HKSAR v. LEE SIU TAI

HCMA267/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.267 OF 2006

(On Appeal From KCCC 471 OF 2006)

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REASONS  FOR  JUDGMENT

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1. The appellant pleaded not guilty to one charge of ‘common assault’, contrary to common law and punishable under section 39 of the Offences against the Person Ordinance (Cap.212) [Charge 1] and one charge of ‘resisting a police officer’, contrary to section 36(b) of the same [Charge 2].  In the end, he was, pursuant to section 45 of the Mental Health Ordinance (Cap.136), committed to the Siu Lam Psychiatric Centre for a period of 3 months.  The appellant appeals against that order.

2. Quoting the magistrate from his Statement of Findings, the following is what took place in the court below :

“When the case was brought up on 17^th January 2006, in view of the strange behaviour of the defendant, I had serious doubt about his ability to stand trial. I had therefore ordered reports from 2 psychiatrists in order to assist me. Both psychiatrists in their reports considered him fit to plea. However, in view of his untreated chronic mental illness (namely schizophrenia), apparent lack of social support and poor insight into his mental problem, both psychiatrists considered hospital treatment necessary and recommended that he be committed to Siu Lam Psychiatrist Centre for a period of 3 months ….

The defendant had indicated his unwillingness to under go the recommended treatment. Prosecution then proceeded to prove its case against him by calling the victim of the case, namely PC32487 Leung Kwok Wai: while he was walking with his wife ….. in Mongkok, he was accosted by the defendant accusing him of coughing. He ignored the defendant and continued walking but the defendant followed him and continued to abuse him with foul language. At one point the witness turned to the defendant and asked what he wanted, to which the latter replied that he wanted to call the police and did so by a cell phone.  He then directed his verbal abuse to the witness’ wife when the latter remarked that the defendant appeared to be mentally unstable ….. Shortly afterwards, the defendant hit the witness once on the left side of his face. The witness then disclosed his identity as a police officer and declared arrest, whereon the defendant put up a struggle and was eventually subdued. During the process, the witness suffered injury on his left arm.

The witness’ account was not challenged under cross-examination save it was suggested to him that the defendant had accidentally touched the witness’ face with a cell phone. The witness denied such suggestion ….. I found the witness a creditable witness and he gave a clear and consistent account of what had happened.

The defendant elected to give evidence: the witness had coughed at him, and as he was very tired he tried to stop the witness from coughing and had made a report to the police by his cell phone. The cell phone had touched the witness’ face while he was using it to point at the witness. He did not believe the witness when the latter declared that he was a policeman.

The defendant’s account not only was unbelievable, the senselessness of it and the way he explained it in court instead had lent support to my belief that he was mentally unstable. I did not believe his contention that the assault was accidental.

Having considered the evidence I was satisfied beyond all reasonable doubt that the defendant had behave in the way described by the witness and his behaviour was punishable by imprisonment. Having considered the opinions and recommendations of the 2 psychiatrists, I was equally satisfied that the defendant was a mentally disordered and that the circumstances of this case and the defendant were such that it was in the benefit of both himself and the society that he be committed to a mental hospital for treatment for 3 months under section 45 of the Mental Health Ordinance.”

3. I can see nothing wrong either procedurally or in relation to the substantive issues that faced the magistrate.

4. I should add that the appellant was represented by a duty lawyer throughout.

5. Before me, all the appellant says is that he prefers to go to prison, but obviously this is not a valid ground on which to overturn the magistrate’s decision.

6. The appeal is dismissed.