HKSAR v. FAN WAI KONG

CACC475/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.475 OF 2004

(ON APPEAL FROM DCCC NO.968 OF 2004)

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J U D G M E N T

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

1. On 29 October 2004, the applicant was sentenced to an indeterminate hospital order at Siu Lam Psychiatric Centre pursuant to section 45 of the Mental Health Ordinance, Cap. 136 by His Honour Judge Line.

2. The applicant, on 16 October, had pleaded guilty to an offence of wounding contrary to section 17 of the Offences Against Person Ordinance, Cap. 212.  On 4 August 2004, he had inflicted a vicious and unprovoked attack on his victim with a chopper.  For no apparent reason, and in broad daylight, he inflicted a deep chop wound on the victim’s neck, breaking a bone in his neck.  He inflicted another fierce blow on his head.  Such an attack could have killed the victim.

3. The applicant, both at the time and for many years previously, had suffered from a mental disorder, schizophrenia, and he was known to the mental health service.

4. The learned judge had considered, as he was required to do, two medical reports.  Both reports said that the applicant needed in - patient treatment.  Both reports said that the usual period of nine months would not provide enough time to treat him or cure him.

5. On the advice of counsel no perfected grounds of appeal have been filed in this case.  Mr Alex Ng however has been instructed by the Legal Aid Department to protect the applicant’s interests and to assist the court, if necessary, in the light of the applicant’s mental condition.

6. In the applicant’s own written letter to the court, he simply stated, and he has repeated orally to us today that :

“I am of the view that Your Lordship shall give me a chance by imposing a date for my discharge, so that I don’t have to worry about when I can leave the centre.”

7. The only issue therefore on appeal is whether the learned judge should have imposed a fixed period, which is usually nine months’ detention under the Mental Health Ordinance or an indeterminate sentence.

8. We have been referred by Mr David Leung who appears on behalf of the respondent, in his written submission, to a number of Hong Kong cases in which this issue has been considered.  In all such cases the key issues are the interests of the applicant and the protection of the public.

9. In this case, where the applicant’s mental condition caused him to behave in such a violent and dangerous way and where two doctors have said that the usual period of nine months would be insufficient to cure him, it was entirely proper to pass an indeterminate sentence.  Had a fixed sentence of nine months been passed it would have been a virtual certainty that another application to keep him in custody would have had to be made in nine months’ time.

10. A much more sensible approach, and more in the applicant’s and the public’s interests, was the one adopted by the learned judge.  The present position is that the applicant’s mental condition will be under review on a regular basis.  He will get constant treatment for his disorder.  Mr Ng has informed the court this morning that the applicant believes that he is now cured.  Needless to say, that is a matter for the medical profession to decide and not for him to decide.  If and when, within the provisions of the Mental Health Ordinance, he is no longer a risk to the public and it is safe to release him, he will be granted his liberty. 

11. The learned judge concluded his reasons for sentence by assuring the applicant that the order being imposed was not to punish him.  We wish to reiterate that observation.

12. The application for leave to appeal is dismissed.