HKSAR v. LEE SIU TAI

HCMA1257/2001 and
HCMA1283/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 1257 AND 1283 OF 2001

(ON APPEAL FROM WSCC 10469, KCCC 1865

AND SPCC 2363 OF 2001)

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(HEARD TOGETHER)

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REASONS FOR JUDGMENT

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1. These are my reasons for :

(1) allowing the appellant's appeal against his sentence of 15 months' imprisonment for the offence of assault occasioning actual bodily harm and substituting it with a three-month Hospital Order in HCMA1257/2001 (the first appeal); and

(2) dismissing the appellant's appeal against a sentence of a three-month Hospital Order for the offence of handling stolen goods in HCMA1283/2001 (the second appeal).

2. On 30 October 2001, the appellant was convicted of the offence of handling stolen goods by a magistrate sitting in the Kowloon City Magistracy. Pursuant to section 45 of the Mental Health Ordinance, Cap.136, the learned magistrate, by way of sentence, imposed a Hospital Order for a period of three months. The appellant lodged an appeal against the Hospital Order.

3. At the time when the Hospital Order was imposed, the appellant was the subject matter of a Probation Order imposed earlier under magistracy case no. SPCC 2363/2001. The learned magistrate saw fit to discharge the Probation Order and imposed a concurrent three-month Hospital Order. There is, however, no appeal against the subsequent Hospital Order under case no. SPCC 2363/2001.

4. A week later, the appellant went before another magistrate sitting at the Western Magistracy this time charged with the offence of assault occasioning actual bodily harm. He was found guilty after trial and was sentenced to 15 months' imprisonment on 6 November 2001. The appellant also appeals against this sentence.

5. Both appeals came before me on 21 December 2001. The appellant was represented by Mr Eric Kwok of counsel on the instruction of the Director of Legal Aid. Mr Kwok did not appear for the appellant in the proceedings in the Magistracy.

6. The thrust of Mr Kwok's appeal against the sentence of 15 months' imprisonment in the first appeal is that the term imposed was manifestly excessive and the magistrate had considered matters as aggravating factors which should otherwise be irrelevant. Mr Kwok contended the magistrate should have imposed a Hospital Order in view of the history of mental illness of the appellant.

7. At the commencement of this appeal, Mr Cheung for the respondent readily conceded that the sentence of imprisonment was wrong in principle. He drew the court's attention to section 45(3) of the Mental Health Ordinance which provides :

" (3) Where a hospital order has been made, the court or magistrate shall not impose a sentence of imprisonment or a fine or make a probation order in respect of the offence but may make any other order which the court or magistrate has power to make apart from this section and for the purpose of this subsection 'sentence of imprisonment' (監禁刑罰) includes any sentence or order for detention in a remand home, a reformatory school, a house of detention or a training centre."

8. It is therefore clear from the wording of the section that in respect of a single offence, the court cannot impose a sentence of imprisonment in addition to a Hospital Order. The position is however less clear in a case involving multiple offences committed by a single defendant as in the present case. I have not been able to find any Hong Kong authorities on this point.

9. A similar issue was raised before the Court of Criminal Appeal of Northern Ireland in R. v. Patterson [1970] N.I.8. In that case, the appellant Patterson pleaded guilty to seven counts in an indictment involving offences of dishonesty, violence and criminal damage. A Hospital Order under section 48 of the Mental Health Act (Northern Ireland), 1961 was made in respect of the first six counts and a sentence of three months' imprisonment was imposed in respect of the seventh count.

10. One of the grounds of appeal in that case was that a Hospital Order and a sentence of imprisonment cannot properly be given by the same court for the offences of which the appellant was convicted. That, it was contended, was in contravention of the provisions of section 48(5) of the Mental Health Act (Northern Ireland), 1961. There is no material difference between the wording of section 48(5) of the Irish Act and section 45(3) of the Mental Health Ordinance cited above. Their Lordships however did not decide the appeal on the true construction of section 48(5) but allowed the appeal on the ground that there was no sufficient medical evidence before the judge in the court below to enable him to make the Hospital Order. Lord MacDermott LCJ observed in obiter :

"... In the case of a series of offences a literal reading of the subsection which seem to permit of the making of a hospital order in respect of some offences and the imposing of a term of imprisonment in respect of the others. ... but even if such admixture of sentences were valid, it could only be justified in the most exceptional circumstances."

11. The Patterson case was not cited to the learned magistrate when he passed sentence and the issue of exceptional circumstances was therefore never addressed. The fact remains, the two offences were committed by the appellant within one month of each other. It would be safe to assume, based on the two psychiatric reports, that the appellant was suffering from schizophrenia at the time. Further, at the time when the sentence of imprisonment was imposed, the learned magistrate had no power to direct that a sentence should run from a date other than that upon which it is passed. The result is such that the prison term and the Hospital Order would necessarily be concurrent. The problem thus created was this : the appellant faced the physical impossibility of being detained in a mental hospital as well as a prison at the same time. One option that was opened to the magistrate when passing the sentence of imprisonment, was for him to make a recommendation that the appellant is to obtain treatment in a mental institution (see R. v. Lam Yuet Siu, Crim. App. 238 of 1993). But no such recommendation was made. The situation is further complicated by the fact that there is no appeal against the Hospital Order in case no. SPCC 2363/2001. The appellant must therefore serve out his term under the Hospital Order imposed in the latter case.

12. The reasons stated by the learned magistrate for passing the prison sentence can be found at page 10 of the transcript. He was aware that the appellant had been ordered to be detained in the Siu Lam Psychiatric Centre under a Hospital Order imposed earlier. He was however of the view that the three-month in a mental institution was a "wholly inadequate way" of dealing with the offence of assault occasioning actual bodily harm for which the appellant was convicted. He assessed the appropriate length of imprisonment to be one of fifteen months and he made specific reference to section 52 of the Mental Health Ordinance which provides the removal to a mental hospital of a person serving a sentence of imprisonment. The relevant section reads :

" (1) If the Chief Executive is satisfied from the report of a medical officer that a person who is serving a sentence of imprisonment is a mentally disordered person and that the nature or degree of the mental disorder from which he is suffering warrants his detention in a mental hospital for treatment, the Chief Executive may, by transfer order, direct that the person be removed to and detained in such mental hospital as is specified in the order."

Hence, the magistrate said at page 11 of the transcript :

"... The authorities may, if it is deemed appropriate, order your transfer to a mental institution for such period as is necessary under section 52 of the Mental Health Ordinance, Chapter 136, and then you can be transferred back into custody of the Correctional Services Department in prison once any treatment that you have received is completed."

13. The magistrate clearly recognises the need for treatment of the appellant's mental illness. What appear to have been troubling him was that the three-month term recommended by the psychiatrists in their reports did not seem to reflect the gravity of the offence for which the appellant was convicted. By this line of reasoning, the magistrate was not addressing the issue of propriety of sentence sufficiently. In passing the prison sentence as he did, he was derogating his duties to the medical officer in the hope that the medical officer, whoever he might be, would make a report to the Chief Executive who in turn may issue a Transfer Order directing that the appellant be removed to be detained in a mental hospital. In my view, the section covers only the situation where a prisoner, while serving a term of imprisonment, is found to be suffering from mental illness the severity of which warrants a Transfer Order by the Chief Executive.

14. Following the case of R. v. Lam Yuet Siu [1993] 2 HKC, there were three sentencing options opened to the magistrate when he imposed his sentence. Firstly, he could have passed the sentence of 15 months' imprisonment with a recommendation that the appellant should obtain treatment in a mental institution. The second option opened to him would be that he could imposed a Hospital Order without specifying a time limit. Based on the magistrate's perception of the appellant as having a history of recurrent violent behaviour, this could have been the appropriate order to make although the Lam case suggests that an open-ended Hospital Order should only be reserved for the gravest of offences. The third option was for the magistrate to give due regard to the two psychiatric reports available before him at the time and adopted the recommendations by the two doctors and pass a three-month Hospital Order.

15. Based on the reports by Dr C.H. Yuen dated 26 October 2001 and Dr Lam Chi Leung dated 29 October 2001, both doctors were of the view that the appellant is suffering from schizophrenia with personality deterioration. Moreover, he has poor insight of his illness and is prom to aggressive behaviour. Such condition clearly required treatment as an inpatient and it was so recommended. This is a case where the appellant's behaviour was attributable to his mental illness and he should therefore be given every opportunity for treatment of his illness. One must not loose sight of the possibility that at the expiration of the three-month Hospital Order, if the appellant's mental condition is such that he has not sufficiently recovered for discharge then by virtue of section 36 of the Mental Health Ordinance, he may still be liable for detention for further treatment by certification.

16. I have considered the provisions under section 45(1)(c) of the Mental Health Ordinance and based on the recommendation of the psychiatric reports by Dr Yuen and Dr Lam dated 26 and 29 October respectively, I am of the view that a three-month Hospital Order is the appropriate sentence for the offence of assault occasioning actual bodily harm. The appeal against sentence in the first appeal is allowed to the extent that the 15-month imprisonment is set aside and to be substituted by a three-month Hospital Order.

17. Having heard the court's decision on the first appeal, Mr Kwok informed the court that he no longer wished to pursue the appeal against sentence in the second appeal. Accordingly, the appeal against sentence in HCMA1283/2001 is dismissed.