HKSAR v. FUNG KAM DICK, ANDREW

HCMA 13/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 13 OF 2002

(ON APPEAL FROM ESC 1401/2001)

____________

____________

_______________

J U D G M E N T

_______________

1. The appellant was convicted of 3 offences of indecent assault at Eastern Magistrates Court on 27 November 2001. He was given an 'absolute discharge' in respect of each offence on 11 December 2001.

2. The appellant appeals against his convictions.

3. Both the appellant and his so called 'victim' were patients in the Kwai Chung Psychiatric Hospital.

4. In his statement of findings what the learned Magistrate said, inter alia, was this:-

"I carefully considered all the evidence and the submissions made. I was satisfied so I was sure, applying the principles established in Court [1988] 2 All ER 221, in respect of each charge:

(i) that the appellant intentionally assaulted PW1;

(ii) that each assault was capable of being considered by right minded persons as indecent; and

(iii) that the appellant intended to indecently assault PW1.

The defence case being that the acts of indecency occurred with the consent of PW1 the burden was on the prosecution to prove the absence of consent in respect of each charge. Having carefully considered all the evidence and the submission made by Mr Mui on behalf of the appellant I found that I was left with a doubt as to whether or not PW1 consented to the acts of the appellant. I therefore proceeded on the basis set out in that PW1 was willing to be touched by the appellant. In other words that PW1 consented to the appellant touching her and/or the appellant reasonably believed that she was consenting.

By virtue of section 122(4) of the Ordinance a woman who is a mentally incapacitated person cannot in law give any consent, which would prevent an act being an assault. PW1 was found to suffer from mild grade mental retardation with behavioural disturbances. PW1 was noted as having a mental age of between 9 and 12......

I was satisfied on the medical evidence placed before me that PW1 was a mentally incapacitated person as defined in section 117 of the Ordinance, namely that she was mentally handicapped (within the meaning of the Mental Health Ordinance, Chapter 136) which was of such a nature or degree that PW1 was incapable of living an independent life or guarding herself against serious exploitation.

Section 122(4) further provides that a person is only to be treated as guilty of indecently assaulting a mentally incapacitated person by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a mentally incapacitated person. In my view it is for the prosecution to prove beyond reasonable doubt that the appellant knew or had reason to suspect PW1 was a mentally incapacitated person.

Having carefully considered all the evidence, in particular that at the time both PW1 and the appellant were patients at the Kwai Chung hospital, which is a psychiatric hospital; and that they had known each other for around half a year I found I was satisfied so I was sure that the only inference to draw was that the appellant knew or had reason to suspect PW1 to be a mentally incapacitated person......"

5. So far so good. However the learned Magistrate, being aware that the appellant was himself a patient in the Kwai Chung Psychiatric Hospital, apparently did not address his mind to the appellant's mental condition and his capacity for 'knowledge or suspicion' in considering section 122(4) and he apparently proceeded to convict the appellant solely upon the inference which I have recited.

6. Had the learned Magistrate (being alerted to the condition of the appellant who has himself been receiving treatment for a mental condition for over 20 years) called for a medical report in respect of him; or had counsel for the appellant at trial (prior to his client's conviction) brought to the attention of the Magistrate the contents of a medical report concerning the appellant of which he (counsel) was in possession, the Magistrate would not (I suggest,) have so readily drawn the inference which he did draw.

7. As I understand the position that medical report was not brought to the Magistrate's attention until after he had found the appellant guilty and at a time when he was considering sentence.

8. Inter alia, what that report (which is on the court's file and which is dated 27 November 2000) says about the appellant at paragraph 4 is this:-

"Concerning the incidents that he was suspected to have indecently assaulted a female defective of Kwai Chung Hospital...he was not under direct influence of his psychiatric disorder. He did not know the nature of the mental illness/mental handicap of that female patient."

9. That was, of course, vitally important evidence concerning the issue of whether or not the appellant "knew or had reason to suspect that the (victim) was a mentally incapacitated person as defined in the Ordinance" and it was evidence (at whatever stage of the trial it was shown to the Magistrate) which simply could not be ignored or glossed over.

10. The content of that medical report, and in particular paragraph 4, shows that the conviction of the appellant was unsafe and unsatisfactory and accordingly the appeal is allowed; the conviction is set aside and the absolute order of discharge is quashed.