R. v. LAM YUET SIU

IN THE COURT OF APPEAL

1993, No. 238
(Criminal)

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J U D G M E N T

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Sears J. (Giving the Judgment of the Court)

1. On 20th April 1993, the Applicant was convicted, on her own plea of two charges of procuring the execution of a valuable security, contrary to section 22(2) of the Theft Ordinance, Cap. 210.

2. The facts were that false documents were used to support alleged sale and purchase of goods with companies in China and on two occasions, bills of exchange in total sum of about HK$3,000,000.00 were obtained in favour of the Applicant's company.

3. His Honour Judge Burrell in the District Court, after the plea, remanded the applicant for medical reports. Two doctors examined her. Dr. Yu, who is the visiting psychiatrist at the Siu Lam Psychiatric Centre, was of the view that she was suffering from delusional disorder of the persecutory type and he recommended a Hospital Order under section 45 of the Mental Health Ordinance (Cap. 136) at Siu Lam Psychiatric Centre, for a period of not less than one year.

4. Dr. Lam, a well-known psychiatrist in Hong Kong, and a visiting psychiatrist at the Siu Lam Psychiatric Centre, was of a similar opinion and he recommended that a Hospital Order under s.45 should be made for a period of one year. Faced with those two medical reports, the judge considered it appropriate to make a Hospital Order. He referred to the offences which had been committed in 1987 and which had necessitated a total of 19 Court hearings in Hong Kong and many more in the United Kingdom.

The Judge said:

"Although it is not clear from the reports when the Defendant became ill and it is certainly possible that she was not ill at the time of the commission of the offences, I nonetheless consider it appropriate to make a Hospital Order in this case.

I propose to make the order for the same period I would have imposed by way of a prison sentence had the Defendant not been ill. Section 59 of Cap. 136 provides for a patient's transfers to ordinary custody once treatment for the mental disorder is no longer necesary. I accept that in this case at least one year's treatment will be necessary.

In normal circumstances a sentence of 4 years imprisonment after trial would be appropriate for criminal deceptions of this magnitude. I would have reduced that to 3 years because of her pleas of guilty and clear record.

In this case there is an additional consideration. Time already spent in custody is not credited against a hospital order. I therefore consider it proper to make a further reduction because of time spent in custody even although some of it (about 6 months) was spent in the United Kingdom awaiting extradition.

The length of the Hospital Ordinance (sic) I therefore make is 2 years.

If she no longer requires treatment before the expiration of that period the balance should be served in the custody of The Correctional Services Department."

5. Before making such an order the Court must under s.45(c) be 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."

6. The medical reports made it clear to the judge that the appropriate method of disposing of the case was by means of such an order. Power is given in this sub-section for the particular hospital to be specified and discretionary power is given to specify the period during which the person should be so detained.

7. Under s.59 of the Ordinance, if the Governor is satisfied from the report of the Medical Superintendent that the person detained by virtue of a Hospital Order no longer requires treatment, he may by order direct that the person be detained in prison in the custody of the Commissioner of Correctional Services for any period not extending beyond the expiration of the period specified in the Order.

8. What has happened here, in our judgment, is the judge has equated the period of time to be specified in the Hospital Order as that to which she would have been imprisoned. Mr. Grenville Cross, Q.C. on behalf of the Crown, has submitted that a punitive element may be contained in a Hospital Order. Of course, such an Order is a punishment because it imposes compulsory treatment in hospital but, nevertheless, it is clear from the Ordinance that before such an order can be brought into being, there must be evidence before the Court that such treatment is required.

9. We sympathize with the judge below because he was obviously concerned that as this was a serious fraud it required an appropriate punishment. In our judgment, he had a number of options open to him. He could have passed a sentence of imprisonment for two years and made a recommendation that the defendant obtain treatment in a mental institution in Hong Kong. Alternatively, he could have imposed a Hospital Order with no limit of time. Such an order, however, should be retained for the more serious type of offence and offenders, for example, when the violence of the defendant is such as to allow the Hospital authorities to judge when such a person should be allowed to go back into the community. Further, the Judge could not make an order that if the treatment was satisfactorily completed before two years then she should go to prison for the balance. Only the Governor can make such an order.

10. In our judgment, if the judge here was seeking to specify a period of time, then that period of time should be related to the evidence placed before him. The evidence was clear that a period of 1 year or "not less than 1 year" should be the period of treatment. The judge approached this on a wrong basis by seeking to equate the period with the sentence of imprisonment he would have been imposed. In our judgment, the appropriate order here should have been a Hospital Order for 12 months. We therefore grant the applicant leave to appeal, treat the application as the hearing of the appeal and we alter the sentence to one of a Hospital Order for 12 months.