HKSAR v. YAN HAU PUI

CACC 475/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 475 OF 2000

(ON APPEAL FROM HCCC 26 OF 2000)

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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. The Applicant, who is about 75 years old, appeared before Gall J on an indictment alleging three counts of murder and one count of attempted murder. In short, the prosecution's case was that in the course of a disagreement on 8 October 1999 with one of his co-tenants in a 7th floor flat in Chaiwan, he set fire to the premises using some kerosene which was stored there as fuel for a heater. In the result, three persons, aged between 57 and 90, died in the fire and a fourth was able to escape with relatively minor injuries.

2. On 30 October 2000, a jury was empanelled under the provisions of section 75 of the Criminal Procedure Ordinance, Cap. 221, to determine whether the Applicant was under a disability. The jury heard undisputed psychiatric evidence to the effect that he was unfit to plead. In the result, the jury found that the Applicant was under a disability.

3. Further evidence was then presented under the terms of section 75A of the Criminal Procedure Ordinance to enable the jury to decide whether the Applicant had committed the act which led to the allegations on the indictment. In the course of this part of the proceedings, it was suggested by the Applicant's trial counsel that the fire might have started accidentally. The jury, however, found that the Applicant had committed the act which formed the basis of all the offences charged against him.

4. On 1 November 2000, Gall J dealt with the case by means of an order in the following terms:

"Given the finding by the jury that the accused, Yan Hau-pui, did the acts charged against him in the offences on the indictment, and being satisfied on the evidence of three registered medical practitioners that it is necessary in the interests and the welfare of Yan Hau-pui, I order that he be admitted to Siu Lam Psychiatric Centre."

5. The judge then made a formal correction to the order by following the wording of section 76(2) of the Criminal Procedure Ordinance under which at first, it seems, he had intended to make the order, and said that the order was for admission to the "Correctional Services Department Psychiatric Centre".

6. The court next concerned itself with the disposal of exhibits, and if that is where the matter had stopped all would have been well on the order made by the judge because, in the circumstances of this case, the judge had made the only order which it was open to him to make. Unfortunately, however, as both counsel have candidly admitted, having also conducted the proceedings in the court below, the judge was inadvertently misled by what followed. Firstly, Mr Poll invited him to consider whether, in the circumstances, he should indicate that the order was to run for an indefinite period of time. The judge replied that he thought the matter was entirely up to the authorities to decide. Mr Reading, SC, then joined in the dialogue by correctly suggesting that the detention would be in accordance with section 45 of the Mental Health Ordinance, Cap. 136. The judge then, without further ado, adopted what had been said and stated:

"In that case, for the avoidance of doubt, in case it may be necessary, I order that the admission to the psychiatric centre by Yan Hau-pui be indeterminate."

7. The order duly went out to the Correctional Services Department as a hospital order made under section 45 of the Mental Health Ordinance pursuant to the finding that the Applicant was under a disability as defined in section 75 of the Criminal Procedure Ordinance.

8. Some considerable time later, an amended order went out to the Correctional Services Department making it plain that the order should have been made under section 76(2) of the Criminal Procedure Ordinance.

9. We have reservations as to whether that amended order could have had any real validity, but as the matter is now before us as an application for leave to appeal against sentence, we can ensure that the order is in the proper form. The error, such as it was, is best described as purely formal.

10. Section 76(2) of the Criminal Procedure Ordinance, insofar as it is relevant, provides that:

" Subject to subsection (3), the court shall-

(a) if it is satisfied, on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be psychiatrists on the Specialist Register established under section 6(3) of the Medical Registration Ordinance (Cap. 161)), that it is necessary in the interests or the welfare of the accused person or for the protection of other persons that the accused person be admitted to the Correctional Services Department Psychiatric Centre or a mental hospital, make an order that the accused person be admitted -

(i) in accordance with the provisions of Schedule 4, to that Centre; or ....."

11. Schedule 4, paragraph 1(3) provides:

"Where a person is admitted within the said period to the Correctional Services Department Psychiatric Centre .... under section 76(2)(a), such order shall be sufficient authority for the Commissioner of Correctional Services or the medical superintendent to detain him therein in accordance with section 45 of the Mental Health Ordinance (Cap 136) as applied by paragraph 2 of this Schedule."

12. The order made by Gall J in the terms in which it purported to have been amended was correct in that it should have been made under the provisions of section 76. There was, in those circumstances, no real need for any reference to have been made to the period for which the Applicant should be detained. The psychiatric evidence which was presented to the court below established that the Applicant was suffering from dementia and that his condition would continue to deteriorate. The Applicant was said to be in need of medication and institutional care.

13. We propose simply to make an order under the provisions of section 76 of the Criminal Procedure Ordinance for the admission of the Applicant to the Correctional Services Department Psychiatric Centre. This technical variation to the original order made by the judge under section 45 of the Mental Health Ordinance will make no practical change to the Applicant's position and we make it out of an abundance of caution lest the purported amended order of the judge lacked validity..

14. To this extent, the application for leave to appeal is allowed and the alteration to the order, if it were necessary, is made in the terms we have indicated.