HKSAR v. CHEUNG SUI BUN

CACC 398/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 398 OF 2000

(ON APPEAL FROM DCCC 565/2000)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. The question in this case is whether the sentencing judge ought to have made a hospital order for a fixed term, or an order which did not specify the period during which the applicant should be detained. The judge took the latter course even though the two doctors who had provided reports had suggested that an order under section 45 of the Mental Health Ordinance, Cap. 136 be made for the applicant's committal to hospital for a period of six months. It was in these circumstances that when the matter came before the single judge on the application for leave to appeal against sentence, he adjourned the application to this court, and directed that there be provided an updated report on the applicant's psychiatric condition which should include an opinion whether the unlimited order made would inhibit the staged process of treatment which had been outlined in the original reports, where the second stage envisaged release from Siu Lam Psychiatric Centre and referral to a less restrictive setting. We are grateful for the report received, and also for the assistance given to us today by Mr Suen who has been assigned to appear for the applicant. In the light of the most recent report, and upon review of the evidence before the judge, we are of the opinion that the judge's order was the wisest one for her to make, both at the time she made it, and also in the light now of the further opinion which we have.

2. The applicant is aged about 54 years, and he was living alone in a flat in Kwun Tong. In about March or April 2000, he was hospitalised in the Pamela Youde Hospital for psychiatric care and, whilst there, the caretaker of the building where he lived, worried about the applicant's absence, and unaware of the fact that he was in hospital, broke into his flat with the applicant's sister. The applicant was told about this after his discharge from hospital, but it obviously played on his mind and, wrongly convincing himself that the watchman had burgled his flat, he attacked him viciously with a hammer. He was charged with, and pleaded guilty to, wounding with intent to do grievous bodily harm. He was seen shortly after at Siu Lam, and there diagnosed as having a paranoid personality with hypochondriacal delusions and some risk of developing a psychosis. He remained an inpatient. The two reports before the judge referred also to abnormal anxiety and depression, and said that he was in need of long term treatment in a supervised setting, and the recommendation was made for a committal order under section 45 of the Ordinance for a period of six months. It was also said that once his insight had, with treatment, improved, he could be considered for a move for treatment in "a less restrictive setting and to monitor his adjustment in community living". The second doctor said that the applicant suffered from severe depressive episode with psychotic symptoms, and he made the same recommendation.

3. The sentencing judge clearly took some considerable care in her approach to the case and thought it unwise to bind the hands of the doctors to a time limit. No endorsement was made under section 45(1A) of the Ordinance, for none was necessary.

4. We have an up to date report from Dr Chan. The original prognosis for a recovery within six months has proved over-optimistic. We are told that, unfortunately, the applicant has made little progress, and there is an increasing suspicion of a major and chronic psychotic illness, namely, schizophrenia. He needs further inpatient treatment, preferably at Siu Lam, and at least another six to nine months is thought to be necessary before he could be considered for a move to another hospital. An order without limit of time as to the period of detention will not, we are told, have any adverse effect on the doctors' freedom to move him to such other places as and when they see fit.

5. In these circumstances, in our judgment, both for the interest of this applicant and for the protection of the public, the order made is quite the right one to have made, and the application for leave to appeal against sentence is accordingly dismissed.

6. By reason of section 45(1) of the Ordinance, it is necessary to specify in the order the psychiatric centre in which the applicant is to be detained, and we specify that that centre will be the Siu Lam Psychiatric Centre.