HKSAR v. NG KWOK YUEN

CACC358/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 358 OF 2010

(ON APPEAL FROM HCCC NO. 60 OF 2010)

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

BETWEEN

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

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

REASONS FOR JUDGMENT

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

Hon Saw J (giving the judgment of the Court) :

1.  On 9 June 2011 we dismissed the applicant’s appeal against sentence and said that we would hand down our reasons in due course. These are our reasons.

2.  The applicant was charged with murder.  On 31 August 2010 he pleaded guilty to manslaughter on the basis of the defence provided for in section 3(1) and (2) of the Homicide Ordinance Cap. 339 namely the defence of diminished responsibility.

3.  The prosecution having been provided with two reports from psychiatrists on behalf of the applicant and having obtained reports from two other psychiatrists were prepared to accept that plea in satisfaction of the indictment.

4.  Subsequent to the plea of guilty and the admission by the applicant of a summary of facts the judge asked for and obtained further reports to determine whether or not the applicant was suitable to be dealt with pursuant to section 45 of the Mental Health Ordinance Cap. 136.

5.  On 27 September 2010 the judge ordered that the applicant be admitted to and detained in the Correctional Service Department Psychiatric Centre at Siu Lam (Siu Lam Psychiatric Centre).  The judge declined a request made on the applicant’s behalf to specify the period of his detention.

6.  The applicant, pursuant to section 48 of the Mental Health Ordinance appeals the judge’s order.  That section provides :

“Any person who is aggrieved by a hospital order made in respect of him or in respect of a child or young person of whom he is parent or guardian may appeal against the hospital order in the same manner as any other judgment or order of the court or magistrate and in any such appeal, the provisions of any other enactment relating to appeals against orders or judgments of the court of magistrate shall apply.”

The facts

7.  The summary of facts admitted by the applicant revealed that the applicant is aged 80.  The victim named in the indictment was So Yuen Kee (“Madam So”) was aged 68 when she was killed by the applicant on 8 August 2009.  She was the applicant’s wife.

8.  On the morning of 8 August 2009 as a result of a telephone call made by the applicant police officers went to Room 2512 Po Tai House, Po Lam Estate, Tseung Kwan O — there they found the body of Madam So.  She had been savagely attacked with a chopper which was found beside her.  The applicant readily admitted that he had killed her and that he had purchased the chopper two months before for that express purpose.  His reason being that he could not tolerate her any more.

9.  The consensus of opinion of the psychiatrists was that the applicant was at the time he killed Madam So and at 27 September 2010 suffering from an Organic Brain Disorder with frontal lobe features caused by a dementing process over an unknown number of years. This it was agreed had grossly impaired his judgment at the time of the killing. Dr Yuen Cheung Hang (Henry), a Visiting Psychiatrist at the Siu Lam Psychiatrist Centre considered that his prognosis was poor.  He said “of remorse I don’t think he has any remorse and I wonder whether he knows what remorse is”.  He recommended that the applicant be dealt with pursuant to section 45 of the Mental Health Ordinance.  He considered that notwithstanding his age “the risk that he would act violently again should not be underestimated because he has impairment in judgment and paranoid symptoms often developed in patients with Organic Brain Disorder.”

10.  As to the appropriate place for the applicant to be detained it was his opinion that at this stage Siu Lam Psychiatric Centre was appropriate and that in due course the Mental Health Review Tribunal could consider transferring him to Castle Peak Hospital.

11.  Dr Chow Kit Wan, also a Visiting Psychiatrist at Siu Lam Psychiatric Centre had a similar view.  He considered that the applicant remained an unpredictable violent risk.  He also considered that detention at the Siu Lam Psychiatric Centre was appropriate at this stage.

12.  There was no issue in the lower court that an order pursuant to section 45 Mental Health Ordinance was the appropriate course for the judge to take.  The applicant’s counsel said : “Indeed in the light of the recommendations of the psychiatrists, and given the fact that the accused is in need of care now and all other circumstances it would appear that a term of imprisonment being the only other alternative is not so appropriate and that a hospital order would be the most suitable method of disposing of the case.”

13.  The focus of submissions in the lower court was whether the applicant should be detained at Siu Lam Psychiatric Centre or in a Mental Hospital and in particular Castle Peak Mental Hospital (section 45 of the Mental Health Ordinance requires the judge to specify where a person is to be detained).  No issue was then taken with the recommendation that such an order should be for an unspecified term.

14.  As to where the applicant should be detained the judge concluded as had Drs Yuen and Chow that an order that the applicant be detained at the Siu Lam Psychiatric Centre was appropriate.  He did so having been advised that in due course the Mental Health Review Board may consider transferring him to the Castle Peak Mental Hospital.  He said :

“Consequently, I am satisfied that, having regard to all the circumstances, including the nature of the offence and the character and antecedents of the accused and other available methods of dealing with him, that the most suitable sentence is by making an order under section 45 of the Mental Health Ordinance, Cap. 136, authorizing the admission of the accused to and his detention in the Correctional Services Department Psychiatric Centre.

I am not prepared to specify any period for such admission.

…”

15.  In his homemade grounds of appeal the applicant has said inter alia that he would like the sentence to be reduced. 

16.  On 19 January 2011 Messrs Ip, Kwan & Co. filed a “Notice to Act” on behalf of the applicant. 

17.  On 16 May 2011 a document entitled The Applicant’s Submission and signed by Robert Andrews, counsel for the applicant was filed.  There are no perfected grounds of appeal.  In that document Mr Andrews seeks to a expand on the applicant’s homemade grounds of appeal and in oral submissions told us that what the applicant means is that the judge did not fix a period for his detention pursuant to section 45 of the Mental Health Ordinance and that he should have specified Castle Peak Mental Hospital and not the Siu Lam Psychiatric Centre as the place where he was to be detained. 

18.  Before us Mr Andrews accepted that there was no error on the part of the judge which was why no perfected grounds of appeal were filed.  Mr Andrews was suggesting as we understood his submission that we should now review the judge’s decision not to specify a period of detention and his decision to nominate Siu Lam Psychiatric Centre as the place of detention.  He submits that we should in this regard obtain updated psychiatric reports and having done so substitute orders which would result in a specified term of detention at Castle Peak Hospital.

19.  We are not prepared to adopt that course.  There are no grounds for us to interfere with the orders made.  They were neither wrong in principle nor was the sentence manifestly excessive. 

20.  In HKSAR v Yeung Kwai Kuen [2002] 3 HKC 395, 405 Stock JA said :

“Generally the court’s function is to look at the factors which prevailed at the date of sentence, and not to act as an administrative review, or a supervisory tribunal to take into account factors since sentence.”

21.  Mr Andrews’ submission in effect asks this court undertake the responsibilities of the Mental Health Review Tribunal whose function is to assess the progress of and accommodation of patients detained pursuant to section 45.  

22.  As it was Mr Andrews was unable to support either of the two courses he urged upon us other than by reference to the applicant’s age and the fact that since his detention he has not apparently attacked anyone else. 

23.  Both Drs Yuen and Chow upon whose advice the judge placed weight considered that an order for detention at Siu Lam Psychiatric Centre for an undefinite period was the appropriate course to deal with the applicant.  Both considered that his prognosis was uncertain.  They both considered that he remained a risk of further violent behaviour.  Both considered that in the fullness of time he might be suitable for transfer to the Castle Peak Mental Hospital.  In the case of Dr Yuen he felt that this possibility was sooner rather than later.  

24.  We were satisfied that there was no basis for interfering with orders made which Mr Andrews concedes were entirely proper. 

25.  The application was dismissed.