HKSAR v. SYED ATTA MUHAMMAD

1997, NO. MA 955

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant is an overseas visitor to Hong Kong. On 24^th September 1997, he was convicted of one count of indecent assault and was sentenced to detention under a Hospital Order in the Siu Lam Psychiatric Centre for three months. He now appeals against conviction and sentence.

2. The complainant in this case was a young lady (PW1). On 1^st September 1997, she was standing outside a shop at Park Lane, Kowloon when the appellant went up to her and grabbed her right breast once, saying at the same time something like "You looked like a prostitute, you stand there to seduce me". The appellant then walked away. PW1 located a police officer who intercepted the appellant. On being questioned, the appellant repeatedly said that he was sent by God to punish women like PW1. When the appellant was asked if he had grabbed PW1's breast, he said he did because her breast was too big.

3. The appellant's case is that he had only placed his hand on the upper part of PW1's clothing to tell her not to dress in such clothes. He denied he had grabbed her breast.

4. The magistrate did not accept his version and found as a fact he did grab PW1's breast and convicted him of the offence.

5. The appellant repeats what he told the magistrate as his ground of appeal and indicates that he is a sick person.

6. This is a question of fact and the magistrate made her findings based on evidence she accepted. The appeal against conviction must be dismissed.

7. On the appeal against sentence, the appellant indicates that he has a hard time in Siu Lam and he wishes to be repatriated as soon as possible.

8. The magistrate had considered two psychiatric reports before she made the Hospital Order. In these reports, both doctors' opinion is that the appellant has been suffering for about a year from a psychiatric disorder, most likely paranoid and schizophrenia, and has not received treatment in the past. There are risks that he may behave irresponsibly under his present mental condition and the doctors recommend a Hospital Order for three months in Siu Lam Psychiatric Centre.

9. The magistrate was of the opinion that imprisonment was appropriate for the behaviour of the appellant in a busy public street but in view of his psychiatric condition, she considered a period of treatment was more appropriate, and accordingly made the Hospital Order.

10. Mr To for the Government points out that the Hospital Order does not specify whether the proviso under s.47(2) of the Mental Health Ordinance, Cap.136 applies. If there is no such mention, it may mean that after three months detention, the appellant may need to go to the Mental Health Review Tribunal first for consideration before he can be released. Mr To submits that three months should be the proper period of detention and the appellant should be sent back to his home country as soon as possible. He asks me to vary the Hospital Order to give effect to that.

11. To ensure that the appellant can be repatriated immediately after his detention in Siu Lam Psychiatric Centre, the Hospital Order is varied by specifying the proviso to s.47(2) of the Mental Health Ordinance does not apply. The appeal against sentence is allowed to this extent.