HKSAR v. WONG CHUN KIT

HCMA 637/2017

[2018] HKCFI 624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 637 OF 2017

(ON APPEAL FROM STCC 688 OF 2013)

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REASONS FOR JUDGMENT

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1.  This is an appeal against a magistrate’s[1] findings that :

(i) the appellant is under a disability,

(ii) he did the acts or omissions charged against him in the offences; and

(iii) an order that he be committed to Siu Lam Psychiatric Centre (Siu Lam) for 3 months.  

2.  The appeal is filed by written notice under Forms 101 and 102 as appeals against conviction and sentence. 

3.  The appellant was charged with two counts of “Breach of condition of stay” (“Charge 1 and Charge 3”) and one count of “Failure to surrender to custody” (“Charge 2”).

4.  Two psychiatric reports dated 29 August 2017 stated that the defendant was unfit to plead.  Both psychiatrists recommended the appellant be committed to Siu Lam under section 45 of the Mental Health Ordinance (MHO), Cap 136 for 3 months.  The appellant was found unfit to plead[2]. The magistrate found that the appellant was under a disability and unfit to be tried pursuant to section 75 of the Criminal Procedure Ordinance (CPO) Cap 221.

5.  The magistrate conducted a trial to determine whether the appellant did the acts or omissions charged against him in accordance to section 75A of CPO[3] and was satisfied that the appellant did the acts or omissions charged against him in the three offences.  

6.  After making his findings the magistrate then called for two further psychiatric reports[4]. The two psychiatrists in their reports[5] recommended the appellant to be committed to Siu Lam under section 45 of the MHO for 3 months.  In following the recommendations, the magistrate consequently ordered the appellant be admitted to Siu Lam for 3 months on each charge to run concurrently to each other. 

7.  In making the order to admit the appellant to Siu Lam for 3 months, the magistrate however did not indicate whether the order was made pursuant to section 76 of CPO or section 45 of MHO.

Grounds of appeal

8.  The appellant was not legally represented.  He did not particularise his grounds of appeal against conviction or sentence.  During the hearing of the appeal the appellant only submitted that he would like a shorter time.  When being asked if he had anything further to say the appellant replied “no contest.”

9.  Mr Joseph Lee was instructed by the Director of Legal Aid to appear on the applicant’s behalf in the event that I might need some assistance.

The magistrate’s findings

10.  Nine prosecution witnesses were called in support of the charges.  They were found to be honest and truthful witnesses.  The appellant did not ask them any questions in cross-examination and did not make any closing submissions.  He answered “no contest” repeatedly when the magistrate enquired with the appellant.  The magistrate found beyond a reasonable doubt that the appellant did the acts charged or omissions against him in all three charges. 

11.  The magistrate was satisfied in relation to Charges 1 and 3 that the appellant had overstayed for a total of 4 years 6 months and 10 days[6]: He found :

(1)   the appellant arrived in Hong Kong with a U.S. passport on 19 September 2012, and was allowed to remain in Hong Kong until 18 December 2012; and

(2)   according to the movement record, the appellant has not left Hong Kong since 19 September 2012.

12.  Upon review of prosecution exhibits, namely transcripts of the hearings on 1 and 7 March 2013, the magistrate made the following findings in relation to Charge 2 :-

(1)   At the hearing on 1 March 2013, the principal magistrate Mr Andrew Ma announced to the appellant that the hearing was adjourned and the appellant’s next appearance in court was to be on 7 March 2013; and

(2)   The appellant was absent on 7 March 2013 and a warrant of arrest was issued.

Respondent’s submission

13.  Mr Franco Kuan Senior Public Prosecutor for the respondent expressed concern at the ambiguity in the magistrate’s order in not specifying whether the order was made pursuant to section 76 of CPO or section 45 or MHO. 

14.  Mr Kuan contended that the magistrate (or a court) has no power to specify a time limit (i.e. 3 months) for a period of detention pursuant to a section 76 order.  If the magistrate had made the section 76 order then the magistrate erred in specifying a time limit. 

15.  Mr Kuan submitted that a specified time limit order for a period of detention can only be made pursuant to section 45 of MHO instead.  

16.  Mr Kuan and Mr Lee were both of the view that since the magistrate had made a section 75A[7] finding under the CPO, it follows objectively speaking that it is more likely that he had made an order under section 76.  If the magistrate’s order was under section 76, the order was correct but the period of detention should not have been specified in the order and thus the magistrate erred in specifying the 3 months’ period as he had no power to do so and the period should be removed. 

17.  As a consequence of the ambiguity of the Order made by the magistrate, I was invited to either :

(1)   quash the specified period of 3 months if the order was made pursuant to section 76; or

(2)   impose a hospital order under section 45 and to specify the period of 3 months which will lead to a final disposal of the matter. 

The appeal against the magistrate’s findings and order

18.  Save for the issue of the uncertainty of what section the order of 3 months’ admittance to Siu Lam was made by the magistrate, this appeal would have been efficiently concluded.  There was no fault with the magistrate’s findings as to the appellant’s disability, his commission of the acts or omissions charged and the order that the appellant be admitted to Siu Lam for 3 months. They were correct.  There are no merits in the appellant’s grounds of appeal. 

19.  As the magistrate did not specify whether the order was made was under section 76 or section 45 the purpose of this appeal is to express under what section the order was made. 

Issues

20.  The primary issue in this appeal is to clarify whether an order was made or should be made pursuant to section 76 of the CPO or section 45 of the MHO.

21.  In dealing with that issue the following points arise:

(i)   whether the magistrate did in fact make an order pursuant to section 76 of the CPO or a section 45 of MHO;

(3)   if the magistrate did in fact make an Order pursuant to section 76 of the CPO order, whether the 3 months’ time limit can be imposed;

(4)   if no time limit can be imposed under section 76 and the order was made pursuant to section 76 should it be left to stand without the specified period or should the section 76 order be replaced with a section 45 Order with a time limit of 3 months; and

(5)   if the section 76 order is replaced with a section 45 order is the time limit of 3 months excessive.

22.  I turn now to deal with the above questions.

Whether the magistrate did in fact make an order pursuant to section 76 or a section 45?

23.  I accept the reasoning by Mr Kuan and Mr Lee that given the section 75A CPO findings by the magistrate that the appellant did the act or omission charged, it is more likely that the said order was made under section 76 of CPO. 

24.  Equally however, it is arguable that the magistrate made an order under section 45 of MHO as the two psychiatrists reports made their recommendations that the appellant be committed to Siu Lam under section 45 of MHO for a period of 3 months. 

25.  For the purposes of this appeal as the magistrate made a section 75A finding I shall deal with the more likely inference that his order was made pursuant to section 76. 

If the magistrate did in fact make an Order pursuant to section 76, whether the 3 months’ time limit can be imposed?

26.  In order to decide whether a court has power to order a specified period of detention pursuant to section 76 it is necessary to examine the scheme provided by sections 76 and the relevant provisions of CPO, section 45 and the relevant provisions of MHO and the Second Reading of the Criminal Procedure (Amendment) Bill 1996 on 31 January 1996 as well as decided cases. 

The old section 76 prior to 1996

27.  Counsel for the defendant in R v Leung Tak-Choi [1995] 2 HKCLR 32 criticised the legal framework of section 76 prior to the amendments made in 1996.  Before the amendments, if the court was satisfied that a person is under a disability and was thus unfit to plead, the only order that the court could make was to admit that person to a mental hospital or to a psychiatric centre.  Furthermore, different from section 45 of MHO, the court was not empowered to receive evidence of psychiatrists.

28.  What made matters worse was that the court could only find whether a person was under a disability; the court could not determine whether an accused person did the act or made the omissions charged. As such, an innocent person with a disability was liable to be detained.

29.  Another loophole was that magistrates were not empowered to deal with the issue of fitness to plead and to make a section 76 Order.

30.  The above concerns were highlighted at the Second Reading of the Criminal Procedure (Amendment) Bill 1996 on 31 January 1996, the Secretary for Security stated that:

“At present, under the Criminal Procedure Ordinance, the only option to deal with an accused person found unfit to plead in court or not guilty by reason of insanity is to send that person to the Siu Lam Psychiatric Centre or a mental hospital for indefinite detention. Since an accused person found unfit to plead is incapable of being tried and there is no requirement for the court to determine whether such a person did the act or made the omission charged, it is possible that an innocent person can be detained in a mental hospital indefinitely because he suffers from a mental disability and is unfit to plead.

Such indefinite detention can happen no matter how minor the alleged offence is or how harmless the accused person may be. The period of detention may greatly exceed the maximum sentence for the alleged offence. Clearly, the present provisions in the law are far from satisfactory, because they do not allow sufficient flexibility of options for the court to properly deal with accused persons who are mentally disordered and are unfit to plead.

The same problems arise with cases handled by the magistracy. Although a magistrate has no jurisdiction to make a finding of unfitness to plead or not guilty by reason of insanity, hehas discretion under the Mental Health Ordinance and in respect of an offence punishable on summary conviction by imprisonment, to make an order to detain an accused person in the Siu Lam Psychiatric Centre or a mental hospital. The magistrate can make such an order if he is satisfied that the person did the act or made the omission charged, and is suffering from mental disorder which warrants the detention.” (at p.60-61)

31.  The above defects in the legislation were later rectified by subsequent amendments.  It is observed that the relevant provisions in the CPO in effect at the time of the aforesaid case underwent major amendments in 1996 (with minor amendments in 1998[8], 1999[9] and 2000[10]). In particular, the amendments in 1996 are summarized as follows:-

(1)   “Under disability” in section 75 was specified to be “disability such that apart from this Ordinance it would constitute a bar to his being tried”;

(2)   Section 75A, namely “Determination as to whether accused person under disability did the act or made the omission charged”, was added;

(3)   The definition of “court” for the purposes of sections 75 and 75A was added; in particular, a magistrate is empowered to make findings pursuant to sections 75 and 75A;

(4)   Requirement of medical evidence on the accused person’s disability was added in sections 75(5) and 76(2);

(5)   Amendments relevant to the new section 75A were made to section 76;

(6)   Section 76(2)(b) was added to empower the court to make a range of orders, including guardianship order[11], supervision and treatment order[12] and order for absolute discharge[13]; and

(7)   The procedures applicable to the situation where the accused person can be properly tried were refined, and the relevant provisions were moved from section 76 to Schedule 4.

32.  Subsequent to amendments made in 1996, magistrates were therefore given the jurisdiction to make findings pursuant to sections 75 and 75A of CPO.  As a result, a magistrate can now impose either a section 76 order or a section 45 order where the offence charged is punishable on summary conviction by imprisonment.

33.  Other than the aforementioned amendments, the substance of a section 76 order prior to 1996 amendments is the same as the that of the section 76 order in the present case.  Leung Tak-choi remains to be good law in relation to the nature and effect of a section 76 order.

Difference between section 76 of CPO and section 45 of MHO

34.  In Leung Tak-choi the court stated the connection between section 76 and section 45 stems from Schedule 4 of CPO.  By virtue of paragraph 1(3) of the Schedule, authority is conferred on the Commissioner of Correctional Services or medical superintendent to detain the person subject to a section 76 Order in accordance with section 45, but it is not a hospital order.

35.  “Hospital Order” is defined in section 2 of CPO to mean an order made under section 45, 54 or 54A of the MHO.  It does not include a section 76 order.  A section 45 order is a hospital order against a person who is mentally disordered.  A section 76 order is therefore not a hospital order[14]. A person detained under a section 76 order shall be treated for the purposes of the Mental Health Ordinance as if he was detained in pursuance to a hospital order under section 45 of the MHO[15].

36.  Although a section 76 order is not a hospital order like the section 45 order they are both likewise governed by the MHO under paragraph 2 of Schedule 4 of CPO but with a slightly different application on the endorsement. 

37.  The Court in Leung Tak-choi furtherhighlighted the differences in the two orders.  It stated that a disability and disorder are not the same[16].  A section 76 order as opposed to a section 45 order is not a final disposal of the case[17]. 

“Section 76(1) of the CPO and s. 45 of the MHO are different in nature and purpose. A s.45 MHO order is a hospital order against a person who is mentally disordered.It marks the end of the criminal proceedings for a person who is regarded as having a mental disorder[18][…]

As I said, a s.76(1) CPO order is not a hospital order. A disability under the provisions of the CPO is most likely but not necessarily caused by a mental disorder as defined in the MHO. A s. 76 (1) CPO order is not the end of the proceedings for a defendant. Section 75(5) of the CPO puts an end to the trial for the time being upon a verdict by the special jury that the person charged with an offence is under a disability that he is not fit to be tried. The criminal proceedings against him is not completely over. If he is well again to stand trial, the Governor may direct that he be tried. As. 76 (1) CPO order is therefore different in nature and is made for a quite different purpose.” (Emphasis added)

38.  The possible order for trial once a defendant is well is made pursuant to paragraphs 3 and 4 of Schedule 4 of CPO. The Chief Executive may direct that a person be detained for the purpose of trial after consulting the medical superintendent (in case of a person admitted to a mental hospital) or the Commissioner of Correctional Services (in case of a person admitted to a psychiatric centre).[19]

39.  Further in Leung Tak-choi[20]the court considered that a section 45 order marks the end of the criminal proceedings.  It stated :

“Section 76(1) of the CPO and s. 45 of the MHO are different in nature and purpose. A s. 45 MHO order is a hospital order against a person who is mentally disordered. It marks the end of the criminal proceedings for a person who is regarded as having a mental disorder. Because of this, it requires pre-requisites, first, either a conviction by the court or a finding by the magistrate that the person did the act complained of; second, medical evidence that the person is a mentally disordered person; and third the court or magistrate is of the opinion that the most suitable method of dealing with him is by sending him to a psychiatric Center for specified mental hospital. It is a method of dealing with a person with a mental condition who is convicted or found to have been involved in criminal activities at the end of a criminal proceeding. (my emphasis).”

40.  Section 45 of MHO provides that as long as a person is charged in the magistrates’ courts with an offence punishable by imprisonment on summary conviction, a hospital order may be imposed if certain criteria are met:

“(1) Where –

(a) a person is—

(i) convicted by the Court of First Instance or a District Court of an offence other than an offence the sentence for which is fixed by law

(ii) convicted by a magistrate of an offence punishable on summary conviction by imprisonment; or

(iii) charged before a magistrate with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission; and

(b) the court or magistrate is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46 that—

(i) such person is a mentally disordered person; and

(ii) the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment; and (c) the court or magistrate is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of such person, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section,

the court or magistrate may by a hospital order authorize the admission of the person to and his detention in the Correctional Services Department Psychiatric Centre or a mental hospital specified in the order or, if the person is under 14 years of age, in a mental hospital specified in the order, and may specify in the order the period during which such person should be so detained which shall not be greater than the sentence which the court or magistrate could have imposed in respect of the offence with which such person was charged.” (Emphasis added)

41.  On the other hand section 76 is drafted in mandatory terms.  It provides that the court shall make the order specified in the ordinance (i.e. admitting a defendant to a mental hospital or a psychiatric centre, amongst others).  There is no power to specify a time limit:

“(2) Subject to subsection (3), the court shall—

(a) if it is satisfied, 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)), that it is necessary in the interests or the welfare of the accused person or for the protection of other persons that the accused person be admitted to the Correctional Services Department Psychiatric Centre or a mental hospital, make an order that the accused person be admitted—

(i) in accordance with the provisions of Schedule 4, to that Centre or

(ii) to such mental hospital as may be specified by the Chief Executive,

as the case may be […]” (Emphasis added)

42.  In HKSAR v Yu Sau (unreported) HCCC 58/2009, it has been held that there is no power for a court to impose a specified term for a section 76 Order.  Hon Saw J commented that the psychiatrists “unnecessarily” added in their conclusions that the section 76 Order should be for an unspecified period (at 4K). Hon Saw J further commented that:

“Miss Sin, on behalf of the prosecution, correctly and properly pointed out to Mr Arthur, on behalf of Madam Yu, that this court is not empowered by section 76(2)(a) to limit the period of a defendant’s admission when exercising those powers. Unlike section 45 of the Mental Health Ordinance, there is no power in the court making an order under 76(2)(a) to specify the period of detention.” (at p.4M-P)

43.  It is clear that the then Secretary for Security (above) described the detention in a psychiatric centre or a mental hospital as “an indefinite detention” which by implication was for an unspecified period of detention.  

44.  Although Hon P Chan J (as he then was) in Leung Tak-choi did not specifically consider the option to specify a time limit by the court.  He however disagreed that section 76 is an order for an indefinite duration[21]. He said there are suitable ways by which a person can seek a discharge by[22]:

(1)   appeal against the order;

(2)   be discharged with the Governor’s (Chief Executive) consent;

(3)   apply to the Mental Health Tribunal for a review or discharge;

(4)  apply for guardianship; or

(5)   apply for discharge from the medical superintendent.

Paragraph 2 Schedule 4 of the CPO

45.  Paragraph 2 of the Schedule 4 of CPO provides the following : -

“A person who is admitted to the Correctional Services Department Psychiatric Centre or a mental hospital in pursuance of an order under section 76(2)(a) shall be treated for the purposes of the Mental Health Ordinance (Cap. 136) as if he had been so admitted in pursuance of a hospital order made (on the date of the order under section 76(2)(a)) under section 45 of that Ordinance without an endorsement under subsection (1A) of that section.”

46.  Pursuant to paragraph 2 of Schedule 4 a person admitted to Siu Lam or a mental hospital under section 76(2)(a) is to be treated for the purposes of the MHO as if he was admitted pursuant to a section 45 order without an endorsement under section 45(1A) of MHO. 

47.  The absence of an endorsement under section 45(1A) means that the proviso under section 47(2) does not apply.  As a result, the power to grant permission for leave of absence, discharge or conditionally discharge is only exercisable with prior consent by the Chief Executive.

48.  A section 45(1A) endorsement only applies to defendants sent to a mental hospital but not to defendants sent to a psychiatric centre such as Siu Lam. It is therefore not applicable in this case. 

49.  In HKSAR v Syed Atta Muhammad (unreported) HCMA 955/1997, the defendant was ordered to be admitted to Siu Lam under section 45 of MHO.  The order did not specify whether the proviso under section 47(2) of MHO applied.  With respect, the court erred in varying the order to specify that the said proviso did not apply, because sections 45(1A) and 47(2) of MHO only applies to persons admitted to a mental hospital, not Siu Lam.

50.  It is clear from the wording of sections 45(1A)[23] and 47(2)[24] of MHO that the proviso is only applicable to persons admitted to a mental hospital and not to Siu Lam.  It is unnecessary for the court to specify whether the proviso is applied or not if a defendant is sent to Siu Lam.

51.  This reading is the only one consistent with the statutory scheme: a person sent to a mental hospital is under the charge of doctors. By virtue of section 47(2), he is not treated as having been lawfully confined in prison but as a patient under section 36 of the MHO for treatment. Power is given to the medical superintendent to decide whether a patient should be released if the court decides to disapply the proviso.

52.  By virtue of section 47(1A), a person sent to Siu Lam is deemed to be in prison and is put in charge of the CSD.  Siu Lam is far better secured than a mental hospital such as Castle Peak.  Under section 50 of MHO[25], he must be discharged if the period expires.  If no period is specified, section47(1A)(b) applies, i.e. the prior consent of the Chief Executive is required, which is appropriate for seriously mentally disturbed individuals.

53.  By operation of section 76 of CPO, a section 76 order is necessarily made without a time limit, thus section 47(1A)(b) of MHO applies.  Pursuant to section 47(1A)(b) of MHO, the appellant can only be discharged from detention under a section 76 order-which by definition has no period specified in the order, with prior consent by the Chief Executive.

“s.47 (1A)A person who is admitted to the Correctional Services Department Psychiatric Centre in pursuance of a hospital order shall be treated, for the purposes of the Prisons Ordinance (Cap. 234), as if he had been lawfully confined in a prison in accordance with section 7 of that Ordinance except that during the period for which he is ordered to be detained in the Correctional Services Department Psychiatric Centre, or if no period is specified in the order, while the order is in force—

(a) the power of the Commissioner of Correctional Services to grant leave of absence under the Prisons Ordinance (Cap. 234) shall not be exercised; and

(b)  the person shall not be discharged therefrom unless with the prior consent of the Chief Executive.”

54.  For the forgoing reasons, and the contrasting wordings of section 76 and section 45, I am satisfied that a section 76 order does not empower the magistrate to specify the period of detention.  In the circumstances the magistrate erred in specifying a time limit.

Sections 83D and 83L of CPO

55.  For the sake of completeness, I have given consideration to sections 83D and 83L of CPO. 

56.  Under section 83D of CPO, where on an appeal against conviction, a defendant shall also be admitted to the mental hospital or the psychiatric centre, if the Court of Appeal opines that the verdict would have been not guilty by reason of insanity or the verdict should not have been an acquittal, but there should have been a finding that the accused was under disability.  Also, under section 83L of CPO, on an appeal under section 83J,[26] a defendant shall also be admitted to the mental hospital or the psychiatric centre, if the Court of Appeal opines that the verdict should not have been an acquittal, but there should have been a finding that the accused was under disability. 

57.  According to paragraph 2 of Schedule 5 of the CPO, section 83D and 83L(1) orders shall be treated as a section 45 order without endorsement and a specified period of detention:

“A person who is admitted to the Correctional Services Department Psychiatric Centre or a mental hospital in pursuance of an order under section 83D or 83L(1) shall be treated for the purposes of the Mental Health Ordinance (Cap. 136) as if he had been so admitted in pursuance of a hospital order made (on the date of the order made under section 83D or 83L(1)) under section 45 of the Mental Health Ordinance (Cap. 136) without any period of detention being specified in the order and without an endorsement under subsection (1A) of that section.” (my emphasis)

58.  The wording is different for paragraph 2 of Schedule 4 (section 76 order) and paragraph 2 of Schedule 5 (section 83D or 83L(1) order) of CPO. Schedule 5 expressly excludes the time limit in the order.  As the time limit was expressly excluded I at first thought that the different drafting for paragraph 2 of Schedule 4 implied that a time limit can be specified under a section 76 order. 

59.  It is borne in mind that like a section 76(2)(a) an order under section 83D and 83L is not a hospital order.  A hospital order only means an order made under section 45, 54 or 54A of MHO. 

60.  On further analysis I believe the legislature’s stipulating in paragraph 2 of Schedule 5 the clear words of not imposing a time limit (“without any period of detention specified in the order”) is because those orders were to be treated analogous to a section 76(2)(a) order.  The options open to the Court of Appeal under 83D and 83L are substitutions of not guilty by reason of insanity or a finding that the accused was under a disability.  Similar to section 76(1)(a) and (b).

61.  The legislative intention for stripping the Court of Appeal’s power in paragraph 2 of Schedule 5 of imposing the time limit in appeal cases (section 83D or 83L(1)) is in my view clear.  Even after a trial (the end of criminal proceedings) the legislature has left the length of the defendant’s stay in the mental hospital or the psychiatric centre without a specified time requiring the Chief Executive’s consent to be discharged as is the objective of an order under section 76. 

(iii) Should the section 76 be left to stand without the specified period or should the section 76 order be replaced with a section 45 Order with a time limit of 3 months?

62.  A section 76 order[27] is not a final disposal of the case or a final determination of the case.  The downside of a section 76 order is that it is without a specified limit. 

63.  By removing the specified period (of 3 months’) it will not be a final determination of the case.  If an order was made under section 76, once the appellant has recovered he could be tried again.  While this course of action is in the interests of justice for serious offences, I am of the view that it is not appropriate in this case.

64.  It is in the interests of justice and finality given the nature of the offences in this case that there be a final determination of the criminal proceedings. 

65.  Consequently, to achieve that end I replace the present section 76 order of CPO with a section 45 order of MHO for the appellant to be detained for a period of 3 months in the Siu Lam Psychiatric Centre in accordance with the recommendations by the two psychiatrists.

Is the time limit of 3 months pursuant to a section 45 order excessive?

66.  In HKSAR v Gunarti (unreported) HCMA 407/2016, the defendant overstayed for 4 years and 5.5 months.  The Court of First Instance considered the starting point of 9 months’ imprisonment as appropriate (at paragraph 17).  

67.  The present case would have attracted a similar starting point if there was a conviction, therefore if the magistrate made a section 45 order that would be correct in law.  The period of time of 3 months’ is not excessive. 

Discharge from Siu Lam

68.  As the appellant was found suitable to be treated in Siu Lam and not in a mental hospital, a number of options that deals with persons admitted to a mental hospital are inapplicable (such as, discharge before full recovery under section 42 MHO, discharge by medical superintendent under section 42A MHO).

69.  The possible consequences for the appellant will be discharge upon expiration of the specified period in accordance with section 50 of MHO. 

70.  Otherwise he may be discharged upon continued treatment.   The appellant may be certified as a patient under section 36 of MHO for continued treatment and later discharged pursuant to the following sections under MHO: section 42 - discharge before recovery, section 42A – discharge, section 42B – conditional discharge and section 44 – his removal from Hong Kong.  

Conclusion

71.  I am satisfied that there is no power to specify a time limit under section 76 of CPO, therefore the magistrate was not empowered to specify the period of detention.  

72.  A section 45 order of MHO is made for the appellant to be detained for a period of 3 months in the Siu Lam Psychiatric Centre.

73.  In future, magistrates should clearly state whether the order is made pursuant to section 76 of the CPO or section 45 of the MHO, including the place of detention and period of time if applicable, under section 45.

Further Discussion on the Appropriate Procedures and Forms

74.  In this magistracy appeal, the appellant used Form 101 and 102 to appeal against conviction and sentence.  During the hearing, I questioned if this matter is really an appeal against conviction and sentence.  Mr Kuan submitted it was actually an appeal against an order, which I agreed.

75.  Under section 113 of the Magistrates Ordinance (Cap. 227), an appellant may appeal against conviction or order or determination of a magistrate in respect of or in connection with any offence.  No doubt section 113 is applicable to the appellant’s appeal against the section 76 order or the section 75 and 75A of the determination of his disability and finding of the acts done respectively. 

76.  If an appellant appeals pursuant to section 113, section 114 states that the appellant shall give his notice of appeal in writing to the magistrates’ clerk within 14 days after his conviction, or the order or determination by the magistrate.  The written notice specified in section 114 refers to Form 101 and 102 by stating “(See Forms 101, 102)”.  Forms 101 and 102 are however headed “notice of appeal to a judge against conviction and sentence” respectively.  Therefore, it appears even for an appeal against order or determination, Form 101 and 102 are the proper forms under the Magistrates Ordinance.

77.  I am aware that under section 80 of the CPO, of Part IV of the CPO, the term “sentence” includes any court order in dealing with an offender, including a hospital order.  Also, section 83M & 83N are specifically provided for an appeal against a section 75 finding of disability.  However, the section does not apply to a magistrate’s section 75 determination (section 83M(4)).  It is my view that is because section 113 of the Magistrates Ordinance had already provided for an appeal against a magistrate’s determination.

78.  Last but not least, I wish to express my gratitude to the assistance provided by both counsel, particularly Mr Kuan in this appeal.