospital order expired.  That would normally have happened, if it had run its course, half way through the holiday at Chinese New Year.

16.  It is clear to me the hospital order has already had its desired effect, and there is no need to keep him there for the last fortnight.  That is why I have made the order extending the hospital order only until Monday and I leave that small period of delay just so the doctors can consider any other path they have under the Mental Health Ordinance before letting him have his liberty.

17.  This was a case that bristled with legal difficulties but owing to the good sense of both parties we have been able to resolve it in this way which has been satisfactory to both sides.  So thank you very much.