HKSAR v. WONG HUNG FAI JOSEPH

CACC 153/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 153 OF 2007

(ON APPEAL FROM DCCC NO. 772 of 2006)

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J U D G M E N T

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

1.  On 2 April 2007, the applicant was convicted in the District Court by Judge Chua of attempted robbery, contrary to section 10 of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200.  The judge adjourned the proceedings until 20 April 2007 for up-to-date psychiatric reports to be prepared and, on that day, she made a Hospital Order without limitation of time, pursuant to section 45 of the Mental Health Ordinance, Cap. 136.

2.  The matter now comes before us as an application for leave to appeal against conviction and sentence.

Conviction Application

3.  The facts leading to the applicant’s conviction were straightforward. At about 2.40 pm, on 26 July 2006, a traffic warden approached a van driver who had parked his vehicle illegally outside Shatin Plaza and he directed the driver to move the vehicle away.  However, instead of doing so, the driver got out of the vehicle and started to jab the traffic warden with his finger.  The police were then called.

4.  One of the officers who came to the scene, where a number of onlookers had gathered, felt a tug on his handgun.  The officer quickly turned round and found that the applicant had both his hands on the handle of the weapon and was trying to pull it out of its holster.  The officer held the firearm in place with his left hand while grabbing the applicant round the throat with his right hand and, in the struggle which followed, he forced the applicant to the ground.  The officer shouted out “gun snatching” and other officers then gave assistance.  The buckle-fastener on the holster holding the firearm which the applicant had attempted to snatch was undone.

5.  Immediately before his arrest, the applicant said that he wanted to take the gun to kill himself and, on arrest, he said:

“Ah Sir, sorry.  I didn’t want to do it.  I have AIDS.  It brought great suffering.  I snatched the gun only because I was thinking of committing suicide.”

6.  It was not disputed at trial that the applicant was fit to plead.  Accordingly, on arraignment, the applicant pleaded not guilty.  The trial then proceeded on the sole basis of a defence of insanity. 

7.  Reports from Dr Wilson Fung, the applicant’s family doctor and a paediatrician, Dr Lam Chun, a psychiatrist at Queen Elizabeth Hospital, Dr Ng Ying-wai, a medical officer at the same hospital as Dr Lam, Dr Amy C Y Liu, a visiting psychiatrist at Siu Lam Psychiatric Centre and Dr Chow Lok-yee, a specialist in psychiatry, were all presented to the court.  Dr Ng’s report was read to the court.  This stated that the applicant was not suffering from the sexually transmitted diseases he had claimed at various times to have.  The other doctors all gave evidence at trial.

8.  A defence of insanity at the time of the commission of an offence is described in Archbold Hong Kong 2007 [paragraph 16-62] as a “particular situation where mens rea is lacking”.  The text continues: “The onus is on the defence to establish such insanity on a balance of probabilities”.

9.  The judge, having summarised the evidence for the prosecution in her Reasons for Verdict, stated:

“The Medical Evidence

7.       The defence, on whom lies the burden in proving on the balance of probability that the defendant was entitled to be acquitted because he did not have the required mens rea, called four doctors.”

10.  Nowhere in the Reasons for Verdict was it stated by the judge that the defence was one of insanity.  The reader is left to infer that this is so from references to the medical evidence called by the defence and Mr Leung has confirmed from trial counsel that this was the case.

11.  Unfortunately, Mr Victor Lee, on the applicant’s behalf, having played no part in the trial in the court below, seemingly failed to appreciate that insanity was the sole issue for the judge’s determination because, in the 1^st ground of appeal, he alleged that the judge had:

“… erred in law in that [she] placed the burden of proof on the defence in proving that the defendant was entitled to be acquitted because he did not have the required mens rea.  The charge requires the proof of a specific intent and the burden is on the prosecution to prove the required mens rea.”

12.  Furthermore, the 2^nd and 3^rd grounds flowed from the same error which had been made in the 1^st ground as Mr Lee complained that the judge had “failed to consider dishonesty” and had drawn an inference that the applicant knew he had been wrong “because he had immediately apologised for his act”.  There had been no suggestion at trial that the applicant believed he was entitled to have the police officer’s firearm or that he thought it belonged to him.  On the contrary, there was every indication that he knew he was acting wrongly from his admitted desire to take the gun with suicide possibly in mind.

13.  The 4^th ground of appeal was that the judge had erred in law and in fact in that she “did not accept or failed to consider a defence of irresistible impulse/automatism”.  This ground was a reference to paragraph 29 of the Reasons for Verdict which states as follows:

“29.   Going now to another aspect of this case, it had been submitted that the defendant felt compelled by the voice which urged him to do the act.   I am afraid the law does not accept a defence of irresistible impulse. …”

The judge continued by referring to Attorney-General for South Australia v Brown [1960] AC 432 which is cited in Archbold Hong Kong 2007 [paragraph 16-68] under the heading ‘uncontrollable impulse’ and reads:

“If the defence fail to prove insanity as laid down by the answers of the judges in McNaghten’s case, proof of insanity short of this will not suffice.  In particular, evidence that the defendant acted under uncontrollable impulse will not suffice: R v Kopsch 19 Cr App R 50, CCA; Sodeman v R [1936] 2 All ER 1138, PC; Att-Gen for South Australia v Brown [1960] AC 432.  In the last case, the Privy Council said that it was wrong to direct a jury that evidence of uncontrollable impulse may afford strong grounds for the inference that the defendant was labouring under such a defect of reason from disease of the mind as not to know that he was doing what was wrong, regardless of the medical evidence or the absence of such evidence.”

14.  Here, there was no proper foundation on the evidence presented in the court below for a defence of automatism as the evidence revealed a disease of the mind (schizophrenia).  Automatism only arises when there has been some failure of the mind which is not due to disease.  Nevertheless, Mr Lee suggested that the judge ought to have considered such a defence although, at trial, automatism was never once referred to.  This is hardly surprising as there was, as we have said, no basis for its consideration.

15.  The conviction in this case followed the judge’s conclusion that the applicant “knew the nature and quality of his act and was aware it was wrong” at the time he attempted to snatch the police officer’s firearm.  The judge was entitled to make this finding on the evidence before her in spite of undisputed evidence which showed that the applicant was suffering from a disease of the mind.

16.  The application in regard to conviction is dismissed.

Sentence application

17.  The application in relation to sentence was made by the applicant in person.  In his written grounds, he referred to various personal and family issues before describing his offence as having occurred because of “a slight relapse of [his] mental illness”.

18.  When passing sentence on 20 April 2007, the judge had two psychiatric reports before her which were prepared in that same month.  These were from Dr Y W Cheung and Dr Robyn Ho both of whom are visiting psychiatrists at Siu Lam Psychiatric Centre.

19.  Dr Cheung reported that the applicant was suffering from a relapse of paranoid schizophrenia and he continued by saying:

“His mental state seems to be very prone to relapses secondary to his life stresses.  Currently he is still psychotic.  His act of offence was largely under the influence of his psychotic symptoms and poor mental state.  His risk of violence and further act were high in view of his distress.”

20.  Dr Cheung concluded that further in–patient treatment was necessary in order to “protect him and society in view of his poor insight, florid psychotic symptoms and violence propensity” and he recommended a hospital order under section 45 of the Mental Health Ordinance for a period of at least 12 months.

21.  Dr Ho made a recommendation of the same kind and he added that the applicant had a “very high propensity to act recklessly, especially under psychotic influences.  His prognosis is poor”.

22.  The judge was satisfied on the evidence presented by these psychiatrists that it was in the interests of the applicant and the public that he should be detained indefinitely so that he could be released at such time as he no longer constituted a danger to himself or the public.

23.  We have taken the precaution of requesting a further report from Siu Lam Psychiatric Centre to ascertain whether there has been any change in the applicant’s psychiatric condition.  We are grateful to Dr Ho, who has continued to have the applicant under his care, for preparing a very full report at short notice.  From this, we observe that the course of the applicant’s schizophrenia has fluctuated during the last year with his mental state only becoming more stable in the last few weeks, since June 2008.  Although the applicant denied suffering from any psychotic symptoms, a recent report from an occupational therapist indicated that the applicant “appeared to harbour persecutory delusion against him”.  Dr Ho reported that the applicant has “a high propensity to violence as well as seriously irresponsible behaviour when he is mentally unwell”.  No doubt for this reason, with a  prognosis described as “guarded”, Dr Ho indicated that the applicant will not be recommended for discharge at the forthcoming review of his case by the Mental Health Review Tribunal.

24.  The application relating to sentence is dismissed.