HKSAR v. CHAN CHI FUN

DCCC 678/2020

[2023] HKDC 744

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 678 OF 2020

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Reasons for Sentence

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History of the proceedings

1.  No plea was taken from the defendant because of his mental condition. But the defendant himself insists that the proceedings be conducted in English and he does not need the service of an interpreter. The issue of fitness to be tried has to be determined first under section 75 of the Criminal Procedure Ordinance (the Ordinance).

2.  The Prosecution tendered 4 psychiatric reports, exhibited as P1 to P4 under section 65B of the Ordinance. The Defence also submitted 2 psychiatric reports as Exhibit DP1 and DP2. All 4 psychiatrists are of the opinion that the defendant is mentally unfit to stand trial.

3.  On 6 December 2022, the Court made a ruling in accordance with section 75 and ruled that the defendant is unfit to be tried. Accordingly, it proceeded to consider the issue under section 75A to decide whether the defendant did the act as charged. To that end, the Prosecution tendered other witness statements relevant to the facts to be proven under section 65B of the Ordinance. These statements are exhibited as P4 to P26.

4.  On 11 January 2023, the Court ruled that the defendant is a person under disability and did the act charged against him under section 75A of the Ordinance, namely, that he did possess a total of 42 photos of which 43% is classified as Level 4 and 990 videos, of which 67% is classified as Level 4, of child pornography.

5.  Accordingly, the Court called for 2 psychiatric reports under section 76 of the Ordinance and the sentence was further adjourned.

6.  The 2 psychiatric reports called for by the Court, prepared by Dr Ng Hiu-man dated 27 January 2023 and Dr Ng Hoi-yi dated 1 February 2023, did not specify if a Hospital Order is warranted or not. It was concluded that the defendant “suffered from depression, anxiety and autism”.

7.  On 20 February 2023, consequent upon discussion with both parties, this Court called for a social inquiry report and 2 more psychiatric reports with specific instructions. The case was adjourned a few times to 18 May 2023.

The Social Inquiry Report

8.  The 6-page social enquiry report dated 20 April 2023 remarked that the defendant communicated with the investigating officer in fluent English and was able to express his views and feelings clearly (paragraph 12 of the report). The defendant has been residing at Colourful Home (Tsuen Wan) since December 2021. The defendant was cooperative in general and receptive to the supervision of the hostel staff (paragraph 15 of the report). The report said the defendant suffers from depression, autism and anxiety disorder. The defendant has received residential training services in supervised setting since February 2019. The report further stated that “Defendant’s insight into his mental illness also played a role. Existing guidance and supervision to Defendant are viewed to be sufficient to further engage the latter in the community. In addition to Defendant’s good compliance to treatment and medications, Supervision and Treatment order is, therefore, considered not absolutely necessary.”

Further Psychiatric Report

9.  On 19 April 2023, Dr Ng Hoi-yi, Associate Consultant of the Department of Psychiatry of West Kowloon Psychiatric Centre in the report concluded that the defendant “...has been fairly compliant to psychiatric treatment in the community and is currently already residing in a supervised setting. A supervision and treatment order is therefore of little additional benefit to the mental stability of or the prevention of recurrent offence of this patient.”

Order

10.  Given the gravity of this offence and the chance of reoffending, this Court takes the view that it is not in the public interest to consider the option under section 76(b)(iii) of the Ordinance in that the Court can make an order for his absolute discharge.

11.  The defendant has no criminal record in Hong Kong. His education level is up to a Master degree, and worked as a teacher in a primary school prior to the present offence. The defendant was married in 2016 but got divorced a few years later.

12.  It is clear that a Hospital Order under section 45 of the Mental Patients Ordinance is not recommended. Both the Social Inquiry Report and the Further Psychiatric Report seem to suggest that the Supervision and Treatment Order is either “not absolutely necessary” or “of little additional benefit”.

13.  That said, the Court considers carefully section 76 of the Ordinance and Part IIIB of the Mental Health Ordinance, Cap 136. Having regard to all the circumstances of the case, including the nature of the offensive act, the character and antecedent of the defendant and the advice or views of the Director of Social Welfare and the psychiatrist, the Court is of the opinion that the most suitable method of disposing of the case is by means of imposing a Supervision and Treatment Order for a period of 12 months.