HKSAR v. MEIJNE, CAMILO ARTURO

HCMA 274/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 274 OF 2012

(On appeal from ESCC No 511 of 2012)

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J U D G M E N T

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Introduction

1. The appellant was originally charged with indecent assault in respect of an incident on 6 February 2012.  During the course of the trial in the Magistrate’s Court on 22 March 2012 the charge was amended to common assault to which the appellant pleaded guilty. 

2. The conviction was based on the brief facts submitted by the prosecution which stated that the victim was waiting for a lift and that when it arrived, the appellant who was inside the lift, suddenly stepped forward and push the victim’s right breast once with his left hand and closed the door.  As I will explain later, the evidence of the victim was that the appellant made contact with the victim above her right breast for one second and the CCTV footage showed that the appellant did not push the victim but merely held out his left hand gesturing her not to come into the lift.

3. On sentence a starting point of 21 days’ imprisonment was imposed which was reduced to 14 days’ imprisonment for the plea of guilty.  A suspended sentence of one month imprisonment for an assault occasioning actual bodily harm of which the appellant had been convicted on 18 July 2011 was also activated.  I am informed that this involved an incident with his then wife.  The appellant served his entire sentence at Siu Lam Psychiatric Centre, after which he was then transferred to Pamela Youde Nethersol Eastern Hospital (Pamela Youde Hospital), where he was detained involuntarily for a further 62 days.

The appellant’s mental condition

4. The appellant suffers from severe mental illness and has a long history of Bipolar Affective Disorder and manic episodes and has difficulty coping with stressful situations.  In the lead up to the incident, the appellant was displaying erratic behaviour and obvious signs of an escalation of his mania.  He was diagnosed and treated as suffering from Biopolar Affective Disorder and Manic Relapse at Pamela Youde Hospital and gradually improved after taking medication but deteriorated and fluctuated after he was remanded at Siu Lam Psychiatric Centre. 

5. It transpired that prior to the incident, on 3 February 2012, the appellant’s treating psychiatrist recommended that he be admitted to a psychiatric hospital because of his behaviour.  However, he went missing for 3 days and was not seen until the day of the incident when he was arrested by the police.  The police were notified of his mental history and spoke to his psychiatrist who recommended that he be involuntarily hospitalised under section 31 of the Mental Health Ordinance, Cap 136. But the police instead released him on bail to appear before a magistrate on the following day, 7 February 2012, which he failed to attend.  He turned up at his parents’ home in the early morning of 8 February 2012, in an agitated and distressed state, causing a disturbance by screaming, undressing himself outside his parents’ home and ripping up the charge sheet.  He was eventually taken to the psychiatric ward of the Pamela Youde Hospital after a section 31 order was obtained.  He was prescribed a range of medication to address his mental health problem.  His detention was extended by a further 21 days on 10 February 2012.

6. On 24 February 2012, whilst the mental health order was in force, the appellant was brought before the Magistrate’s Court for plea upon an arrest warrant.  He had been declared mentally stable and fit to attend a court hearing and plead.  At that hearing, because of concern over the appellant’s condition, an order was made for two psychiatric reports on the issue of his fitness to plead.  He was remanded in custody at Siu Lam Psychiatric Centre and his case was adjourned for two weeks for reports.  It appears during this time his mental condition deteriorated and there were episodes of disruptive behaviour by him.  The psychiatric reports confirmed that he suffered from Bipolar Affective Disorder and that he was in the manic phase of that condition.  It was suggested that in the event of a conviction a Hospital Order for a period of 3 months should be imposed.  The psychiatrists declared that he was mentally fit to plead.

7. It would appear that during the course of the trial proceedings, the appellant’s mental condition and psychiatric history were not the subject of submission or evidence before the court.

Hearing for Legal Aid

8. The appellant applied for legal aid to appeal against the conviction and sentence.  His application was refused and this was the subject of a determination before Beeson J who granted an Appeal Aid Certificate, pursuant to rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221(D).  She commented in her decision that it was not possible to discern from the transcript of the trial whether the appellant’s mental condition was known to counsel representing him when his plea was taken and there was an absence of any reference to the appellant’s psychiatric history during mitigation.  She further commented that the psychiatric history of the appellant could have been relevant in several ways. First, it could have affected the decision whether to prosecute at all, and secondly its effect in relation to the alleged incident of the assault and, in the event of conviction, could have been a factor for the magistrate to consider when deciding on the appropriate sentence.

Grounds of Appeal

9. The appellant has a long‑term psychiatric history dating from his early youth.  His condition prior to, during and immediately after the assault incident showed that he had entered a manic phase and required treatment.  Although he was made subject to an order under the Mental Health Ordinance for 21 days he was permitted to attend court and thereafter was not required to go back to hospital, although one doctor declared that in his view the appellant should have completed the full term of the order.

10. In the present appeal the appellant pleaded guilty, and in order for him to succeed, he must persuade the court that he should be permitted to set aside his guilty plea.  The leading authority on this issue is HKSAR v Wong Chi Yuk [2000] 3 HKLRD 125 where the Court of Appeal held that a person convicted of an offence by his own plea of guilty could not generally appeal against that conviction, pursuant to section 113(1) of the Magistrates Ordinance Cap 227, unless a fundamental mistake had occurred that would render the guilty plea a nullity. The Court also held that the circumstances and the extent of the mistake must be sufficient to vitiate the intent of the defendant in pleading guilty, making the act of the plea not the defendant’s true act.  The Court then went on to explain that an unequivocal guilty plea could be rendered a nullity if any of the following circumstances was applicable: (1) the facts admitted by the defendant did not amount to the offence with which he was charged; (2) the admitted facts were equivocal as to guilt; (3) the plea was tendered to be a charge which was defective on its face or invalid or unclear; (4) the plea was tendered involuntarily, for example induced by duress or misrepresentation or was not an exercise of free choice; (5) the plea was induced by fraud or made under a fundamental mistake; or (6) the plea did not result from a deliberate and informed decision. 

11. The issue in the present appeal was whether the appellant entered his plea of guilty involuntarily or did not result from a deliberate and informed decision.  The key question is whether the appellant’s mental state at the time he entered his plea of guilty was such that his plea was not an exercise of free choice or did not result from a deliberate and informed decision. 

12. There were other grounds of appeal raised on behalf of the appellant which I will deal with briefly as they either do not provide a basis to overturn the conviction or are part of the main ground of appeal.   

13. The first ground complained that section 75(4)(a)(ii) read together with sub‑sections (6) and (7) of Criminal Procedure Ordinance Cap 221 required that the magistrate who hears a fitness to plead application should be the same magistrate who hears the trial if the defendant is found fit.  In the present case it was the Principal Magistrate who called for psychiatric reports in order to determine whether the appellant was fit to plead.  He was not the trial magistrate.  The two reports confirmed he was fit to plead although the opinions of the doctors put anyone reading the reports on notice that his condition was fluctuating and he was subject to manic episodes and a relapse of his condition. 

14. Section 75 reads:

“(1) This section applies where on the trial of a person the question arises (at the instigation of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Ordinance it would constitute a bar to his being tried.

(2) The court, if having regard to the nature of the supposed disability is of opinion that it is expedient so to do and in the interests of the accused person, may postpone consideration of the said question (hereinafter referred to as “the question of fitness to be tried”) until any time up to the opening of the case for the defence, and if before the question of fitness to be tried falls to be determined the jury return a verdict of acquittal on the count or each of the counts on which the accused person is being tried that question shall not be determined.

(3) Subject to subsection (2), the question of fitness to be tried shall be determined as soon as it arises.

(4) The question of fitness to be tried shall be determined by a jury, and—

(a) where it falls to be determined on the arraignment of the accused person, then if the trial proceeds the accused person shall be tried by—

(i) where paragraph (a) of the definition of ‘court’ is applicable, a jury other than the jury which determined that question;

(ii) in any other case, the same jury which determined that question;

(b) where it falls to be determined at any later time, it shall be determined by—

(i) where paragraph (a) of the definition of ‘court’ is applicable, a separate jury or the jury by whom the accused person is being tried, as the court may direct;

(ii) in any other case, the same jury by whom the accused person is being tried.

(5) A jury shall not make a determination under subsection (4) except 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)).

(6) In this section—‘court’ (法庭) means—

(a) the Court of First Instance acting in the exercise of its criminal jurisdiction;

(b) the District Court acting in the exercise of its criminal jurisdiction; or

(c) a magistrate;

‘verdict of acquittal’ (無罪的裁決) does not include a special verdict that the accused person is not guilty by reason of insanity.

(7) In this section, any reference to a jury shall, where the trial concerned takes place in the District Court or before a magistrate, be read as a reference to a District Judge or the magistrate, as the case may be.”

15. It is not clear from the record whether the issue of the appellant’s fitness to be tried or the psychiatric reports were considered by the magistrate. 

16. The second ground complained that there was a failure to apply the prosecution policy by addressing the ongoing duty of considering the public interest in prosecuting a case.  This is not a legitimate ground of appeal as a magistracy appeal is a rehearing where the appellate court is required to reach its own independent decision as to whether it is satisfied beyond reasonable doubt of the guilt of the appellant on the record of the evidence given at trial supplemented by any further evidence it may admit. 

17. The third ground complained that as the appellant was required to receive further psychiatric treatment and as he was only two weeks into his treatment he would not have been in a well state of mind.  This ground is subsumed in the ground as to whether the appellant’s plea of guilty was a nullity. 

Plea a nullity

18. A perusal of the transcript when the appellant’s plea to common assault was taken, suggest that he was not entirely sure what was happening, although counsel appearing for the appellant took specific instructions on the point.  But again, it is not entirely clear as to whether the appellant made an informed decision as to his plea.  The relevant passages of the transcript read:

“COURT: So, defendant please listen to the Alternative Charge and tell me how you plead.

ALTERNATIVE CHARGE READ

DEFENDANT: Not guilty to indecent assault, but maybe guilty to common assault.

COURT: Sorry, can we have that again? So, in respect of the Alternative Charge which is the common assault charge, do you or do you not plead guilty?

DEFENDANT: Common assault charge? I’m afraid I do.

COURT: What does that mean? Do you know whether you’re going to plead guilty or not?

DEFENDANT: Well, I – it doesn’t seem to be another option.

COURT: Mr Francis, I’m going to give you another five minutes, please speak to – with the defendant to see whether he is going to plead guilty or not.

…

MR FRANCIS: Yes, your Worship.

COURT: Yes, Mr Francis?

MR FRANCIS: Yes, could the plea be taken again on the Alternative Charge, your Worship?

COURT: Well, in respect – oh, thank, yes. Defendant, the charge has been read to you, do you need it to be read to you again?

DEFENDANT: No, and I apologise for … (indistinct).

COURT: So, in respect of the charge, do you plead guilty or not?

DEFENDANT: I do plead guilty.

COURT: And that’s in accordance with your instructions?

MR FRANCIS:  That is, your Worship.”

19. When the charge was first read to the appellant, he stated in clear terms that he was entirely innocent and that it was an accident.  He explained that he was experiencing a mood at the time and that it was a bump.  He even went as far as to question the court as to whether it was necessary to have a trial in such a case. 

20. I am satisfied that the plea was not tendered voluntarily in that he did not exercise free choice nor was it a result of a deliberate and informed decision because of his mental condition at the time and that he was prone to manic episodes and a relapse of his condition.  Whilst the psychiatrists said he was fit to plead at the time the reports were made, they also highlighted that his mental condition was fluctuating and that he was on medication.  I have also taken into account the appellant’s comments to the court when the plea was taken which would indicate that he was confused and unsure about the plea.  It appears he confirmed his plea of guilty to counsel representing him but given the circumstances of this case and the mental condition of the appellant at the time, I am satisfied that the plea should be treated as a nullity. 

21. I am also of the view that the facts admitted for the basis of the conviction were not supported by the evidence that was before the court. 

22. I have viewed the CCTV footage.  It shows the appellant in the lift with another occupant being a woman with a trolley. She exits from the lift and another woman, the alleged victim, is about to walk in to enter the lift, when the appellant holds up his left hand with his open palm facing her as a gesture for her to stop and not enter.  She walks back and he gestures with his left hand which is reached out not to come in and to go. It was then by the slightest of touches that he makes contact with the woman.  He appears to press the close button and thereupon the lift door closes.  This woman gave evidence before the guilty plea was taken from the appellant.  She said she was about to go inside the lift when the appellant used his hand to push her outside and the push landed somewhere above her right breast.  She said that he said to her at the time “I am riding by myself”.  As far as I am concerned it was not a push and there was no aggressive action by the appellant with his left hand.  It was simply a gesture not to come in with his left hand reached out.  It was also clear that it was the slightest of contacts which occurred in less than a split-second.  Whilst I can understand the woman being offended by not being let in the lift, there was no physical action by the appellant who probably because of his mental state wanted to be left alone in the lift.  I should add that from the CCTV footage he was not behaving in a physical or aggressive manner and was doing no more than putting his hand out as a gesture to the woman not to come into the lift.  In my view, given the circumstances of the incident and the minimal contact if any involved, this did not support a criminal conviction.

Conclusion

23. In light of the foregoing reasons, I quash the conviction and set aside the sentence and the order to activate the suspended sentence.