HKSAR v. NG KAM WAH

HCMA 213/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 213 OF 2000

(ON APPEAL FROM KTCC 3216/1999)

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J U D G M E N T

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1. The appellant pleaded guilty to one charge of using a false instrument and another charge of making false representations when seeking legal aid. After considering two psychiatric reports and a probation officer's report, the magistrate sentenced him to four months imprisonment for the first charge and two months for the second charge, both sentences are to run concurrently. After serving about half of his term, he was given bail pending appeal against sentence.

2. The appellant was an Assistant Hawker Control Officer. His wife is a worker employed by the Hospital Authority. They own a private flat. The appellant had been convicted after trial of theft of 67 ball pens in a supermarket for which he was fined $2,500. He applied for legal aid to prosecute his appeal against that conviction. In his legal aid application, he misrepresented that he was a garment worker earning about $9,000 a month, that his wife was a housewife with no income and that they had no interest in any landed property (2nd charge). He produced a rental receipt as proof that the flat he owned was in fact rented by him (1st charge). His legal aid application was refused. His appeal against conviction was also dismissed. Upon discovery of his misrepresentation, he was charged with the present offences.

3. The appellant has a history of mental illness and had received psychiatric treatment since 1986. He was voluntarily admitted to Pamela Youde Nethersole Eastern Hospital on 8 November 1999 and was diagnosed to be suffering from anxiety and depression. The psychiatric reports confirmed that his criminal offence was not related to his mental illness. The probation officer did not recommend probation or community service.

4. Having read the facts of the case, the two psychiatric reports, the probation officer's report and what was said in mitigation, I am fully satisfied that the sentence was a most proper sentence and that the magistrate has taken into account all relevant considerations known to him at the time.

5. Ms Draycott who appeared for the appellant did not dispute that the sentence was an appropriate one in a normal case. However, she submitted that in the present case, the magistrate was unaware firstly, that at the time of the offences the appellant's mother was terminally ill which aggravated the appellant's psychiatric condition and secondly that the appellant's older son is autistic and demands continual patience, support and understanding which was an additional burden to the appellant when he himself was mentally fragile. I do not think the first element an important one as the offences were committed nine months before his mother died. If it were of any significance, the appellant would have and should have volunteered the information to the probation officer or his counsel. It is, however, relevant in a separate context.

6. As for the mental condition of the son, the probation officer has reported that he was mentally handicapped and often had quarrels and fighting with the appellant. While this may show that the appellant was at the time being subjected to added mental burden, I do not think that has much significance in relation to offences of this nature.

7. The probation officer reported that the child was able to study Form 5 in a normal school. However, Ms Draycott produced a psychiatric report dated 30 March 2000 from the United Christian Hospital on the son. The report certifies that the son is suffering from childhood autism with impaired intellectual functioning ranging from borderline intelligence to mild grade mental retardation. He has severe language disorder and is hyperactive. He exhibits separation anxiety from the mother. With that background, Ms Draycott submitted that the child was very attached to the appellant's mother and has now become very attached to the appellant. He suffered emotionally with the grandmother's death in October 1999 and then the appellant's incarceration in January 2000. The appellant was granted bail pending this appeal, putting him in custody again now will cause the child yet another emotional disturbance, perhaps one too many in six months.

8. Furthermore, the appellant has a long history of psychiatric illness which could not have been made up for the purpose of this appeal or for the sentencing in the court below. I am sure these proceedings have brought him tremendous pressure, especially in view of his fragile mental condition. This is well reflected through the words of his wife in the probation officer's report. The wife related that the appellant jumped from height and screamed at home and that he sprayed insecticide on her face and on their meal. He has effectively served half of his sentence. In all the circumstances and particularly the condition of the child, I consider there are humanitarian grounds to reduce his sentence. I therefore allow his appeal to the extent that the remaining term of his sentence be suspended for 18 months.