HKSAR v. CALVIN, DANIEL GEORGE

HCMA 393/2025

[2026] HKCFI 5235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 393 OF 2025

(ON APPEAL FROM WKCC 900096 OF 2025)

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BETWEEN

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REASONS FOR JUDGMENT

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Introduction

1.  The Appellant was charged with one count of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210. The charge alleged that the Appellant on 15 August 2025 at 7-Eleven Food Store (“the store”) at the Hong Kong International Airport stole one chicken leg valued $24, the property of the Dairy Farm Company Limited.

2.  The magistrate imposed on the Appellant a Hospital Order for 3 months. The Appellant then filed a Notice of Appeal to a Judge Against an Order.

3.  At the hearing, I allowed the appeal and set aside the Hospital Order. I said I would hand down my reasons in due course. This I now do.

Proceedings in the court below

4.  It is noted in the Reasons for the Order that the trial of the Appellant's case was fixed for hearing on 6 October 2025. On that day, the magistrate noted that the Appellant was not legally represented and therefore asked whether he wished to seek legal advice and obtain legal representation. The Appellant did not respond to these questions. When the Appellant was called upon to enter a plea, he again gave no response. The magistrate then explained to the Appellant that if he chose not to respond, the court would treat his silence as a plea of not guilty. Despite this explanation, the Appellant still did not respond to the court.[1]

5.  The magistrate then noted that there were two psychiatric reports issued by the Siu Lam Psychiatric Centre, both of which recommended that a three-month hospital order be made in respect of the Appellant. The magistrate then stated:[2]

“...therefore the proceeding shall be one of the prosecution, proving the act of the offense and the court shall then consider whether the hospital order shall be imposed on the defendant.”

6.  At this stage, I must point out that both psychiatrists were of the opinion that the Appellant was mentally fit to plead.

Prosecution case

7.  The prosecution called three prosecution witnesses. PW2 and PW3 were police officers. In summary, PW2 witnessed the Appellant’s taking a chicken leg from the store’s refrigerator and subsequently reheating it. The Appellant then discarded the packaging, consumed the chicken, and left the store without making payment. PW2 followed the Appellant outside the store, at which point PW3 joined him. They then intercepted and arrested the Appellant outside the store. PW1 was the supervisor of the store. PW1 reviewed the CCTV footage, stock list and sales records, and confirmed that no payment had been made.[3]

8.  Having provided a detailed account of the testimony of each prosecution witness, the magistrate informed the Appellant, at the conclusion of each witness’s examination-in-chief, that he had the right to cross-examine the witnesses. However, the Appellant did not respond. When asked whether he understood his right to cross-examine and whether he had any questions for them, the Appellant did not respond directly, but instead slightly shook his head, indicating that he did not want to ask any questions.[4]

9.  The magistrate ruled that the act of the charge was proved. He explained to the Appellant his right to elect to give evidence or not. The Appellant did not respond.[5]

10.  The magistrate then said he was satisfied that the prosecution had proved the act of the case beyond reasonable doubt. Having considered the two psychiatric reports, the magistrate ordered the admission of the Appellant to the Siu Lam Psychiatric Centre for three months pursuant to section 45 of the Mental Health Ordinance, Cap. 136 (“the Ordinance”).[6]

Grounds of Appeal

11.  On 16 October 2025, the Appellant submitted a Notice of Appeal to a Judge Against an Order on which he wrote down these words in legible form “The result of the sentence is too serious”.

Consideration

12.  For the discussion below, it is necessary to cite the full text of section 45(1) of the Ordinance:

“(1) Where—

(a) a person is—

(i) convicted by the Court of First Instance or a District Court of an offence other than an offence the sentence for which is fixed by law;

(ii) convicted by a magistrate of an offence punishable on summary conviction by imprisonment; or

(iii) charged before a magistrate with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission; and

(b) the court or magistrate is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46 that—

(i) such person is a mentally disordered person; and

(ii) the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment; and

(c) the court or magistrate is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of such person, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

the court or magistrate may by a hospital order authorize the admission of the person to and his detention in the Correctional Services Department Psychiatric Centre or a mental hospital specified in the order or, if the person is under 14 years of age, in a mental hospital specified in the order, and may specify in the order the period during which such person should be so detained which shall not be greater than the sentence which the court or magistrate could have imposed in respect of the offence with which such person was charged.”

13.  As described in the preceding paragraphs, after noting the recommendation that a three-month hospital order be made, the magistrate stated:

“…therefore the proceeding shall be one of the prosecution, proving the act of the offense and the court shall then consider whether the hospital order shall be imposed on the defendant.” [7]

14.  It follows, more likely than not, that the magistrate had in mind s 45(1)(a)(iii) of the Ordinance and intended to conduct the proceedings on the basis that the prosecution was required to prove only the actus reu of the offence.

15.  The Respondent shared this view and submitted that:

“…it was clear from the Magistrate’s reasons that he was dealing with the Appellant under section 45(1)(a)(iii) of the Mental Health Ordinance, Cap. 136, as he was satisfied that the prosecution had proved the act of the case beyond reasonable doubt and stated that the Appellant would have no criminal record for this charge.”[8]

16.  The manner in which the proceedings were conducted in the court gives rise to concern.

17.  Ordinarily, the procedure under s 45(1)(a)(iii) of the Ordinance is invoked only where the accused has been found unfit to plead.

18.  In the present case, however, both psychiatrists opined that the Appellant was fit to plead. It is therefore unclear why the magistrate appeared to proceed under s 45(1)(a)(iii).

19.  On the other hand, the proceedings appeared to have commenced as an ordinary trial. Following the examination-in-chief of each prosecution witness, the magistrate explained to the Appellant his right to cross-examine the witnesses. Further, having presumably ruled that there was a case to answer, the magistrate explained to the Appellant his right to elect whether to give evidence or not.[9]

20.  First, it would not have been appropriate for the magistrate to have conducted the proceedings pursuant to s 45(1)(a)(iii) given that the Appellant had been found fit to plea.

21.  Secondly, if the magistrate intended to conduct the proceedings as a trial, he ought to have returned a verdict. In light of his finding that the Appellant lacked the requisite mens rea, he should have acquitted him and then proceeded to consider whether a hospital order ought to be made under s 45(1)(a)(iii) of the Ordinance.

22.  As the Respondent submitted, where a magistrate is satisfied that an offender committed the acts constituting the actus reus, but is not satisfied, by reasons of the offender’s mental condition, that the requisite mens rea has been proved, the magistrate may acquit the offender and then go on to deal with the offender under s 45 of the Ordinance: R v Tang Yau Chi[10].

23.  In R v Tang Yau Chi, the magistrate acquitted the defendant of two offences, namely loitering in a public place and resisting a police officer in the due execution of his duty. The magistrate was subsequently satisfied, on the basis of two medical reports, that the defendant was a mentally disordered person and the nature of his mental disorder warranted his detention at Siu Lam Psychiatric Centre for treatment. She therefore disposed of the case by making an order under s 45(1)(a)(iii) of the Ordinance. On appeal, Power J.A. said:

“It seems to us clear that when a magistrate acquits in such circumstances and then proceeds to deal with the offender under s.45 he is doing no more than saying that he is not prepared to convict because he has doubt as to mens rea and having given that indication is perfectly entitled to go on and deal with the offender under s.45 which is what the magistrate did in the present case”.

24.  The circumstances in Tang Yau Chi are different from those in the present case. Here, the magistrate appeared to have conducted a trial but did not return a verdict. Instead, it appears that he adopted the procedures under s 45(1)(a).

25.  In light of the circumstances set out above, it appears to me that two distinct procedures, namely an ordinary criminal trial and proceedings under s 45(1)(a)(iii) were conducted concurrently in the court below. As the hospital order imposed on the Appellant appears to have been the product of those procedural irregularities, I would allow the appeal and set aside the hospital order.

26.  One further matter should be noted. The Appellant appeared to have stood mute in the proceedings below despite having been found fit to plead. In such circumstances, a magistrate should bear in mind section 51 of the Criminal Procedure Ordinance, which provides where a person stands mute of malice, or will not answer directly to the indictment, the court may order a plea of not guilty to be entered on his behalf, and he shall then be treated as having pleaded not guilty.