HKSAR v. CHAN WAI HUNG

CACC 283/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 283 OF 2008

(ON APPEAL FROM DCCC No. 145 of 2008)

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J U D G M E N T

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

Introduction

1.  On 16 January 2008 at about 10 p.m., the applicant (Chan Wai Hung), armed with a cutter knife, threatened the staff of a 7-11 convenience store in Taikoo Shing by declaring robbery and demanding money. The staff did not succumb to the applicant’s demand, but struggled with him. Not only did the applicant have to flee empty-handed, he was hotly pursued by the staff and then subdued with the assistance of a security guard. The applicant was subsequently handed over to police officers.

2.  The applicant admitted under caution that he intended to rob the 7-11 convenience store because he was in need of money.

3.  The incident led to a charge of attempted robbery against the applicant.

4.  The applicant pleaded guilty to the charge and on 5 August 2008, appeared before Deputy District Judge Woo in the District Court for sentence.

5.  As the applicant had a history of mental illness, psychiatrists’ reports were made available to the judge. According to the psychiatrists, the applicant suffered from Refractory Schizophrenia with persistent psychotic symptoms. Despite a 5-month aggressive treatment by newer generation antipsychotic drugs, the applicant’s condition became static and his hallucination did not improve even on further increased dosage. The applicant reported to be still hearing non-existing voices telling him to do strange things.

6.  The psychiatrists found it difficult to predict how much more time was necessary to stabilize the applicant’s mental sate, but in view of his resistant symptoms, longer period of inpatient treatment was regarded as necessary.

7.  On the recommendations of the psychiatrists and in accordance with s 45 of the Mental Health Ordinance, the judge sentenced the applicant to be detained at Siu Lam Psychiatric Centre for an indefinite period.

8.  The applicant then sought leave to appeal against sentence, claiming that “the sentence was too long” and that he should be given a “fix-term sentence”.

9.  The applicant’s application for leave to appeal against sentence was set down for hearing on 17 December 2008 before the Court of Appeal (Cheung and Yeung JJA) and on 20 November 2008, Cheung JA directed that updated psychiatric reports be prepared and made available.

10.  The updated psychiatric reports indicated that the applicant had all along been feigning his psychotic symptoms with a view to get a “shorter sentence”.

11.  It may be necessary to set out the relevant parts of the medical reports in full.

12.  Dr Amy Liu in her psychiatric report dated 12 December 2008 stated:

“As recorded in my previous reports, (the applicant) complained of persistent psychotic features, characterized by auditory hallucination and persecutory delusion, even at the interview in July 2008, after 5 months of aggressive psychiatric treatment. In view of refractory symptoms with poor response to psychiatric treatment, he was recommended and finally convicted and sentenced to a hospital order of an unspecified period.

Yet, when I saw him on 3/11/08, (the applicant) alleged that all he told me on the psychiatric illness were lies. He alleged that he actually feigned the psychotic symptoms all along, from the very beginning. He claimed that he made up the symptoms in front of the psychiatrist ..so that a housing transfer could be arranged for him. He said he had ‘played too big’. Therefore, the psychotropic drug, namely Olanzapine was tailed off. On 21/11/2008, he told me that actually he feigned symptoms at… to get benefit and he feigned the symptoms at … because he wanted to get a shorter sentence. He repeatedly asked me to give him a Hospital Order of specific period of 9 to 12 months, as he did not ‘expect’ a Hospital Order of ‘unspecified period’.

However, later he was seen by another attending psychiatrist, Dr R Ho on 24/11/2008. He told Dr Ho that he was actually lying to me on 3/11/2008 and 21/11/2008. He told Dr Ho that, actually he did suffer from psychotic symptoms, despite the symptoms disappeared after he was treated with Olanzapine since April 2008. Nevertheless, after he was sentenced to Hospital Order of unspecified period, he lied to me because he believed by denying to have any mental illness, he could be discharged. Yet, he lied to me and Olanzapine was tailed off on 21/11/2008, his psychotic symptoms re-emerged. He started to hear multiple third person non-existing voices, either calling his name or telling him to clean the floor. Olanzapine was therefore resumed by Dr Ho.

(The applicant) was seen by me and Dr Ho again on 12/11/2008. He still gave very inconsistent histories at the beginning. After repeated prompting and confrontation, he finally admitted that his psychotic symptoms actually settled after being treated on Olanzapine in April 2008. Thereafter, he feigned the symptoms because he was afraid of being sentenced to long sentence. Yet, after he was sentenced to unspecified Hospital Order, as he was discontented on the sentence, he lied to me again, saying all his symptoms were faked from the beginning, so that he could get rid of the unspecified Hospital Order.”

13.  Dr Liu was of the view that the applicant was an extremely unreliable person who repeatedly manipulated the medical and legal systems with a wish to get a short sentence. Dr Liu concluded that the applicant’s mental illness was well controlled since April 2008 as he responded well to Olanzapine, and that the Hospital Order is no longer necessary in view of his current stable mental state.

14.  Dr R Ho was of the same view. In his report dated 12 December 2008, Dr Ho reached the following conclusion:

“The prisoner does indeed suffer from Schizophrenia. However, it appears that it was in remission after his psychotropic medications were adjusted in April 2008. His schizophrenia remained in remission until November 2008 when all his psychotropic medications were stopped for drug-free observations in view of what he told his case medical officer regarding never suffering from any psychotic symptoms in the past. He suffered from a mild relapse of his mental illness shortly afterwards. After he was restarted on psychotropic medications, his symptoms quickly subsided and his Schizophrenia is currently again in remission.”

15.  From the medical reports, it is clear that the applicant feigned his symptoms in order to get a Hospital Order and when he was not satisfied with the Hospital Order for an unspecified period, he sought leave to appeal with a view to secure a Hospital Order for a shorter duration.

16.  On 17 December 2008 when the application for leave to appeal came before the Court of Appeal, the applicant, having had the contents of the updated medical reports and their implications explained to him, indicated through his counsel that he wished to abandon his application.

17.  The court then adjourned the hearing and made the following direction:

1. submissions be filed as to whether the Court of Appeal has jurisdiction to accept an application to withdraw the application for leave to appeal against sentence in the circumstances;

2. submissions to be filed as to whether it is appropriate to substitute a different sentence in view of what the applicant has done in relation to what he told the doctors; and

3. the Court of Appeal would be constituted by a bench of three.

18.  On 7 February 2009, the applicant filed a Notice of Abandonment, purportedly in accordance with Rule 39 of the Criminal Procedure Rules (“Rule 39”), indicating that he would abandon all further proceedings in regard to his application for leave to appeal against sentence.

The Issues

19.  There is no dispute that the issues before the Court are two-fold, namely:

(1)   Whether the applicant is entitled to file the notice of   abandonment/withdraw his application for leave to appeal against sentence to bring an end to the proceeding; and

(2)   If he cannot abandon/withdraw as a matter of right, whether the court should substitute a sentence of imprisonment under s 83I(3) of the Criminal Procedure Ordinance.

The Applicant’s Position

20.  Mr Andrew Bruce SC, on behalf of the applicant, submits that as the applicant had filed a Notice of Abandonment, his appeal is deemed to be dismissed under Rule 39 and that would be the end of the matter.

21.  Alternatively, Mr Bruce argues that the court should nevertheless grant leave to the applicant to abandon his application. Mr Bruce emphasizes that the court should only exercise the power to increase a sentence sparingly and only in cases where the sentence imposed by the trial court was manifestly inadequate.

22.  Mr Bruce refers to Oliver v R [2007] 4 LRC 30 in which the Privy Council, in considering a similarly worded provision as s 83I(3) of the Criminal Procedure Ordinance, held:

“(a) the power to increase a sentence must be sparingly exercised and then only in cases where the sentence imposed by the trial court was manifestly inadequate; in all cases the reasons for exercising this drastic power must be explained;

(b)  an appellate court which is considering an increase in sentence should invariably give an Applicant for leave to appeal or his counsel an indication to that effect and an opportunity to address the court on such an increase or to ask for leave to withdraw the application.”

23.  Mr Bruce suggests that the court should, in any event, adopt a lower starting point in view of the applicant’s mental condition.

Discussion

24.  The applicant clearly had manipulated the medical and legal systems in order to obtain a sentence that he desired. By feigning his symptoms, he successfully misled the judge into making a Hospital Order that should not have been made. By abandoning/withdrawing his application, the applicant is trying to remove from this Court the power of sentencing him to what his crime truly deserves.

25.  As the applicant is no longer suffering from mental illness that requires further inpatient treatment, the applicant can apply to the Mental Health Review Tribunal under s 59B of the Mental Health Ordinance to be immediately discharged on the recommendations of his latest medical reports. If the applicant succeeds, he gets what he wants by his deceptive manipulation of the systems.

26.  It will indeed be against the proper administration of justice if the applicant is allowed to do what he tries to do.

27.  Rule 39 allows an appellant to abandon an appeal and provides a cut-off time for giving a Notice of Abandonment in the following terms:

“An appellant may, at any time before the hearing thereof, abandon his appeal by giving notice of abandonment therefore to the Registrar in Form VII, and upon such notice being received by the Registrar the appeal shall be deemed to have been dismissed by the Court of Appeal.”

28.  Mr Bruce suggests that a distinction should be drawn between “an appellant” in an appeal and “an applicant” in an application for leave to appeal.

29.  Mr Bruce argues that as the applicant is only an applicant engaging in an application for leave to appeal and not yet “an appellant” in the hearing of an appeal, he is still entitled to file a Notice of Abandonment in accordance with Rule 39, which was what he did on 7 February 2009.  Mr Bruce emphasizes that the “hearing” in Rule 39 refers to a hearing of the appeal proper and not a hearing of an application for leave to appeal.

30.  Mr Bruce suggests that in the circumstances, Rule 39 bites and the applicant’s appeal shall be deemed to have been dismissed and that is the end of the matter.

31.  A person who has been convicted of an offence on indictment may appeal to the Court of Appeal against any sentence (s 83G, Criminal Procedure Ordinance), but only with the leave to the Court of Appeal (s 83I). Because of the need to apply for leave to appeal, the Court often refers to an appellant as an applicant to reflect the status of the application.

32.  The Criminal Appeal Rules (“the Rules”) do not distinguish between “an appellant” and “an applicant” or the hearing of an appeal and the hearing of application for leave to appeal. Rule 3 of the Rules provides:

“A notice of appeal, notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant…” (Italic emphasis added)

33.  Rules 34 to 38 set out the procedures of an appeal and they refer to the filing of a notice of appeal, notice of application for leave to appeal or notice of application for extension of time to appeal, and a convicted person who wishes to appeal and file any of those notices is referred to as “an appellant”.

34.  Rule 38 further provides that “where the Court of Appeal has given an appellant leave to appeal, it shall not be necessary for the appellant to give any notice of appeal and the notice of application for leave to appeal shall be deemed to be a notice of appeal”.

35.  The Criminal Appeal Rules make no separate provision for an application for leave to appeal at all. Indeed, as rightly pointed out by Mr Robert SK Lee SC for the respondent, s 2 of the Criminal Procedure Ordinance specifically provides that “‘appellant’ includes a person who has given notice of application for leave to appeal”.

36.  Mr Bruce concedes that an “appellant” in Rule 39 includes an “applicant”, but argues that “hearing” referred thereto is confined to the hearing of the appeal only.

37.  We do not find Mr Bruce’s argument convincing. Once it is accepted that an “appellant” in Rule 39 includes an “applicant”, the hearing referred thereto must necessarily include the hearing of the application for leave to appeal and not just the hearing of appeal proper.

38.  The Court of Appeal in HKSAR v Tang Kwok Kei, CACC 508/2000, when construing the effect of Rule 39, did not distinguish between an “applicant” and an “appellant” or the hearing of the appeal and the hearing of the application for leave to appeal. The Court of Appeal further ruled that the right to abandon an appeal under Rule 39 stops when the Court begins to hear the application for leave to appeal. Stuart-Moore VP, in giving the judgment of the Court, said at para. 5 of the judgment:

“By contrast to a formal dismissal under Rule 39, when an applicant informs the Court of Appeal of his desire not to proceed at the hearing of his application for leave to appeal, consideration has been given to the merits of the appeal by the court. No such consideration is involved under the Rule 39 procedure. The court may or may not accede to the request when it is made to the court and it is difficult to imagine that any court, faced with what it considers at first sight to be a meritorious application, would allow an applicant to abandon his appeal merely because he had stated that he did not wish to proceed with it.”

39.  We have no hesitation to conclude that an “appellant” in Rule 39 includes an “applicant” for leave to appeal. Likewise, the “hearing” referred thereto includes the hearing of an application for leave to appeal.

40.  Otherwise, again as Mr Lee rightly points out, there may not be a valid means available to an “applicant” to abandon his appeal or his application for leave to appeal. There can even be far reaching implication as recognized by Mr Bruce, e.g. in an application for leave to appeal against sentence when the court indicates an intention to increase the sentence or order “a loss of time”, the applicant can there and then file a Notice of Abandonment to avoid the undesired orders.

41.  In our view, since the commencement of the hearing on 17 December 2008, the applicant is no longer entitled to exercise his right under Rule 39 to abandon his appeal (including his application for leave to appeal) by giving a notice of abandonment.

42.  On 17 December 2008, when the applicant, through his counsel, indicated that he wished to abandon his application, he was not exercising his right under Rule 39, and in any event as the court had already given consideration to the merits of his appeal, he was no longer entitled to exercise such a right. A fortiori he was not entitled to file the Notice of Abandonment on 7 February 2009.

43.  Having concluded that the applicant is no longer entitled to file a notice of abandonment under Rule 39, both Mr Bruce and Mr Lee agree that the court has the discretion to decide whether the applicant’s application to withdraw the appeal should be allowed.

44.  Mr Bruce emphasizes that when the applicant withdrew his application on 17 December 2008, his appeal against sentence had not yet begun and therefore the court should grant his application. Mr Bruce points out that it would only be in the most exceptional circumstances that an application to withdraw an appeal, made before the hearing started, should be declined. Mr Bruce relies on the decision of the Divisional Court in R v Manchester Crown Court, Ex Parte Welby & Another (1981) 73 Cr App R 248.

45.  We do not disagree with Mr Bruce’s submission that refusing a withdrawal of an appeal by the appellant is unusual and exceptional. However, this is indeed a most exceptional case. It is not a situation whereby the sentence imposed on the applicant may be on the low side or even is manifestly inadequate. It is a case whereby the applicant, by deceptive and crafty manoeuvres, obtained an order that should never have been made.

46.  We agree with Mr Lee’s written submission that if we were to accede to the applicant’s request and allow him to abandon/withdraw his appeal, it would have the effect of:

(1)  condoning his fraudulent acts before the medical doctors and trial court;

(2)  permitting him to enjoy the fruits of his fraud : to walk free after about 1 year’s detention rather than serving the normal sentence for the offence that he had committed;

(3)  removing deterrence to a potentially violent robber, and protection to the public; and

(4)  depriving the appellate court of its statutory function under s 83I of the Criminal Procedure Ordinance to substitute an appropriate sentence.

47.  We are firmly of the view that we should exercise our power under s 83I(3) of the Criminal Procedure Ordinance to substitute a proper sentence, namely a term of imprisonment against the applicant, in place of the Hospital Order.

48.  Declaring robbery and demanding money, the applicant used a cutter knife to point at one of the female victims. When his attempt to rob failed, the applicant fled and was only apprehended after hot pursuit. The applicant admitted to the police that he robbed because he was in need of money. When subsequently interviewed under caution, the applicant exercised his right to remain silent. This is not a trivial offence at all.

49.  Applying the guidelines for sentence laid down in Mo Kwong-sang v R [1981] HKLR 610, the proper starting point for the offence should be 5 years’ imprisonment.

50.  The applicant pleaded guilty to the charge and in the normal course of events, he should be entitled to a one-third discount of sentence.

51.  The rationale for a reduction of sentence for guilty plea was examined by the High Court of Australia in R v Cameron [2002] 187 ALR 65. We only wish to quote part of the judgment of Kirby J at p 81:

“The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount…The main features of a public interest, relevant to the discount for a plea of guilty, are ‘purely utilitarian’. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; …”

52.  The applicant’s guilty plea before the judge no doubt had saved considered time and public funds. However his deceptive and crafty manoeuvres resulted in this court having to spend two days dealing with his application. Senior counsel are engaged for both sides, no doubt at considerable public funds as the applicant is legally aided.

53.  We could have, in the circumstances of the case, reduced the one-third discount of sentence for the applicant’s guilty plea to signify the court’s disapproval of the applicant’s conduct.

54.  On the other hand, we bear in mind that the applicant suffered from mental illness, which, as Mr Lee concedes, can be a factor reducing the starting point. “If an accused suffered from a mental disorder this will be of relevance in two ways. First, it affects the assessment of the extent of the objective criminality, and, second, it influences the question of whether the case requires a deterrent sentence” (Cross & Cheung, Sentencing in Hong Kong 5^th Edit, p 356).

55.  In laying down the guideline in Mo Kwong-sang (supra), Roberts CJ further suggested at p 611 H:

“Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

56.  We are persuaded, in the circumstances, that the two factors cancel out and that the applicant should be allowed to retain the one-third discount of sentence for his guilty plea.

57.  We are of the view that the proper sentence to impose on the applicant is 40 months’ imprisonment.

Conclusion

58.  We grant leave to the applicant to appeal against sentence and treating the application as the appeal proper, we allow the appeal. The Hospital Order made by the trial judge is set aside and in substitution a term of 40 months’ imprisonment is imposed on the applicant for the offence of attempted robbery.