HKSAR v. YEUNG CHI TAK

CACC 278/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 278 OF 2016

(ON APPEAL FROM DCCC NO. 571 OF 2016)

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REASONS FOR JUDGMENT

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1.  The applicant sought leave to appeal against a sentence of a hospital order for an unspecified period imposed on him on 25 August 2016 by District Judge Casewell following his conviction on his pleas of guilty on 11 August 2016 to three charges of wounding with intent, contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212. The offences occurred in Yuen Long: the first offence on 23 December 2005 and the second and third offences on the same occasion on 8 March 2016. At the hearing, I refused the application for leave to appeal against sentence and said that I would give my reasons in due course. That, I do now.

2.  For purposes of assisting the Court only, the applicant was represented by Mr Bernard Yuen.  In advance of the hearing, Mr Yuen informed the Court by letter dated 16 December 2016 that, having considered the matter, he was unable to advance any grounds of appeal against sentence.

The facts

Charge 1

3.  At about 8:20 p.m. on 23 December 2015, the applicant joined Mr Chan Moon Chiu, who was an acquaintance, to sit on a bench outside the Association for senior citizens at Rainbow Mansion, 13 Yuen Long Tung Tai Street.  Although Mr Chan greeted the applicant, the latter made no reply.  Shortly afterwards, the applicant stood up and seized a cutter lying on the ground, which he used to cut Mr Chan’s arms and legs.  Mr Chan sustained a deep cut wound to the right forearm, a long cut wound to the right upper arm and a long cut wound to his right thigh, for which injuries he was treated at the Pok Oi Hospital.

Charges 2 and 3

4.  At about 11:45 a.m. on 8 March 2016, the applicant attacked two women with a cutter as they waited at traffic lights to cross Yuen Long On Ning Road.  He cut Ms Ng Fung Kwan’s neck and Ms Ng Chung Hing’s right arm.  Having fled from the scene of the attack, the applicant was observed by passers-by and eventually was arrested by a police officer at Long Ping Shopping Mall.  The applicant said under caution “The women had insulted me earlier that day and that was why I took out a cutter to cut them.  I dropped it on the streets.”

5.  Ms Ng Fung Kwan sustained a 10 cm laceration wound to the right side of her neck, whereas Ms Ng Chung Hing sustained a 5 cm superficial laceration to her right arm.

6.  In a video recorded interviews conducted under caution, the applicant said of the attack of 23 December 2015 that Mr Chan had used foul language towards him some 20 years earlier.  Of the attacks of 8 March 2016, the applicant said that some citizens whom he did not know had come to insult him.  He said he did not know the two women.

Mitigation and sentence

7.  On 11 August 2016, following the applicant’s pleas of guilty to the three charges, counsel representing the applicant informed the Court of the applicant’s history of psychiatric problems.  Clearly, the judge had before him the reports of Dr Chau Kit Wan and Dr Oliver Chan dated respectively 18 and 21 March 2016.  Those reports have been prepared following the orders of the magistrate, Ms Marinda Chan, on 10 March 2016.  At counsel’s invitation, the judge ordered the preparation of two psychiatric reports and adjourned the hearing.

8.  In sentencing the applicant, the judge referred the applicant’s personal particulars and his antecedents:

“ The defendant’s antecedents show he is aged 40. He had a conviction in 2002 for the offence of wounding or inflicting grievous bodily harm under section 19 of the same ordinance, and received a 3-week sentence of imprisonment. The antecedents statement briefly said the defendant was known as a psychiatric patient since 2002. He has family in Hong Kong and he has lived with them when he has not been in psychiatric centres.”

9.  Then, the judge referred to the material available to him as to the applicant’s psychiatric history, treatment and prognosis:

“ Initial psychiatric reports that were taken in the magistracy showed the defendant had been suffering from drug‑induced psychosis and schizophrenia and had violent tendencies, and he was remanded by that court to the Siu Lam Psychiatric Centre for treatment.”

10.  Next, the judge referred to the two reports provided by Dr Chow and Dr Chan, noting that “... they are comprehensive and have a common recommendation to the court.”  Of Dr Chow’s report, the judge noted that he said the applicant:

“ ...has a longstanding history of substance abuse. He has taken cough mixture for up to 20 years. He is a regular user of methamphetamine and also a recreational user of cannabis and hypnotics. Dr Chow tells us that Mr Yeung was known to the mental health services in 2002. He has been diagnosed to have schizophrenia and drug-induced psychosis, and this is accompanied with a violent history. He was last discharged from Castle Peak Hospital in 2014 for outpatient management. Mr Yeung has complained of persistent voices, auditory hallucination, in the past few years. He has persistent referential and paranoid belief people knew what he was thinking and were talking ill about him.”

11.  Further, the judge noted Dr Chow’s statements that, whilst detained at Siu Lam Psychiatric Clinic from March to August 2016, the applicant had been found to be “actively psychotic” and that “Despite medication adjustment...limited progress was observed in the last few months”.  Finally, the judge noted that Dr Chan said that the applicant still complained of active auditory hallucination, and that insight is said to be poor.

12.  Having noted that both doctors diagnosed the applicant as suffering from schizophrenia, with a background of substance abuse, the judge noted that they both expressed the opinion that “...a longer term of treatment and hospitalisation” was required.  The judge noted that Dr Chan said:

“ Therefore, in view of his current active psychotic state, poor insight, unpredictably high violent risks under psychotic influence and slow progress, a compulsory psychiatric treatment under a hospital order is indicated.”

13.  Then, having noted that both doctors recommended that the judge make a hospital order committing the applicant to Siu Lam Psychiatric Centre under section 45 of the Mental Health Ordinance, Cap. 136 for an unspecified period, the judge said:

“ It has been held by the court that it is proper for this court and can be proper for this court to issue a mental health order without any period being specified therein, and that should be the order unless the medical opinion of the psychiatric specialist who examined the defendant is to the effect that the patient can confidently be expected to be fit to be released within a specified period. If the doctors cannot express this degree of confidence, it is wiser, both in the interests of the patient and for the protection of the public, that the order should have no term attached to it.”

14.  In the result, having adverted to the fact that in making such an order the applicant would be subject to the review of the Mental Health Review Tribunal and having said that he had considered sections 45 to 47 of the Mental Health Ordinance, the judge determined:

“ I am satisfied that, having regard to all the circumstances, including the nature of the present offences, character and antecedents of the defendant and the other available methods of dealing with him, the most suitable method for disposing of the defendant in respect of these offences is by way of a hospital order.”

15.  Finally, noting that both doctors recommended that such an order be made for an unspecified period, the judge stipulated that he made an order to that effect.

Grounds of appeal against sentence

16.  In an attachment to Form XI, filed with the Court on 1 September 2016, the applicant set out his grounds of appeal against sentence.  He complained that it was inappropriate for the judge to have made a hospital order for an indefinite period.  He invited this court to quash the order and stipulate indefinite period of time for his detention pursuant to the hospital.

17.  The applicant asserted that the judge had found that he had not been provoked into committing the offence the subject of Charge 1.  He contended that, although the judge was not so informed, he had been provoked by Mr Chen referring in foul language to his mother.  Of Charges 2 and 3, he said that he had intended to hurt one person only.  Unexpectedly, he had struck both women.

The respondent’s submissions

18.  In his written submissions for the respondent, Mr Ira Lui submitted that the imposition of an hospital order without stipulation as to time was appropriate.  That order was in the interests of both the applicant and the public, who were afforded necessary protection.  The order was not made to punish the applicant.  Rather, it afforded him appropriate treatment.  The judge was correct to advert to the fact that the applicant will be subject to review by the Mental Health Review Tribunal.[1]

A consideration of the submissions

19.  It is clear that, in making the hospital order without stipulation as to time, the judge complied with the provisions of sections 45 to 47 of the Mental Health Ordinance.  It is to be noted that both doctors, who recommended the making of that order, had made reports on the applicant in March 2016, soon after his initial detention and Siu Lam Psychiatric Centre, and immediately before the imposition of the order in August 2016.  They were each of the view that the applicant’s response to treatment was unsatisfactory.  Similarly, both of them described the applicant as suffering from a current active psychotic state. Dr Chow expressed the opinion that in that condition, there was an unpredictably high risk of the applicant behaving violently.

20.  In those circumstances, there is no merit in the submission that the terms of the judge’s order were other than entirely appropriate.  As this Court noted of the Mental Health Review Tribunal in its judgment inHKSAR v Lin Jun, the applicant’s continued detention is subject to regular review.  In that judgment Tang VP, as Tang PJ was then, and McWalters J said of that applicant:[2]

“ Her detention will be kept under constant review. It would be reviewed annually by a panel of psychiatrist, who will consider when the applicant may safely be released. It is the job of the panel to ensure that no patient is detained for longer than is absolutely necessary.”

21.  Finally, it is to be noted that the judge made no specific determination that the applicant had not been provoked into making the first attack.  The Summary of Facts was silent as to the issue of provocation, albeit that clearly it was to be inferred from the description of the sequence of events that there was no provocation.

Conclusion

22.  For the reasons set out, I refused the application to appeal against sentence.  The applicant was advised of his right to renew his application to the full Court.