THE QUEEN v. LEUNG TAK-CHOI

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HEADNOTE

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Application for permanent stay of criminal proceedings

Defendant together with others were arrested as they were leaving the scene of crime with the victim of false imprisonment and blackmail - he was jointly charged with the others - all others are convicted after trial

Defendant had IQ of 56 - after an enquiry pursuant to s.75 of Criminal Procedure Ordinace, Cap 221, special jury found him to be under disability so that he was not fit to be tried-doctor said such condition was incurable and the best way of dealing with him was guradianship

Grounds relied on - unfair towards defendant since court has no discretion and no options under s.76(1) of CPO and must send him to psychiatric centre or mental hospital; no determination on his involvement in the alleged offences and no chance of potential acquittal; s.76(1) in breach of Articles 3, 5(1) & (3), 6, 10, 11 and 22 of Bill of Rights;

Held :

(1) s.75 (2) of CPO gives court a discretion to postpone determination of the question of disability to enable a defendant to have chance of acquittal;

(2) the purposes of s.76 are : (i) in the interest of a defendant, he is detained in a psychiatric centre or mental hospital to be examined, assessed and treated if necessary and possible; (ii) in the public interest, a decision will be made at a later stage by the Governor as to whether he should be tried if satisfied after consultation with the medical superintendent or the CSD that defendant can properly be tried;

(3) upon a s.76(1) order, the Fourth Schedule applies and brings in the provisions of the Mental Hospital Ordinances; a person subject to such order is entitled to rely on the different ways in the MHO for dealing with those who fall within that Ordinance and for applying for a discharge including guradianship which the doctor said is to the defendant's benefit;

(4) s.76(1) of CPO is different from s.45 of the MHO - it is not a hospital order (see definition in s. 2); it is not the end of the proceedings; it serves specific purposes; it is not a form of punishment;

(5) s.76(1) must not be looked at in isolation but should be considered in the context of the scheme provided under s.75, s.76 and the Fourth Schedule of the CPO and the provisions of the MHO; it is not in breach of the Bill of Rights: it is not degrading treatment or punishment; it does not discriminate against a person under disability; it does not deprive a defendant of a fair and public hearing or an opportunity of acquittal; and he is not deprived of any options or is locked up forever without trial;

(6) paragraph 1(2) of the Fourth Schedule and s.38 of the MHO can be invoked to avoid the present defendant being detained in psychiatric centre for any unnecessary period; court called for reports before making order.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

HIGH COURT CRIMINAL CASE NO.457 OF 1994

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DECISION

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1. This is an application by the defendant Mr Leung Tak-choi for a permanent stay of the criminal proceedings against him.

Background

2. At about 7.30 a.m. on 30th June 1994, the defendant, together with three other persons, were arrested by police officers while they were getting out of a restaurant together with a woman who was alleged to be the victim of false imprisonment and blackmail by these people. It was alleged that in the early hours of the morning on that day, the defendant was one of a group of six persons who had unlawfully detained the woman on the mezzanine floor of a restaurant and blackmailed her for the sum of $15,000 by using force and threats. The woman was asked to pay "compensation" to these people for having over-charged the leader of the group while he was earlier on patronising at the club in which the woman worked as a hostess. The woman, pretending to make phone calls to her friend and husband for the purpose of getting money to pay these people, alerted her friend and husband who in turn reported the matter to the police. As a result of such reports, the police finally got to the restaurant, rescued the woman and arrested the defendant and three other persons while they were leaving the restaurant. Another person was arrested about 1 1/2 months later. The defendant was originally jointly charged with some of them for false imprisonment, blackmail and robbery.

3. At the beginning of this trial, counsel for the defendant requested that no plea be taken from him. There were medical reports from two private doctors who certified that the defendant was a person of an I.Q. of about 56. Counsel then applied to me to stay the proceedings against him permanently. It was submitted that because of his mental condition and/or capacity, the defendant was not fit to be tried. I refused the application for the reason that if he was not fit to be tried, he could be dealt with under the provisions of s.75 of the Criminal Procedure Ordinance, Cap.221; but if he was fit to be tried, he should be arraigned and tried. Counsel then indicated to me that he would raise the issue of fitness to be tried before the defendant was arraigned.

4. A special jury was empanelled to decide on this issue. At the end of an enquiry in which the defendant did not give evidence but called Dr Greene as a witness, the jury returned a verdict that the defendant was under a disability and was not fit to be tried.

5. It is on the basis of such a finding by the jury that counsel for the defendant now applies for a permanent stay of the proceedings against him. The complaint is that since the jury had found him to be under a disability so that he could not be tried, this brings into operation the provisions of s.76 of the CPO. It was the contention of counsel for the defendant that any order of the court make under this section was not only inappropriate in the circumstances, but would also work an injustice to the defendant and that s.76(1) was in breach of the provisions of the Bill of Rights. The appropriate order, counsel submitted, was that the case against the defendant should be stayed permanently.

6. I should perhaps mention that since hearing the submissions of both counsel, the trial against the other persons who had been arrested proceeded. They were all found guilty unanimously by the jury of false imprisonment and blackmail.

Medical evidence adduced in this application

7. Dr Greene was called on behalf of the defendant in support of the present application. He said that the defendant was mentally retarded, that this condition was permanent and that there was no cure. According to him, it was not necessary to detain the defendant in a mental hospital. He went further as to say that it would be undesirable to send him there. All that the defendant needed was socialisation and skilled training so that he could learn how to look after himself. The doctor also said that a guardianship order which was in the nature of a psychiatric probation order would be more appropriate. He mentioned a number of advantages of such an order: it was highly flexible; the court could provide a statutory minimum period of care and supervision; there was the possibility of bringing the defendant back to court if the order was not complied with and it exposed the defendant to some caring individuals who would integrate him into society by providing him with assistance, work and domestic care.

8. Dr Greene agreed, however, that if the defendant was sent to a mental hospital or a psychiatric centre, he could then be placed under guardianship. But he added that this would not be appropriate because he would be surrounded by other disturbed individuals, the process of getting him into a mental hospital or psychiatric centre for getting him guardianship was a clumsy process and it was uncertain as to how long the defendant had to remain in a mental hospital or psychiatric centre before he could be given guardianship.

9. The submissions of both counsel for the defendant and for the prosecution were very helpful and persuasive. They can be summarised as follows.

Submissions for the defendant

10. Counsel first of all very helpfully went through a historical analysis of the law in this area. It was pointed out that historically the question of fitness to plead was treated at common law as broadly synonymous with the defence of insanity and that the test for unfitness to plead appeared to be grounded on insanity. Counsel submitted that the present ss.75 and 76 of the CPO were based on ss.4 and 5 of the Criminal Procedure (Insanity) Act 1964. Under these provisions, upon a finding of disability, the court was obliged to order that the defendant be admitted to a specified mental hospital or psychiatric centre. Counsel submitted that such provisions were subject to two criticisms. First, it was unfair to the defendant if he was to be sent to mental hospital without a determination of his involvement in the alleged crime and that if it turned out that the alleged victim was not able to come up to proof or was disbelieved in her allegations, he would be deprived of a chance of getting acquitted as an innocent man. It was argued that it would be unfair if there was no trial on the facts and yet the defendant had to go to a mental hospital. He would be worse off than a person setting up the defence of insanity because that kind of person would at least have gone through a trial whereas a person under disability would not have such an opportunity.

11. The second criticism was that the compulsory nature of the order to be made by the court under such statutory provisions was not a proper or appropriate method of dealing with a defendant under disability. This would cause unfairness and might even do harm to the defendant. This was particularly so in the present case as the medical evidence showed that the defendant was only mentally sub-normal with a low I.Q. and could not be cured.

12. Counsel further argued that s.76(1) of the CPO was inconsistent with s.45 of the Mental Health Ordinance, Cap. 136. Under s.45 of the MHO, it was a pre-condition to the granting of a hospital order that there must be medical evidence to the effect that it was appropriate to detain a defendant in a mental hospital and that the treatment there was likely to improve his condition and before a hospital order could be made, there would either be a conviction of the defendant on the charges or some form of assessment of his involvement in the crime. On the other hand, under s.76(1) of the CPO, there was no pre-condition that the court must be satisfied that a hospital order was appropriate or beneficial to the defendant and there was no consideration of or no need to consider any medical evidence as to the best method of dealing with the defendant. Furthermore, there was no assessment of any involvement in the crime prior to the court making such an order.

13. It was submitted that some of the problems arising out of the provisions of ss.75 and 76 of the CPO were alleviated by ss.2 and 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 in England which amended the provisions of the 1964 Act upon which the Hong Kong s.75 and s.76 of the CPO were based. The major improvement was that the new provisions allowed for a form of hearing on the issue of the defendant's involvement and such hearing could result in an acquittal of the defendant without any order being made. The second improvement was that the court was provided with a range of options including guardianship, supervision orders or an absolute discharge as methods of dealing with a defendant under disability.

14. Counsel argued that since there was no statutory provision in Hong Kong comparable to these new provisions, s.76(1) of the CPO worked out to be unfair towards the defendant since there was no opportunity of a potential acquittal because there was no hearing on the merits and there was no options given to the court which was under an obligation to order the detention of a defendant under disability in a mental hospital or psychiatric centre.

15. Counsel submitted that the loss of an opportunity to a potential acquittal because there was no hearing on the merits was against several articles of the Bill of Rights. First, it was against Article 5(3) which required that a detained person should be promptly brought before the court and be tried within a reasonable time or be released. It would also contravene Article 10 which stipulated that all persons should be equal before the court and that he should be entitled to a fair and public hearing. It would be in breach of Article 11 which stipulated that a person charged should be tried without undue delay. It would also contravene, counsel argued, Article 22 which provided that all persons were equal before the law and not subject to any discrimination. It was counsel's contention that a defendant found to be under a disability had to be detained under s. 76(1) of the CPO in a mental hospital or a psychiatric centre without any hearing on the merits of the allegations against him. He was therefore deprived of the right to a trial, he is being treated not equally as those of full capacity, there was no fair and public hearing whereby it might be possible that he could be acquitted; he was to be detained indefinitely without due legal process. It was pointed out that even the English new provisions did not produce fairness either because at the hearing for a determination on the facts, the defendant, since he was under disability, could not effectively take part in such process. Counsel remarked that our ss.75 and 76 were even worse in that no attempt was made to deal with or reduce these problems.

16. Counsel further submitted that the lack of options provided to the courts under s.76(1) of the CPO caused injustice and absurdity in that a hospital order was made when the medical evidence was such that it was not necessary to do so and was of no significant benefit to the defendant. It was submitted that such an order of detention in a mental hospital or psychiatric centre was an inhuman and degrading treatment which was contrary to Article 3 of the Bill of Rights. It was also argued that s.76(1) was in breach of Article 5(1) in that the order of the court was an arbitrary power since it was mandatory and made irrespective of circumstances, and there was no pre-conditions, safeguards or other criteria laid down for the making of the order and that an order under this subsection was open-ended. Finally, it was submitted that such a power under s.76(1) of the CPO was neither rational nor proportional.

17. It was submitted that s.76(1) was legislation which pre-existed the Hong Kong Bill of Rights Ordinance, that it did not admit of a construction consistent with the Bill of Rights and should, therefore, be deemed to have been repealed to the extent of the inconsistency pursuant to of s.3(2) of that Ordinance. It was further submitted that alternatively the court had power under s.6 of that Ordinance to grant such remedy or relief in respect of a breach or violation of the Bill of Rights and could strike down the word "shall" in s.76(1) of the CPO and interpret it as "may" by giving a discretion to the court. Counsel urged upon the court that the case should either be stayed under s.6 of the Hong Kong Bill of Rights Ordinance or in the exercise of the court's inherent jurisdiction.

Submission for the prosecution

18. Counsel for the prosecution submitted that the case had already been stayed by reason of s.75(5) of the CPO and that the remaining issues were : first, whether s.76 was consistent with the Bill of Rights; second, if it was valid, whether the treatment of the defendant was inconsistent with it and if so, what remedies were available to the court; and third, if s.76 was inconsistent with the Bill of Rights, what disposition of the accused could be made.

19. Counsel accepted that the law was not in an ideal state and that there might be better and more humane ways of dealing with such situation. He pointed out that there was a proposal which was at an advanced stage to change the present law and to bring it into line with the present position in England and Wales under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991.

20. Be that as it may, counsel submitted that the provisions governing the determination of whether a person was fit to stand trial (s.75 of the CPO) and the provisions governing the disposition of a person found unfit to stand trial (s.76) were consistent with the Bill of Rights. He argued that although s.76(1) required the court to make an order that an accused be admitted to a psychiatric centre or mental hospital, s.76(2) brought in the provisions of the Fourth Schedule to the CPO. The Fourth Schedule provided further details as to the treatment of the person ordered to be detained in the psychiatric centre or mental hospital. In particular, paragraph 2 of the Fourth Schedule provided that the person to be detained shall be treated for the purposes of the Mental Health Ordinance as if he had been so admitted in pursuance of a hospital order made under s.45 of that Ordinance. It was counsel's submission that this called into operation all the provisions of the MHO which were to govern the person so detained under a s.76(1) CPO order. He said that under the provisions of the MHO, there were a number of ways in which the person detained could seek a discharge. He could be discharged by the medical superintendent under s.46A of that Ordinance; or by the Commissioner of Correctional Services with the consent of the Governor under s.47(1A); or by the Mental Health Review Tribunal under Part IVA of that Ordinance. He also submitted that there were other remedies for any aggrieved person in that the Governor may refer a case to the Tribunal at any time under s.59C; the rulings of the Tribunal are also susceptible to judicial review; and the Tribunal may also stay the case for the opinion of the High Court under s.59H(5) of that Ordinance. It was therefore submitted that a defendant who was detained under s.76(1) of the CPO was not detained for life and that not only were there ways of getting discharged, there were also other venues for judicial review.

21. With regard to the argument that s.76(1) of the CPO was in breach of Article 5(1) of the Bill of Rights, counsel for the prosecution submitted that any detention under that section was established by law and that it was not arbitrary in any way. Counsel pointed out that unlike a defence of insanity where the issue of the mental capacity of an accused was determined by reference to his mental condition at the time of the alleged crime, the same issue in the case of a person under disability was determined by reference to his medical condition at the trial. It was argued that after a defendant was found to be unfit to stand trial, the purpose of his detention was to re-assess the person's present conditions so that he might be treated, if necessary, or if not, discharged according to the different means as provided in the provisions of the Mental Health Ordinance. There could be a wide range of circumstances which might make a person unfit to be tried. That being the case, counsel submitted, it was in his interest and that of the community that he be assessed by those competent to do so with the back-up of the supervisory procedures under the MHO. Therefore, it could not be said that a person detained under s.76 of the CPO was punished for any wrong-doing. There was no question of punishing an innocent person because the presumption of innocence still attached to that person. Any length of detention would bear no relation to the alleged crime against him.

22. Counsel also submitted that although the judge had no discretion under s.76(1) of the CPO and while it was desirable that there should be a discretion, such provision was not against the Bill of Rights because of the various means by which the defendant might be discharged when he was placed in a psychiatric centre or mental hospital.

23. With regard to Article 10 of the Bill of Rights, counsel argued that there were two rights which might arguably be involved : the right to a fair trial and the right to be equal before the courts. He submitted that the right to a fair trial did not arise in this case. This was because by reason of s. 75(5), the trial process was now over and the detention under s.76(1) was wholly outside the trial process. A defendant detained under that provision was not being punished or detained for a crime that he had committed. He was there because he was so mentally unwell that he was unfit to stand trial. Although he was detained, there was no implication at all that he had been convicted without trial or found guilty without a trial. As far as equality before the law was concerned, counsel submitted that wrongful discrimination was not the same as different treatment. The Bill of Rights only prohibited wrongful discrimination but not different treatment. It was submitted that in some cases, it would even be wrong to treat different categories of individuals in the same way. There was no determination on the facts for a person under disability because of his condition and/or unfitness. It would be wrong in the circumstances to treat him equally with those who were under no disability because it would be unfair for him to stand trial or to face a determination on the facts. Counsel argued that the equality rights of a defendant under Article 10 were not violated by s.76(1) of the CPO.

24. Counsel for the prosecution further argued that if the legislative scheme was found to be consistent with the Bill of Rights, then an order under s.76(1) must follow. He submitted that s.6 of the Hong Kong Bill of Rights Ordinance could not avail the defendant because that provision only empowers a court to grant a remedy for a breach of the Bill of Rights and within its existing jurisdiction. There was no power to "stay" the proceedings if there was no breach of the Bill of Rights and if there was no discretion conferred on the court under s.76(1).

25. Finally, counsel submitted that if, contrary to what he contended, s.76 of the CPO was held to be inconsistent with the Bill of Rights and thus repealed, the result was that the court could order that the defendant be discharged from further attendance. But if the court held that s.76 was valid, it might wish to consider the sort of orders it should make under the Fourth Schedule to speed up the proceedings.

The relevant provisions in the CPO

26. Counsel for the defendant did not seek to argue that s.75 is unfair or in breach of the Bill of Rights. As I understand it, it is s.76(1) which is under attack. In order to decide whether that provision contravenes the Bill of Rights and/or works unfairly or is discriminatory against a person found to be unfit to stand trial, and in particular the present defendant, it is necessary to examine the scheme provided by s.75 and s. 76. The two sections are as follows :

"75. Unfitness to plead

	(1)	Where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused person is under disability, the following provisions shall have effect.
	(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 interest 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 of the defence, and if before the question of fitness to be tried falls to be determined the jury returned 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 a jury other than that which determined that question;
	(b)	where it falls to be determined at any later time it shall be determined by a separate jury or by the jury by whom the accused person is being tried, as the court may direct.

	(5)	Where in accordance with subsection (2) or (3) it is determined that the accused person is under disability, the trial shall not proceed or further proceed.
	(6)	In this section 'verdict of acquittal' does not include a special verdict that the accused person is not guilty by reason of insanity.

76. Orders for admission to hospital

(1)

Where -

	(a)	a special verdict that the accused person is not guilty by reason of insanity is returned; or
	(b)	a finding is recorded that the accused person is under disability, the court shall make an order that the accused person be admitted to the Correctional Services Department Psychiatric Centre or such mental hospital as may be specified by the Governor.

	(2)	The provisions in that behalf of the Fourth Schedule shall have effect in relation to orders for admission to the Correctional Services Department Psychiatric Centre or a mental hospital made under this section.
	(3)	Subject to the provisions of the Fourth Schedule, if while a person is detained in a mental hospital in pursuance of an order under subsection (1)(b) the Governor, after consultation with the medical superintendent, is satisfied that the said person can properly be tried, the Governor may by order direct such person be remitted to prison or to a training centre established under s.3 of the Training Centres Ordinance (Cap.280) for trial at the court where but for the order he would have been tried; and on his arrival at the prison or training centre the order under subsection (1)(b) shall cease to have effect.
	(4)	Subject to the provisions of the Fourth Schedule, if the Governor, after consultation with the Commissioner of Correctional Services, is satisfied that a person detained in the Correctional Services Department Psychiatric Centre in pursuance of an order under subsection (1)(b) can properly be tried -

	(a)	the Governor may by order direct that such person be detained in the custody of the Commissioner of Correctional Services for trial at the court where but for the order under subsection (1)(b) he would have to be tried; and
	(b)	the order under subsection (1)(b) shall cease to have effect if the Governor makes an order under paragraph (a).

FOURTH SCHEDULE

Effect of orders for admission to hospital

1.(1) An order for admission to the Correctional Services Department Psychiatric Centre or to a mental hospital under section 76(1) shall be sufficient authority for -

	(a)	in the case of admission to the Correctional Services Department Psychiatric Centre, the Commissioner of Correctional Services; or
	(b)	in the case of admission to a mental hospital, any person acting under the authority of the Governor,

	to take the person to whom the order relates and convey him at any time within the period of 28 days (beginning with the day on which the order was made) to the Correctional Services Department Psychiatric Centre or the mental hospital specified by the Governor.
	(2) The Court by which any such order as aforesaid is made may give such directions as it thinks fit for the conveyance of a person to whom the order relates to a place of safety and his detention therein pending his admission to the Correctional Services Department Psychiatric Centre or the mental hospital within the said period of 28 days.
	(3) Where a person is admitted within the said period to the Correctional Services Department Psychiatric Centre or the mental hospital specified by the Governor under section 76(1), such order shall be sufficient authority for the Commissioner of Correctional Services or the medical superintendent to detain him therein in accordance with section 45 of the Mental Health Ordinance (Cap. 136) as applied by paragraph (2) of this Schedule.
	2. A person who is admitted to the Correctional Services Department Psychiatric Centre or a mental hospital in pursuance of an order under section 76(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 day of the order under section 76(1)) under section 45 of that ordinance without an endorsement under subsection (1A) of that section."

The scheme under ss.75 and 76 of CPO

27. In my view, the effect of these provisions is as follows. If on the trial of a person, the question arises as to whether he is under such disability that he is not fit to be tried, this question shall be tried as soon as it arises by a special jury. However, the court may proceed with the trial and postpone consideration of this question until the opening of the case for the defence if, having regard to the nature of the supposed disability, it thinks that it is expedient and in the interest of the defendant to postpone consideration of such question. So the following situations may arise. If the question is decided there and then by a special jury and the defendant is found to be under a disability, then the trial against him shall not proceed. If the jury finds him to be fit to stand trial, he will be arraigned and tried. If the question is postponed and the trial proceeds, and before the defence case, the charge against the defendant is not proved, then he shall be acquitted. If there is a case for him to answer after the prosecution's case, the court may then empanel a special jury or direct the same jury to try the question of whether the defendant is under a disability. If the jury finds him to be under such disability, the trial shall not proceed against him. If, on the other hand, the jury finds him to be fit to be tried, the trial continues.

28. This option to postpone consideration of the question of disability is clearly and expressly aimed at protecting the interest of the defendant. It covers the situation where the court, having looked at all the materials and evidence which the prosecution proposes to adduce, takes the view that there is a real possibility that because of the weakness of the allegations or of the mental condition of the defendant, the prosecution's case may not come up to proof or there may not be sufficient evidence to establish a prima facie case against the defendant. In that case, the defendant should be entitled to an acquittal at or even before the end of the prosecution's case. The question of his disability need not be decided. The defendant is then clearly in a more advantageous position because he can avoid such a decision and the consequence of an order under section 76.

29. If the defendant is found by the jury to be under disability so that he cannot be tried, then s.76 comes into operation. The court is obliged to send him to a CSD Psychiatric Centre or a specified mental hospital. Upon the making of this order, two consequences follow. First, the Fourth Schedule applies to the defendant and by virtue of that Schedule, the provisions of the Mental Health Ordinance in turn would apply to him. Second, if at a later stage, the Governor, having consulted the medical superintendent or the Commissioner of Correctional Services, is satisfied that the defendant can properly be tried, the Governor may direct that the defendant be remitted to a prison or a training centre pending trial.

The purpose and objective of s.76 of CPO

30. In my view, the purpose and objective of s.76 of the CPO is this. It is in the public interest that a person who is arrested by the police and suspected of having committed a crime should be tried. However, if the person is under a disability so that he cannot stand trial, it would be unfair to proceed with the trial against him. Unlike insanity, disability is not a defence. It is not the condition of the defendant at the time of the alleged offence but his condition at the time he is to stand trial. "Under disability" as mentioned in ss.75 and 76 the CPO is defined in s.2 as follows:

"Under disability, in relation to an accused person, means under any disability such that apart from this ordinance it would amount to a bar to his being tried."

31. Disability in the present context refers to the lack of ability to understand the charge against him, to give instructions to his lawyers, to challenge jurors, to understand the evidence given against him, and to give evidence in defence (see Archbold 1995, para 4-161). If a person is under such disability, then he need not be tried and if it were not for the provisions of s.76 of the CPO, he would have been able to go free. However, although he is still presumed innocent, releasing him without a proper trial may not be in the interest of justice if there is sufficient evidence against him. So while s.75 (2) provides that the court may postpone consideration of the question of his disability to avail him of a chance to get acquitted if there is no sufficient case against him, s.76 (2) and (3) ensure that if there is sufficient evidence against him, a decision will be made as to whether he should stand trial at a later stage if he is fit to be tried again. The Governor is entrusted to make such a decision.

32. In my view, it is with such objective in mind that pending such a decision he is detained in a psychiatric centre or a specified mental hospital so that he would be examined, assessed, and treated if necessary.

33. The purpose of s.76 is therefore two-fold. First, in the interest of the defendant, he is detained in a psychiatric centre or a specified mental hospital to be examined, assessed and treated if this is possible. Second, in the public interest, it must be decided at a later stage by the Governor whether the defendant is fit to be tried. I do not accept that a detention in a psychiatric centre or mental hospital under s.76 (1) is a punishment of an innocent person.

34. Furthermore, s.76(1) is not a hospital order. "Hospital Order" is defined in s.2 of the CPO to mean "an order made under ss.45, 49, 54, or 54A of the Mental Health Ordinance, Cap. 136". It does not include a s.76(1) CPO order.

Whether s. 76 (1) of CPO inconsistent with s. 45 of MHO

35. With respect, I do not agree that s.76(1) of the CPO is inconsistent with s.45 of the MHO. Section 76 brings into operation the Fourth Schedule to the CPO. There are two references in the Fourth Schedule to s.45 of the MHO. First, paragraph 1 (3) confers authority on the Commissioner of Correctional Services or medical superintendent to detain the person subject to a s.76 (1) CPO order in accordance with s.45 of the MHO. Second, paragraph 2 of the Fourth Schedule provides that a person detained under a s.76(1) CPO order shall be treated for the purposes of the Mental Health Ordinance as if he was detained in pursuance to a hospital order under s.45 of the MHO.

36. In my view, such references do not mean that a s.76(1) CPO order is to be compared with a s.45 hospital order. It only means that a person detained under a s.76(1) CPO order and a person detained under a s.45 hospital order are both to be governed by the provisions of the Mental Health Ordinance.

37. 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 as 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 centre or a 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.

38. 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. A s.76 (1) CPO order is therefore different in nature and is made for a quite different purpose.

39. Once it is understood that s.76(1) of the CPO and s.45 of the MHO serve different purposes, the question of inconsistency does not, in my view, arise. Under s.76(1), no medical evidence is strictly speaking necessary for a determination on his disability although most of the time there is such evidence. When a s.76 (1) CPO order is made, the defendant is to be examined, assessed and treated if necessary and possible in the psychiatric centre or mental hospital. There is no determination of the person's involvement in the alleged crime because he is not fit to take part. If he becomes fit to stand trial, he will have his day in court for a determination on the charge against him if the Governor so directs and if he does not, he is detained in a psychiatric centre or mental hospital for his benefit. If he is incurable, there are the safeguards under the provisions of the Mental Health Ordinance.

The provisions of the Mental Health Ordinance

40. It was submitted that an order under s.76(1) of the CPO was for an indefinite period. It was also submitted that it was undesirable to detain a person who, like the defendant in the present case, could not be cured in a psychiatric centre or mental hospital. It is worthwhile therefore to examine the relevant provisions of that Ordinance.

41. In 1988, there were major changes to the Mental Health Ordinance. These included an amendment to the definition of "mental disorder" which was updated; amendments to the provisions on admission to, detention in and discharge from a mental hospital or psychiatric centre which were clarified; the introduction of guardianship which caters for persons who do not need to be detained in a mental hospital or psychiatric centre; and the establishment of a Mental Health Review Tribunal which keeps under review persons who have a mental condition with a view to their discharge.

(1) admission and detention

42. It is clear that not every person can be received into a psychiatric centre or mental hospital. It is only a person who is or suspected to be a mentally disordered person who can be so admitted. The definition of "a mentally disordered person" was amended in 1988 and it is interesting to note that as defined in s.2 of the MHO, it is now wide enough to cover a person who has an arrested or incomplete development of the mind and a disability of the mind. It would seem therefore that a person who is mentally retarded may well fall within such definition.

43. A mentally disordered person who is not involved with any criminal proceedings can only be received and detained in a mental hospital under the provisions of Part III of the MHO. He may be admitted as a voluntary patient under s.30 and he can of course apply to be discharged but if the medical superintendent thinks that he is still unwell, he has the power to detain that person for further observation and treatment. He may be detained as a patient for observation and treatment under the provisions of s.31 and his detention and discharge are governed by provisions of that section. He may also be detained as a certified patient under s.36 which deals with his detention, treatment and discharge. A mentally disordered person who is involved in or suspected of some criminal activities may be detained under the provisions of s.45 and his detention and discharge are governed by the provisions of Part IV. These are the only ways by which a person may be admitted and/or detained in a mental hospital under the provisions of the Mental Health Ordinance. He is, however, not detained therein for an indefinite period. There are various provisions by which he can take advantage of and obtain a discharge if he is considered to be well enough to be discharged.

44. By virtue of paragraph 2 of the Fourth Schedule to the Criminal Procedure Ordinance, a person detained pursuant to an order made under s.76(1) is of course not admitted pursuant to any of the provisions of theMental Health Ordinance. However, he is similarly governed by the provisions of that Ordinance and hence also entitled to the benefit of those provisions relating to discharge.

(2) discharge from mental hospital or psychiatric centre

45. Counsel for the prosecution referred to a number of ways in which a person who is aggrieved by a hospital order can challenge it in the courts. They form part of the legal process which any aggrieved person can invoke. I do not propose to deal with them here. I shall, for the purpose of this application, only deal with those means for discharge provided in the MHO.

46. First, since a person detained a s.76(1) CPO order is to be treated for the purposes of the Mental Health Ordinance as a person admitted under a s.45 hospital order, s.48 of the MHO also applies to him. He can therefore appeal against the order in the same manner as any other judgment or order of the court.

47. Second, under s.47 (2), a person detained in pursuance of a hospital order can be discharged by the Commissioner of Correctional Services with the consent of the Governor.

48. Third, he can take advantage of the provisions of Part IVA of the MHO relating to the Mental Health Review Tribunal. Under s.59B of that Ordinance, there can be an application to the Mental Health Review Tribunal to have a case reviewed or for a discharge. Under the provisions of that section, a person who is liable to be detained in a mental hospital or a CSD psychiatric centre or his relative can apply to the Tribunal.

49. Fourth, it is also possible to apply for guardianship under the provisions of s.33 of the MHO. An application may be made on the grounds that the person is suffering from mental disorder of a nature or degree which warrants his reception into guardianship and it is necessary in the interest and the welfare of the patient or for the protection of other persons that the patient should be received into guardianship. The application is to be made to the Director of Social Welfare. The application has to be supported by the written opinions of two registered medical practitioners. A relative of the patient, a doctor or an officer of the Social Welfare Department can apply for such guardianship. Upon an application, the Director of Social Welfare may require the person to reside at a specified place, to attend medical treatment, occupation, education or training or to have access to a doctor. The duration is for two years.

50. Fifth, a person detained in a mental hospital or psychiatric centre or subject to guardianship may also apply under the provisions of ss.42A and 42B for discharge. The medical superintendent has the discretion to discharge him.

51. It is therefore clear that an order under s.76(1) of the CPO is not an order for an indefinite duration. There are suitable ways by which he can seek a discharge. This depends of course very much on his condition after examination, assessment and treatment if necessary and possible. I do not think that one can seriously criticise that the power of releasing a person so detained is not in the hands of the court but at the discretion of the Administration. Such a power is vested in professional people such as medical practitioners and social workers who are in a better position than the court to assess the condition of the person and to decide whether he should be released or not.

52. If Dr Greene is correct in that guardianship is the best method of dealing with the defendant in the present case, I am sure that an application can easily be made within a very short time. The purpose of guardianship is to enable the person to receive socialisation and skilled training as Dr Greene suggested.

Any breach of the Bill of Rights

53. With regard to the question of whether s.76(1) of the CPO is inconsistent with the Bill of Rights, I accept that if it is, then by virtue of s.3 (2) of the Hong Kong Bill of Rights Ordinance, it is, to the extent of the inconsistency, repealed. However, counsel for the defendant submitted that I could strike down the word "shall" in s. 76 (1) and interpret it as "may", with the result that the court has a discretion whether to make an order under this section or not. With respect, I do not think I can substitute "may" for "shall" in such a way. In fact, the court is not empowered to repeal any legislation or to do anything under s.3 of the Ordinance. The court interprets a particular provision in a pre-existing legislation. If it takes the view that that provision is inconsistent with the Bill of Rights, then s.3 takes effect. The court simply declares that the particular provision has been repealed by the Ordinance.

54. Counsel for the defendant further submitted that if s.76(1) of the CPO was repealed by the Bill of Rights, I could, under s.6 of the Ordinance, stay the proceedings against the defendant or otherwise deal with him as if I had a discretion. I do not think I can do that either. Section 6 of the Ordinance only empowers the court to "grant such remedy or relief, or make such order ... as it has power to grant or make ... and as it considers appropriate and just in the circumstances". If s.76 (1) is repealed, it stands repealed. There is no power in the court, be it mandatory or discretionary, to deal with the defendant. That would be the consequence of striking down that section. As counsel for the prosecution suggested, it simply means that in that case, the defendant is discharged from further attendance in court.

55. I was referred to the case of R. v. Chiu Te-ken, Deacon and another, [1993] 2 HKLR 21. The learned judge said at p.55 :

56. Regrettably, he did not make any specific finding on the validity of s.76 of the CPO under the Bill of Rights or give any reason for his comments.

57. I shall now deal with each of the articles in turn. The relevant articles relied upon are as follows :

          "Article 3

          No one shall be subjected to... cruel, inhuman or degrading treatment or punishment...

Article 5

	(1)	Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
	(3)	Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release...

Article 10

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law....

Article 11

	(1)	Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
	(2)	In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality -
	(c)	to be tried without undue delay;

Article 22

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

58. I do not think there is any breach of Article 3 of the Bill of Rights. A detention under s.76(1) of the CPO cannot be regarded as inhuman or degrading treatment or punishment. The defendant has been suspected of having been involved in some crimes. Because of his condition or disability, the trial against him cannot proceed. He is to be admitted under s.76(1) to a psychiatric centre or mental hospital. This is in his interest and for his benefit because he can be examined, assessed and treated if this is necessary and possible. If he is incurable and is only in need of guardianship, there are provisions in the MHO to apply for it. There are also various ways for him to apply for discharge. Further, it is in the interest of the public that after he is cured if this is possible, the Governor may decide whether he is to stand trial or not. That being the case, his detention cannot be regarded as inhuman or degrading treatment let alone punishment.

59. There is also no breach of Article 5(1). He is not subjected to arbitrary arrest or detention. There is sufficient material to raise a suspicion that he was or had been involved in some crimes. He should be subject to the due process of the law. He is to stand trial if not for his disability. His detention under s.76(1) of the CPO is in accordance with the procedure as is established by the provisions of that Ordinance. That cannot be regarded as arbitrary because there are sound legal basis and good reasons for his detention, namely, to examine, assess or treat him and to enable a decision to be made by the Governor at a later stage as to whether he can properly be tried. The detention is not for an indefinite period in view of the provisions of the MHO particularly those relating to discharge and guardianship. The Governor's power cannot be regarded as arbitrary either as he would be acting in consultation with the medical superintendent or the Commissioner of Correctional Services who would be advising him as to the condition of the defendant.

60. Nor can I say there is a contravention of Article 5(3). He has been brought before a court of law but found by a special jury to be under a disability so that he cannot be tried for the time being. He is certainly entitled to a trial, but it would be unfair to him to try him or even to have a determination on his involvement in the crimes alleged against him now because of his condition until after he has been examined, assessed or treated if necessary and possible and a decision has been made by the Governor when he is satisfied that the person can properly be tried. If it is clear that he cannot be cured, a decision will be made that he will no longer have to face trial in future. This cannot be a cause for complaint.

61. I do not think there is any breach of Article 6(1) or (3) either. For the reasons which I have set out above, he cannot be regarded as a prisoner. The purpose of his detention is not to punish him, but for his benefit and to enable a decision to be made by the Governor at a later stage.

62. There is, in my view, no contravention of Article 10. He has been treated equally before the court. He invoked s.75 of the CPO and an enquiry was held according to the provisions of that section. There is no complaint that it was not a fair and public hearing. Because of his present condition, the trial against him cannot proceed. In fact, it would be unfair to him if he is to be tried when he is under a disability. As I said, even a determination of his involvement in the alleged crimes now would still be unfair to him if he is unfit to stand trial. There is no determination of the criminal charge against him because that is postponed until the Governor decides that he is fit to be tried. If he can be cured, he will not be deprived of his day in court. If he cannot, there will not be any trial at all. So I fail to see how there can be a breach of Article 10.

63. Similarly, with regard to Article 11(1) and (2)(c), it would be to his disadvantage if he is to be tried when he is unfit. His trial is postponed because of his condition and pending the decision of the Governor. If he cannot be cured and this can soon be confirmed, it is unlikely that he will be tried. In these circumstances, one cannot say that there is an undue delay in not holding a trial against him.

64. Article 22 is aimed at prohibiting discrimination. I do not think the detention under s.76(1) can be described as discrimination. He is certainly being treated differently under the law. This is because he is under a disability. It cannot be said that a s.76 (1) CPO order is discrimination. Indeed, it would be discrimination against him if he is to be treated as if he is an ordinary person without disability. I hold that there is no breach of Article 22.

How to deal with the defendant

65. Counsel submitted, and it seems that he was supported by Dr Greene, that since there was no cure for the defendant's condition which was permanent, it would be ridiculous to send him into a psychiatric centre or mental hospital so that he could be placed under guardianship. I accept that with the present imperfections in s.76 of the CPO, it would seem somewhat clumsy to make an order under that section so as to place him under guardianship.

66. As I mentioned during arguments, there are the provisions of paragraph 1(2) which empowers the court to give directions for the conveyance of a person to whom a s.76(1) order relates to a place of safety pending admission to a psychiatric centre within a period of 28 days. Furthermore, there is also s.58 of the MHO which is brought into operation by the paragraph 2 of the Fourth Schedule. This section provides that s.38 of that Ordinance shall apply to persons detained under the provisions of the Criminal Procedure Ordinance. Section 38 is as follows :

"When it appears to a medical superintendent that it would be for the benefit of any certified patient receiving treatment or special care or that it is necessary for the purpose of obtaining special treatment for any patient, that he should be temporarily transferred to and maintained in another hospital, institution or place, the medical superintendent, if the person in charge of the other hospital, institution or place is willing to receive the patient, may arrange for such transfer."

67. In my view, these provisions can be applied in this case if the defendant's condition is indeed not curable and guardianship is the best method to deal with him.

Conclusion

68. In my view, the submission that there will be a loss of potential acquittal cannot be sustained. There is an opportunity of an acquittal before the question of disability is tried by a special jury. If there had been any suggestion that there was a real possibility that he can be acquitted before the end of the prosecution case, the court could have been asked to adopt the procedure under s.75 (2) of the CPO. After the jury had found that he is under a disability and cannot be tried, the trial against him is stopped. But that does not mean there is no chance of an acquittal if in fact there is no sufficient evidence against him. The trial is postponed because it would be unfair to try him at that stage. It would still be unfair to him, even adopting ss.2 and 3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, to have a determination of his involvement in the alleged crimes when he is in such a condition. As it is, under the provisions of s.76 (3) and (4), he will have such an opportunity if the Governor, in consultation with the medical superintendent or Commissioner of Correctional Services, decides that he can properly be tried. If his condition is incurable and as I said, this can easily be confirmed, the Governor will certainly decide that he should not stand trial any more.

69. It is accepted that s.76 (1) of the CPO is mandatory and the court has no discretion. It would be better of course to give the court a range of powers. However, in any proposal to confer on the court various powers to deal with a defendant in such a situation, serious consideration must be given to the following points. First, under the present scheme, although the court has no discretion, by virtue of the provisions of the Mental Health Ordinance which are brought into operation, various powers are vested in the hands of professional people who would, in my view, be in a better position than the court to examine and assess his condition at a more appropriate time. Second, by bringing in the provisions of that Ordinance, while a defendant is under the restrictions of such provisions, he is also entitled to the benefit thereof. There is a wide range of ways to deal with him which would work to his benefit. Third, it must always be borne in mind that it is also in the interest of justice that a suspect should be tried if there is sufficient evidence against him unless there are good reasons for not doing so. Hence, while I accept that s.76 (1) is not perfect, I do not think that under the present scheme, a defendant, including this defendant, is deprived of any options which may work to his best interest and benefit.

70. Section 76(1) of the CPO must not be looked at in isolation but should be considered in the context of the whole section and of the scheme provided under s.75, s.76 and the Fourth Schedule of that Ordinance and the provisions of the Mental Health Ordinance. In the light of these, I do not think it can be said that s.76 (1) of the CPO is in breach of the Bill of Rights. With respect, it is wrong to assume that an order made under s.76 (1) is a form of punishment. It is wrong to assume that such an order puts an end to the criminal proceedings. It is wrong to assume that the person detained under such an order is deprived of a fair and public hearing or an opportunity of an acquittal if the alleged victim is disbelieved. It is also wrong to assume that he is deprived of any options and is "locked up" forever.

71. For the above reasons, I take the view that the operation of s.76 of the CPO does not work unfairly against the defendant when that section is considered as a whole together with s.75 and in the light of the provisions of the Mental Health Ordinance, including the safeguards provided therein. Furthermore, although s. 76 (1) can be improved, the present scheme, under the combined operation of the CPO and the MHO, is not inconsistent with the relevant articles of the Bill of Rights.

72. In the circumstances, the application to have a permanent stay of the proceedings against the defendant is refused. I propose to exercise my discretion under paragraph 1 (2) of the Fourth Schedule and call for reports regarding availability and suitability for his placement in a half-way house and the possibility of guardianship by the Director of Social Welfare.

73. Finally, I would like to thank both counsel for their extremely helpful assistance in this application.