HKSAR v. LAM CHUNG SAN

CACC93/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.93 OF 2004

(On appeal from DCCC 1099 OF 2003)

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J U D G M E N T

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Pang J (giving the judgment of the Court) :

Background

1. The applicant pleaded guilty to one charge of attempted robbery in the District Court.  The facts based upon which the applicant was convicted were that at round noon on 27 September last year, he went into a bank in the Yaumatei area.  He then produced a piece of paper upon which was written the Chinese characters “robbery” to one of the bank tellers who then promptly alerted her manager and a report was made to the police.  In the meantime the applicant tried to retrieve the piece of paper without success.  He then went to the 2^nd floor of the bank, sat on a sofa, and helped himself to a cigarette.

2. When the police arrived at the scene the applicant produced a fruit knife and confronted the officers who then responded by drawing their service revolvers.  The applicant then surrendered and was arrested and taken into custody.  The activities were recorded on the bank’s surveillance cameras.  Under caution, the applicant admitted that he came to the bank to rob.

3. In the course of his mitigation address, counsel for the applicant in the court below alerted the judge to the fact that the applicant was a mental patient and was receiving out-patient treatment at the time of the offence.  The judge, quite properly, called for two psychiatric reports pursuant to the Mental Health Ordinance, Cap.136 (“the Ordinance”).  In their respective reports both dated 16 February 2004, Dr S.H. Lui and Dr K.C. Tso, both psychiatrists diagnosed the applicant to be suffering from chronic schizophrenia which required in-patient treatment in a mental institution.  Dr Lui’s recommendation reads :

“Opinion:      Lam is suffering from a chronic mental illness, namely schizophrenia which requires psychiatric treatment on a long-team basis.  At the same time his personality is also at issue.  A Hospital Order under Section 45 of the Mental Health Ordinance is appropriate, and for that I would recommend the period to be not less than one year.  In the event of an ordinary sentence being passed, however, LAM will receive similar psychiatric service – he will be transferred back to Siu Lam Psychiatric Centre at least initially.”

Dr Tso gave the following opinion and recommendation :

“Opinion:     LAM is suffering from a mental illness, namely schizophrenia.  There was also personality problem.  Long-term psychiatric treatment is necessary.  If the court sees it fit, I would respectfully recommend a hospital order, under Section 45 of the Mental Health Ordinance, for not less than one year.”

4. In passing sentence, the judge understandably followed the psychiatrists’ recommendations and imposed a Hospital Order pursuant to section 45 of the Ordinance.  in the following terms :

“      I order that he be admitted to and detained in Siu Lam Psychiatric Centre for a minimum of 12 months.” (our emphasis)

It is against this order that the present appeal is being brought.

The grounds

5. Ms Remedios, counsel for the applicant, who did not appear in the court below advanced two grounds of appeal :

(i)                the judge was wrong in failing to specify a period for the hospital order; and

(ii)              in the light of two subsequent psychiatric reports dated 30 April and 9 September by Dr S.H. Lui the original Hospital Order should be set aside and be substituted by one with a specific term.

6. We see fit to admit both subsequent psychiatric reports at this hearing.  In the report dated 30 April Dr Lui made the following observation :

“… given his apparent stable condition now I may not need to keep him in Siu Lam Psychiatric Centre for more than a year.”

7. In the latest report prepared in September the same doctor observes :

“Given his apparent stable condition I may not need to keep him in Siu Lam for more than six to nine months.”

Effect of Hospital Orders

8. A convicted person who is the subject of a Hospital Order made under the Ordinance is treated as a patient who is suffering mental illness and requires treatment in a secure setting either as protection for the patient himself or for the protection of the general public.

9. A Hospital Order can be of indeterminate duration or it can be for a fixed term.  For the former, the patient would be discharged if the superintendent of the mental institution is of the view that the patient is sufficiently cured or that his mental illness is in remission.

10. For a patient detained under a Hospital Order with a specified term, the patient can either be discharged at the end of the term pursuant to section 50 of the Ordinance or, if the superintendent considers him to be not sufficiently well for discharge, the patient can be certified under the provisions of section 36 for continued treatment in the institution.  The patient would then be subject to discharge pursuant to the provisions of section 42A if his condition improves.  The relevant part of the section reads :

“      (1)… a patient who is for the time being liable to be detained shall cease to be so liable if there is made in accordance with this section an order in writing discharging him from detention…”

11. A patient who has been detained for treatment for over two years can also be discharged by order of the Mental Health Review Tribunal under Part IV A of the Ordinance when the patient comes before the Tribunal for review.

Problem posed by the present Order

12. The present order creates difficulties because of the apparent uncertainty on the face of it.  While the minimum term was specified as 12 months, the exact period of detention remains unclear.  Is the applicant to be released when the 12-month period expires or is he to be released at a date thereafter?  The Order made by the judge belongs to neither category of Hospital Orders which we have identified earlier.  In our view the order imposed is inconsistent with the provisions of section 50 of the Ordinance which reads :

“No person shall be detained—

(a)    in pursuance of a hospital order, being an order authorizing his detention for a specified period, after the expiration of that period; …

unless he is detained under Part III [section 36] otherwise than as applied by this Part.”

13. The problem confronting the psychiatric institution is thus this : upon the expiration of the 12-month minimum period, it is not clear whether the institution would have power pursuant to the court order to further detain the patient if his mental condition is not such that he can be discharged.

14. Further, if the superintendent of the psychiatric institution considers the patient is not sufficiently fit for discharge, then it would be for him to certify the patient for further detention for treatment under section 36 of the Ordinance.  But subsection (4) of section 36 provides that such procedures shall not be commenced more than 30 days before the date when the patient would, in the absence of such procedures, be discharged from detention.  The obvious question is when does the 30-day period starts to run?  It makes no sense if it is to run 30 days before the end of the minimum term because the institution is not bound to release the patient at the end of the minimum period specified by the court.  Under the present order the release date of the applicant is uncertain so that time under subsection (4) cannot, in our view, start to run.

15. Counsel for the respondent relies on the following passage in R. v. Tsui Chung Leung [1979] HKC 419 as authority for the proposition that it is appropriate for the district judge to make the Hospital Order in the form as he did in the present case.  The relevant passage reads :

“In our view, it is proper for a court to issue a mental health order without any period being specified therein, unless the medical opinion of psychiatric specialists … is to the effect that the patient can confidently be expected to be fit for release within a specified period.

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.”

16. With respect, we do not think counsel is correct in his interpretation of the above passage.  The case was decided before the present legislation came into operation.  The Hospital Order under appeal in Tsui’s case is one of unspecified term and was, not like the present order, which only specified a minimum term.  The case should not be read and interpreted as such an authority.  A Hospital Order specifying a minimum term is not an appropriate one to make for the reasons we have stated above.

17. Our view is that, given the uncertain nature of the order, and the present condition of the applicant as disclosed in the most recent psychiatric report, this appeal ought to be allowed to the extent that the original order be set aside and substituted by the following order : the applicant be admitted to and detained in Siu Lam Psychiatric Centre for a period of 12 months pursuant to the Mental Health Ordinance.  The effect of this order is that if, at the end of the 12-month period, the applicant’s mental illness is in remission, then he would be discharged by the Siu Lam Psychiatric Centre pursuant to section 50.  Otherwise, he can be detained for further treatment pursuant to section 36 of the Ordinance.

Conclusion

18. The application for leave to appeal against sentence is granted.  We treat this hearing as the appeal itself and the appeal is allowed to the extent which we have indicated.