HKSAR v. LI SUI YUNG

HCMA 729/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 729 OF 2008

(ON APPEAL FROM ESCC 5724/2007)

----------------------

----------------------

----------------------

J U D G M E N T

----------------------

1.  On the 2 May 2008, the appellant was convicted, after trial before a magistrate, of six offences of criminal intimidation, contrary to section 24(b)(i) of the Crimes Ordinance, Cap. 200.  After prolonged investigations and the receipt of reports and testimony from two psychiatrists, as well as the appellant himself, on the issue of his mental state, the magistrate made a hospital order under section 45 of the Mental Health Ordinance, Cap. 136, ordering that the appellant be detained for six months.  He appeals against the conviction and against the hospital order though his main complaint before me today is that he does not have a mental illness and should not have been made the subject of the order.  He has said little about the convictions, despite prompting from me, though he has not formally abandoned his appeal against conviction and it must be considered and determined.

Conviction

2.  Although the trial took place over two days and 11 prosecution witnesses were called, in the end, the issues to be decided were very narrow.

3.  The prosecution case was that the appellant, a married man with no previous convictions, had become estranged from his wife.  She left the matrimonial home were taking with her their 10-year-old daughter and the appellant did not know thereafter know their whereabouts.  He tried to trace them by telephoning a number of primary schools at which his daughter might have been enrolled.  It was alleged that during angry conversations with the staff at the schools, on the six occasions referred to in the charges, he made threats of violence towards those staff and/or to the pupils at the school in question, including threats to “chop” the pupils, or the member of staff dealing with him, or to come to the school to massacre the pupils.  These threats, the prosecution alleged, caused alarm to the staff members involved and were intended to cause alarm, hence it was alleged that the offences were committed.

4.  The prosecution called six staff members, being either the school principals or their support staff, to testify as to the threats and to give evidence which tended to demonstrate that it was the defendant who made the calls.  Other evidence was given by a staff member of a telecommunications firm about the phone records, by the appellant’s wife as to the appellant’s use of the phone in question, and by three police officers as to the appellant’s answers after arrest and in interview.  In the end, however, it was not disputed that the defendant had made the calls in question.  The issue was whether he made the alleged threats.

5.  The evidence that the appellant had made the calls to the schools was clear and unequivocal.  I need not rehearse it here given that it is not in issue and, apparently, never really was, on the appellant’s own case.  It was supported by the answers given by him upon arrest, and in a video recorded interview, in which he admitted making the calls but denied making threats.

6.  There was a voir dire as to the admissibility of his answers to the police, in which the appellant testified that he had been induced into giving the answers.  The magistrate disbelieve him, and gave cogent reasons for so doing.  The answers given, mixed in nature, in fact broadly reflected the appellant’s own case.  In the circumstances, I need say no more about this.  The appellant’s evidence on the general issue was along the same lines as his challenged interview.  In particular, he denied making threats to kill, to chop the schoolchildren or to massacre.

7.  The magistrate, applying the proper burden and standard of proof and, in her oral reasons given upon conviction, reminding herself of the appropriate directions for a man of clear record, disbelieved him.

8.  The appellant who was represented at trial by counsel instructed by the Duty Lawyer Service, but who appears in person here today, has submitted only general grounds of appeal against the convictions.  He has not added much to them in his submissions today save to emphasise his case that, despite the evidence to the contrary, he did not speak to the principals of the schools, only to the staff and that he did not make threats and would not have left his name and phone number if he had.

9.  The respondent submits that the magistrate gave strong reasons for rejecting the appellant’s account at trial and that she expressed, as she was entitled to, her satisfaction beyond all reasonable doubt that the prosecution witnesses were honest and credible.  Of course, the magistrate had the advantage of seeing and hearing as witnesses in reaching that conclusion.

10.  No ground has been advanced before me to undermine that conclusion.  The description of the threats given by the magistrate in her statement of findings demonstrates that there was a consistent pattern of behaviour by the appellant towards the staff at the schools in question: an angry demand to speak to the principal of the school, coupled with a demand for information about his daughter, and threats that if the assurance that the child was not enrolled at the school was false then the threatened violence would follow.  There was evidence to the effect that the threats were made in fierce tones.  All the witnesses express themselves as being frightened or alarmed at what was said and, given the nature of the threats to do serious violence to staff or schoolchildren, such alarm is hardly surprising.  The threats were taken seriously.

11.  There is nothing in what the defendant has submitted which can begin to disturb the findings of fact made by the magistrate that the threats were made.  Those findings were founded on clear and unequivocal evidence from reliable witnesses whose credibility was not undermined.  This necessarily led to the rejection of the defendants claim that he had made the calls but not the threats.  The magistrate found the defendant to be evasive in certain respects, trying to step back from an admission in interview that he had used foul language.  It was clear from what he said to the police in interview, and to the court in evidence, that he became very anxious about his daughter’s whereabouts.  According to his interview he became agitated, he spoke loudly, he thought his daughter might be harmed, and he felt he was being obstructed by the staff at the schools.

12.  The evidence left the magistrate (and it leaves me) is in no doubt that the threats were made as alleged.  Those threats amounted to threats to injure the person who received the calls or third parties, that is, the schoolchildren.  The magistrate expressly considered the question of whether those words were said in the heat of the moment and whether they were intended to alarm.  She concluded from all the circumstances, including the tone and context of the threats, that they were in each case intended to alarm the staff who received them, as in fact they did.  They were designed to force the recipients to reveal any information they had as to the whereabouts of the appellant’s daughter.  In all the circumstances, the magistrate was entitled to come to her conclusion.  Indeed, I cannot see how any other conclusion could have been reached on the evidence before the court.

13.  There is nothing in this case to undermine these convictions.  I note that the appellant, though suffering from a mental disorder, was nevertheless found to be fit to plead.  I am satisfied that he understood the nature of the charges and that at the material time he was capable of forming the necessary intent.

14.  These convictions were properly founded on the evidence.  The appeal against conviction must be dismissed.

Sentence

15.  The magistrate obtained reports from the probation service, a clinical psychologist and two psychiatrists.  These reports disclosed, by way of background, a history of marital disharmony culminating in the wife leaving the matrimonial home with the youngest child, the one in respect of whom the appellant was making the threatening calls.  Two other children, aged 14 and 15, were left with the appellant.  He had, over the months leading up to the separation, developed a belief that his wife was engaged in a lesbian relationship, an allegation which she denied when called by the appellant to give evidence during one of the sentencing hearings.  The appellant also gave evidence at that hearing, expressing his belief as to his wife’s behaviour with a female friend.  Other reports before the sentencing court made clear that the appellant is a man with a strong personality and rigid views who dominated the marital relationship.  There were a number of incidents of the wife seeking shelter from the Family and Child Protection Services Unit of the Social Welfare Department.  The appellant believed his wife was behaving improperly, despite her denials and the absence of any real evidence.  His belief was founded on suspicions.  He was unwilling to contemplate divorce from his wife.

16.  Two psychiatrists, who examined the appellant over a period of three weeks at Siu Lam Psychiatric Centre, submitted reports to the court which described him as suffering from a mental disorder of a delusional nature which, in the view of one of the psychiatrists, could also be characterised as morbid jealousy.  Both regarded him as dangerous in his present condition though, in their initial reports, they expressed a measure of uncertainty as to the depth of the appellant’s delusions, given their lack of evidence as to whether there was any substance to his beliefs.

17.  At the request of the appellant, under section 46(3)(c) of the Mental Health Ordinance, the two psychiatrists were called to give oral evidence before the magistrate.  They testified that he suffered from a delusional disorder, that he was a mentally disordered person within the terms of the Ordinance, that his disorder was susceptible to treatment and that a hospital order should be made.  The magistrate, having heard the evidence of the psychiatrists and the appellant, concluded that he was mentally disordered person and that the nature and degree of his mental disorder warranted his detention and treatment.  The most suitable method of dealing with him what was by way of a hospital order under section 45 of the Ordinance.  The offences for which he had been convicted carry a maximum sentence of two years’ imprisonment and therefore, the recommended detention period was well within a maximum.

18.  The appellant submits today that he has no mental illness.  He has put before the court a letter from his wife in which she maintains her denial of the conduct of which he has accused her, and in which she gives her view that he is not mentally disordered.  Her opinion cannot be given any weight in all the circumstances.  The appellant has explained at some length his reasons for saying that he does not have a mental disorder which would justify the making of a hospital order.  Essentially, he complains that he has received little or no treatment whilst in Siu Lam Psychiatric Centre and that therefore he cannot have a psychiatric problem:  if he had, he would have been treated.  He complains about the lack of contact with doctors and the absence of counselling.  He also submits that as he was in custody pending trial for just over four months pending his trial, he will have spent more time in custody than is appropriate for his offences.

19.  I have regard to what he says as to whether he has a mental disorder but having reviewed the material and evidence before the magistrate and her findings on that material, I am in no doubt that her decision that he was a mentally disordered person was correct.  The appellant’s own judgment about the quality of the treatment he is receiving cannot be accorded any weight on this issue – this is a matter for the doctors to determine and it is not for this court to second-guess their professional decisions.

20.  I am also left in no doubt that it was and remains in the interests of the appellant to receive the treatment recommended by the doctors, so that he will thereafter be in a fit state to resume (as is the present intention) the care of the two elder children of the family as soon as he is released.

21.  I appreciate the appellant’s concern that by the time he is released from this order, he will have spent almost exactly 12 months in custody which, for a man of clear record, would normally be regarded as too great for these offences.  However, two factors need to be taken into account: firstly, in the light of the nature of the allegations and the concerns over the appellant’s mental state, it was appropriate that he should remain in custody pending his trial; secondly, for a man of clear record, in custody awaiting trial on a matter of this nature, an expedited hearing might normally have been asked for; but here, instead of a concentration on the real, narrow issue, there was an expansion of the case to an extent that it required two days for trial.  It is impracticable to obtain an expedited hearing in such circumstances, even assuming an application was made in this case.  Thus it took from December to April to list the case for trial and that accounts for a good deal of the time the appellant has been in custody.  After that, there was a dispute over the diagnosis of the two psychiatrists and a hearing had to be arranged for them to give their evidence.  That caused a further delay in the disposal of the case.  The period of six months for the hospital order which the magistrate made, was fixed mainly by reference to the time required for effective treatment, not simply by reference to the gravity of the offences.  This explains the longer than normal period for which the appellant has lost his liberty but it cannot lead to a reduction in the length of the hospital order which I am satisfied properly reflects the recommendation of the doctors.  The appellant’s metal disorder warranted his detention for treatment for six months.

22.  Accordingly, his appeal against the hospital order is dismissed and the order is confirmed.