HKSAR v. SU WEI

HCMP2589/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2589 OF 2011

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J U D G M E N T

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1.  I am dealing with an application for bail by a man who pleaded guilty to an offence of theft and was awaiting sentence. The magistrate remanded him in custody for a fortnight and called for four reports: psychiatric, psychological, community service, and a background report. Although I have not been able to see the warrant in the case, because I am told for some reason it is not available to be sent from the magistracy - it seems to have been misplaced - it is common ground between both sides that the remand was in fact under section 51 of the Mental Health Ordinance, Cap. 136.

2.  The circumstances giving rise to the plea of guilty to theft were unusual.  The plea was entered by a respectable, middle-aged man with a good job, who had lived a respectable life, who, on returning from a business trip, found himself in the baggage reclaim hall at the airport, and bizarrely, he chose to steal someone’s suitcase.  It clearly was not an economically-motivated crime.  He took one at random, and it contained nothing of value.  There was no planning to it in the sense of trying to identify a suitcase which would have contained valuable items.  It contained the usual sort of thing people carry with them.

3.  At the time he was arrested he said he had done it for greed, but when interviewed later, he said that he had done it because he had an impulse to do something that was very exciting or challenging, or that he was very thrilled were the words I am told that he used to describe his motivation.

4.  I granted bail yesterday, and what I did was replace the order the magistrate had made with a new order pursuant to my powers under section 9J of the Criminal Procedure Ordinance, Cap. 221. I made it a three-week remand and not a two-week remand, and I said the remand would be on unconditional bail, and the reports I requested were a psychologist’s report, which is going to be organised by the Social Welfare Department, who would also be responsible for the community service report and the background report.

5.  I thought carefully about what my powers were in regard to dealing with the reports.  Section 9J of the Criminal Procedure Ordinance allows me to confirm, revoke or vary the decision of the District judge or magistrate, and it says I may make such other order in the matter, including orders as to costs, as I think to be just, and it is that wide power that I have used here, because I think the order I have made now is the just one.

6.  It does mean that the request by the magistrate for a psychiatric report has fallen away, because my order replaces his order, and it is my intention that it should fall away.  I would not have had the power, certainly not in these bail proceedings or in a bail review, to say I quash the order for a psychiatric report simpliciter; but if my order about bail necessarily means it has to fail, it has to fail.  So I hope I have explained why I have substituted my new order for the magistrate’s, and I believe I have power under section 9 to do that.

7.  The reason I am taking the course of adjourning these proceedings into chambers open to the public, giving reasons is this:  that there has been some publicity recently about the use of section 51 of the Mental Health Ordinance, and it is a section that does merit some close reading, and what becomes apparent on reading it is that the power to make a remand under that section only arises where it may be or is alleged that the Defendant is a mentally-incapacitated person and the purpose of the remand is for observation, investigation and treatment.

8.  I would point out here that section 51(2) allows for the remand for such a purpose to be on bail.

9.  Was there any evidence here that the Defendant was mentally incapacitated?  And for that, one has to go to the intreputation section of the Mental Health Ordinance.

“’Mentally handicapped’ means, for the purposes of this part of the ordinance, a patient or a mentally-handicapped person. ‘Mental handicap’ means sub-average general intellectual functioning with deficiencies in adaptive behaviour.”

There is no question of this man being mentally handicapped. Is he a patient? “Patient” is defined in this way. It means: “A person suffering or appearing to be suffering from mental disorder,

‘mental disorder’ (精神紊亂) means -

(a) mental illness;

(b) a state of arrested or incomplete development of mind which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned;

(c) psychopathic disorder; or

(d) any other disorder or disability of mind which does not amount to mental handicap,

That last part of the definition is obviously very wide, but it clearly has to be construed in the context of the general definition of “mental disorder” and in the context of the Mental Health Ordinance. If you look at the introduction to the Mental Health Ordinance, it is:

“To amend and consolidate the law relating to mental incapacity.”

It is about people who have mental illness. It is not about using a remand to investigate social behaviour or criminal motivation, unless that need goes so far as to appear to be engaging mental incapacity.

10.  For my part, I would not exercise the power under section 51.  I can quite understand why the magistrate was interested in learning more about the criminal motivation of this Applicant, but the way to do that is the way I hope I have now set out: is to do it through a psychologist’s report, because - I say this with trepidation - there is a difference between psychiatry and psychology.  I am not going to begin to try to attempt to define it, but it seems to me clear that the behaviour of the Applicant in this case engages matter in the province of the psychologist and not the psychiatrist.

11.  If it is the case that section 51 does not apply, the general conditions that cover the granting of bail in criminal cases are engaged, and Ms Chan, who appeared here at very short notice on behalf of the Respondent, has taken the opportunity to educate me, because I was saying to her section 9D(1)(b) of the Criminal Procedure Ordinance Cap. 221 applied in this case, and that if there was not going to be a remand under section 51 of the Mental Health Ordinance, the applicant had a right to bail subject to the usual grounds of objection.

12.  She took me to section 83Z of the Criminal Procedure Ordinance, Cap. 221:

“A person need not be admitted to bail in connection to an offence if he has been convicted of that offence, but where any court has jurisdiction to remand that person in custody or to admit him to bail pending sentence or appeal, the court may make such order as appears to it to be necessary for the detention or the admission to bail of that person, and in making any such order shall have regard to:

(a) pending sentence, the likelihood of a custodial sentence;

(b) pending appeal against conviction or sentence, the likelihood of the sentence being completed before the disposal of the appeal or the appeal being allowed; and

(c) any other matter that appears to the court to be relevant.

By using the phrase “any court that has jurisdiction to remand”, it seems to me section 83Z, although it falls in that part of the ordinance that deals with appeals to the Court of Appeal, has a general application and would apply to the situation in the magistracy between plea a gulity and sentence.

13.  Therefore it is relevant to look to see if there is a likelihood of a custodial sentence. There obviously is a prospect of a custodial sentence on the facts of this case.  Equally, in my view, there is a prospect of a non‑custodial sentence.  I do not wish and I do not want to express any opinion on the question of sentence other than to say that is not out of the question that there may be a non‑custodial sentence in the curious circumstances of this case.

14.  What I do say, and the reason why I have given the Applicant bail, is that there is no need to lock him up at this stage, especially in an institution for the mentally ill.  If he has to go to prison, he can go to prison after he is sentenced, when the sentencer is in possession of all the relevant material that the reports that have been called for would give him.

15.  It is the fact that this Applicant had a good job which he has held for a long time and that this remand is going to put that job in jeopardy.  That is a factor I have taken into account in granting him bail. 

16.  I am sorry these ex tempore reasons are rather long, but the point I do want to make is this:  that section 51 is about people who have mental incapacity.  It is not to be used as a vehicle to obtain a report to investigate criminal motivation unless that topic of criminal motivation engages mental incapacity, and in my view, it clearly does not here.  A remand in custody for a man of good character is always going to be traumatic.  I suspect it will be the more so if that remand is to a mental institution.

17.  One other matter I want to deal with is this:  that section 9Q of the Criminal Procedure Ordinance requires that a record be kept and the rules made pursuant to that section require that an extract of the record be supplied to the accused person.

18.  When these papers came up from the magistracy there was no extract of the record of the bail proceedings, so I asked for one, and what has been faxed through is a document in the usual form which has various boxes to tick which identifies the ground objection and the reasons for it.  The only box ticked in this case was the box that indicated that bail had been refused and there was a remand in gaol custody.

19.  In fact, that was not quite accurate, because this was a remand, as I understand it, to Siu Lam.  But leaving that aside, what the form should have done is given a reason.  If the reason had been given, it would really have had to have said, “There is an appearance of mental incapacity here”, and if the magistrate’s mind had been concentrated on that, perhaps he would not have in fact remanded as he did.

20.  Be that as it may, what I would like to say is that it is important, for a variety of reasons, that that form be filled in properly, and it was not done in this case.

21.  The final question is one of costs.  Section 9J allows me to make an order as to costs, and I am minded to give the Applicant his costs of this application.  In doing that, it is not in any way punitive of either the prosecution or the magistrate.  Quite simply, he came here and he won, and the individual should not, in those circumstances, bear the costs.  I think that cost is rightly to be borne by the general revenue.

22.  So the order I shall make in his case is that there be costs to the Applicant to be taxed if not agreed.