HKSAR v. LI CHI WAH

HCMA 737 & 738/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEALS NO. 737 AND 738 OF 2001

(ON APPEALS FROM WSCC 5821/2001 AND ESCC 1463/2001)

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Handing Down Reasons: 3 September 2001

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J U D G M E N T

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1. On 26 June of this year the appellant pleaded guilty at Western Magistracy to two offences of theft committed on 30 April and 21 May at two different branches of the HMV store. On each occasion he stole a compact disc.

2. The learned Magistrate having considered two psychiatric reports concerning the appellant made an order under section 45(1) of the Mental Health Ordinance (Cap. 136) that he serve a hospital order at the Siu Lam Psychiatric Centre for a total period of 3 months.

3. In seeking to appeal against that sentence the appellant wrote to the superintendent of Siu Lam in the following terms:-

"I, Li Chi Wah (P213285), was passed a three-month sentence (M.H.O.) at the Western Magistracy on 26th June. At that time, the court charged me with two counts of theft. The first count concerned stealing a CD worth HK$225 at the HMV in Causeway Bay while the second one was for stealing a CD worth HK$70 at the HMV in Central. During my appearance in court, I told the judge that I would plead not guilty to the second charge and that I had no intention to steal. The judge, nevertheless, convicted me and I do not understand why. Therefore, I request the Superintendent to help me handle matters regarding my appeal. I hope that there could be a re-trial of the case or a reduction of sentence."

4. On 30 August I dismissed the appeal and said that I would give reasons in writing at a later date. These are my reasons.

5. In his reasons for sentence the learned Magistrate said, inter alia, the following:-

"The Appellant admitted the prosecution's summary of the facts in the two cases. The cases were similar. In each case he had entered an HMV store, taken a compact disc, removed its security tag and then left the shop without paying. He did this on 30th April and 21st May 2001. He has three previous convictions, all for theft and was serving a two month sentence for the last of these convictions.

I had two psychiatric reports. These revealed that he has been having serious problems for a number of years. He was diagnosed in the past as having a "psychopathic disorder" and being an "abnormally aggressive and seriously irresponsible person". More recently the psychiatrist described him as having a "delusional disorder" and an "anti social personality disorder".

... ... The psychiatrists suggested a hospital order of between two and three months.

I took into account his (eventual) pleas, his past history and the nature of the two offences. Inevitably the sentence had to custodial. But it was plain that he needed treatment. I therefore made a hospital order for a period of three months.

The Appellant has not appealed against conviction but attached to his notice of appeal was a note addressed to the Superintendent of Siu Lam indicating that he had not pleaded guilty (or at least had not intended to plead guilty) to one of the charges. A perusal of the transcript of the proceedings will quickly show what in fact took place and that he did plead guilty to both charges and that he intended to."

6. From a reading of the transcript of the proceedings (during which the appellant was represented by a duty lawyer) it is plain that what in fact happened was this.

7. When the first charge was put to him the appellant pleaded guilty and admitted the statement of facts which was read over to him.

8. When the second charge was put to him the appellant also pleaded guilty to it but when the summary of facts relating to that charge was read over to him the appellant told the learned Magistrate that there was something he did not agree with - that whilst he had taken that compact disc intending to steal it he noticed that a security guard was following him down an escalator after he had left the store and he therefore decided to return to the store to pay for that compact disc.

9. To ensure that there could be no misunderstanding as to what the appellant was admitting the learned Magistrate asked him this question:-

"So you agree ... that the facts are correct insofar as they indicate that you took the CD from the shelf, you removed its security tag, you put it into a plastic bag that you were carrying and you then left the shop without paying for it?"

"I agree to that evidence" replied the appellant.

10. The learned Magistrate then proceeded to consider the question of sentence in respect of both offences and there followed an exchange between him and the appellant's lawyer from which it was plain that the learned Magistrate was contemplating the making of a hospital order.

11. At this stage of the proceeding, the appellant asked if he could say something and he announced that he didn't wish to stay in Siu Lam because he suffered there and that because he was mentally very fit a more appropriate place for him would be Eastern Hospital.

12. When the learned Magistrate then told the appellant that he had no power or jurisdiction to send him to Eastern Hospital and that he must go to Siu Lam the appellant replied by saying:-

"In that case, I am determined not to plead guilty."

13. It follows from what I have just recited that the appellant entered an unequivocal plea of guilty to both offences; that he admitted the facts of those offences and that he was sentenced for them. Plainly he could not change his pleas - or either of them - simply because he did not want to be sent to Siu Lam.

14. Let me at this stage say that I am grateful to the Director of Legal Aid for granting aid in this case for counsel "to provide assistance" to both the appellant and the court.

15. Mr Kevin Wong who appeared upon those instructions certainly did that. He told me that having spoken to the appellant he (the appellant) wished to be released from Siu Lam immediately because

(a) the offences were not serious;

(b) he wanted to go home and, if allowed to do so, he promised to attend for outpatient treatment; and

(c) he would behave himself and not steal anything else.

16. As I said to the appellant in dismissing his appeal I am not without sympathy for his predicament and that whilst I might accept his assurances one reason for his being in Siu Lam was so that he might receive treatment and help and that it was important that that treatment be continued for the full period of 3 months - he being due to be released on 6 October.

17. It was for these reasons that I dismissed this appeal.