R. v. TSO SIU YEUNG

1996, NO. MA 1357

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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REASONS FOR JUDGMENT

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1. The applicant, TSO Siu-yeung, pleaded guilty to a charge of Possession of an offensive weapon, contrary to section 33(1) of the Public Order Ordinance. He was sentenced to a term of three years' imprisonment which is the maximum sentencing power under the law.

2. The facts of the case indicate that the applicant was spotted to act in a furtive manner in the street, in the early morning on 6 March 1996. He was stopped and searched and a 30 centimetre long knife was found concealed at the rear waistband of the applicant.

3. Upon being questioned, the applicant stated that he intended to use the knife on a person by the name of Sai Sor. He subsequently alleged that Sai Sor had used his identity card that he had lost and demanded a sum of $200 from him. When he refused to pay this sum of $200 to Sai Sor, he was assaulted by him.

4. The applicant claimed that he had reported the loss of his identity card to the police, but a subsequent checking by the police at the relevant police station indicated that no such report had been made. It appears not to be in dispute that at the material time, the applicant was in fact, suffering from mental disorder and the learned magistrate therefore called for certain reports before sentencing.

5. Those reports confirmed the suggestion that the applicant was in fact suffering from chronic schizophrenia, and, according to the doctor, his condition was in fact deteriorating. One of the reports suggest that a hospital order under section 45 of the Mental Health Ordinance for less than two years should be made.

6. The learned magistrate, in my view, comes to a correct decision that he was not entitled to make a hospital order for an offence under section 33(1) of the Public Order Ordinance. However, the learned magistrate concluded that his duty to protect the public was of paramount importance and he believed that the applicant to be a considerable danger to the public and hence, he imposed a maximum term of three years' imprisonment, giving no credit at all to his pleading guilty and he also perhaps did not take into consideration that the offence in question might not be the worst of its kind.

7. I appreciate the anxiety on the part of the learned magistrate to protect the interests of the public, but by sentencing the applicant to the maximum term of three years' imprisonment in the circumstances of the present case is to impose additional sentence on him, not by reason of his criminality in the offence, but by reason of his mental illness which I think is wrong in principle.

8. If an offender requires some form of treatment as an

in-patient or otherwise, such treatment could be imposed at the appropriate stage. But in my view, it is not proper for the court to increase the sentence of an offender by reason of his mental illness.

9. I take into consideration that there will be available and necessary treatment for the applicant in jail. I also take into consideration that when he is released, and is found to still be suffering from his mental illness and therefore pose a danger to the public, there are other available remedies so that he can receive further treatment under the Mental Health Ordinance. I am sure, should that happen, proper application will be made for his own interests and the interests of society that he should receive further treatment.

10. In the light of my observation about the error made by the learned magistrate, by punishing the applicant by reason of his illness rather than the crime that he committed, the appeal against sentence must be allowed. I take into consideration the nature of the offence, the background of this case and the record of the applicant, I note counsel for the applicant's observation that the last time the applicant committed an offence of a violent nature was indeed a long time ago.

11. I am of the view that a starting point of 12 months' imprisonment will be appropriate. Bearing in mind the applicant's pleading guilty to the charge, the sentence I think, should be reduced to one of 8 months' imprisonment. The appeal against sentence is therefore allowed. The sentence of 3 years' imprisonment is quashed and in substitution thereof a period of 8 months' imprisonment.