HKSAR v. WONG PAK SHING

HCMA 837/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 837 OF 2002

(ON APPEAL FROM ESCC 1403/2002)

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J U D G M E N T

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1. This is an appeal against sentence.

2. On 26 July 2002 in the Magistrate's Court at Eastern, the Appellant was convicted by Ms Adriana Ching on the two charges which he faced, namely attempted theft and assaulting a police officer in the due execution of his duty. On 9 August 2002, the Magistrate sentenced the Appellant to a total of 21 months' imprisonment. That total was made up of 18 months for the attempted theft and 6 months for the assault, 3 months of which was to run concurrently with the 18 months for the attempted theft.

3. The following perfected grounds of appeal against sentence had been filed on the Appellant's behalf:

"(1) The Learned Magistrate failed to give any consideration or sufficient consideration to a mental condition of the applicant in the assessment of sentence.

(2) The Learned Magistrate failed to obtain psychological and psychiatric reports concerning the applicant's mental condition for consideration in sentence.

(3) The starting point adopted by the Learned Magistrate for charges 1 and 2 was high in the circumstances of the case in that she failed to give sufficient consideration for the applicant's mental condition at the time when he committed the offence.

(4) The sentence imposed for both charges was excessive and severe."

4. Psychiatric evidence had been called on the Appellant's behalf on the issue of conviction. As to this evidence, the Magistrate said this in her Statement of Findings:

"38. DW1 is a psychiatrist. The Appellant consulted him on 9 February 2002, i.e. after his arrest. He told me that the Appellant was suffering from adjustment disorder. The symptoms included low mood, insomnia, loss of appetite, weight loss, negative thinking and worries about his family and the present case. He said that this condition would affect the Appellant's judgment. Under cross-examination, the doctor said that the Appellant's judgment would be affected in that his thought process would be slower than normal but he could distinguish between right and wrong.

39. DW1 also told me that his diagnosis of the Appellant was subsequently changed to depression. The symptoms were basically unchanged. He only changed this diagnosis because the Appellant should have shown some improvement after follow up treatment if he were suffering from adjustment disorder. The Appellant's symptoms had remained unchanged. He continued to be worried about his financial situation and the present case. I am not surprised that there was no improvement. This case had not yet been concluded and the concern is still present.

40. I have considered the evidence very carefully. Even after taking DW1's evidence into account, the evidence of the Appellant was ludicrous. I found him to be totally dishonest, incredible and unreliable. I reject his evidence."

5. After the Magistrate had convicted the Appellant and before she sentenced him, his counsel invited the Magistrate to send for psychiatric and psychological reports. This exchange between the Magistrate and defence counsel then took place:

"Court: I've already got the evidence from your expert.

Mr Yeung: There's evidence from him, yes.

Court: Yes, and it's not it wasn't challenged.

Mr Yeung: It is not challenged but your Worship, indeed I am facing a dilemma because both the defendant and his family, it's their desire that psychiatric treatment can be rendered to the defendant but I understand that I advised them that but they still insist that I ask for these reports before sentence. So I'm duty-bound to do so, your Worship.

Court: Anything else?

Mr Yeung: Yes, I urge your Worship to do so because it is very unlikely that a person of the defendant's background, having lived on honest life so many years suddenly committed these two offences within such a relatively short period of time, just two years. It is very likely that the defendant needs treatment of some sort which might help him and his family.

Court: Yes, anything else?

Mr Yeung: Nothing else. I am very grateful."

6. In the result, the Magistrate did not send for any report other than a background report from a Probation Officer. The Magistrate says nothing in her Reasons for Sentence about any psychiatric or psychological factor apart from those found in paragraphs 44 and 45 thereof. In paragraph 44 this appears:

"The Appellant's wife is a mental patient. She has also been diagnosed with depression."

In paragraph 45 this appears:

"The Appellant's counsel urged me to accept that the Appellant was suffering from some kind of disease. The sister has offered to accompany the Appellant after the offences in 2000. She also urged the Appellant to consult a psychiatrist after he was arrested in this case."

As can be seen, the Magistrate does not say whether she accepted that the Appellant was suffering from any psychiatric or psychological disorder. Certainly she does not indicate that she took any such disorder into account when sentencing the Appellant.

7. This appeal came on before Deputy High Court Judge Wong (then Justice of Appeal) on 5 December 2002. What the Deputy Judge did appear from this note which he made:

"Adjourned for psychiatric reports from 2 Government psychiatrists and also psychological report to find out if appellant is suffering from mental illness and whether he requires psychiatric treatment. New date to be fixed. (Not part heard)"

8. Pursuant to that order, there has been placed before this court three reports. One is a psychiatric report dated 30 December 2002 prepared by Dr SUNG Wing-kuen who is a Visiting Psychiatrist at the Siu Lam Psychiatric Centre. Another is a psychiatric report also of that date prepared by another Visiting Psychiatrist at that Centre, Dr CHOI Wing-kit. Yet another is a psychological report dated 24 December 2002 prepared by Ms Sarina Lam, a Clinical Psychologist with the Correctional Services Department.

9. Dr Sung says this:

"In my opinion, the defendant is recently suffering from Depressive episode that warrants psychiatric treatment. Currently, his mood improves partially after a period of treatment. Psychiatric in-patient treatment is not indicated. Furthermore, his insight and social support is considered to be good and inadequate. He could receive further psychiatric treatment and counseling at an outpatient clinic."

10. Dr Choi says this:

"In my opinion, WONG has history of Depressive Disorder that requiring psychiatric follow-up and treatment. His current condition is stable, and inpatient treatment is thus not required. Outpatient psychiatric follow-up is recommended."

11. Ms Lam says this:

"Mr Wong was impressed to be socially passive with low self-esteem. As he experienced a series of life stress (unemployment, wife's depression and parenting problem) since his forty's, he started to suffer from Depression with persistent low mood, insomnia, inattentiveness and suicidal ideation. Mr Wong expressed some motivation to better manage his mood. Psychological follow-up is recommended to him."

12. Counsel for the Appellant has cited a number of authorities. In HKSAR v. Chiu Peng Richard [2002] 1 HKC 401, Woo JA said this at pages 406 F-407A when giving the judgment of the Court of Appeal:

"16. If an accused is suffering from mental illness which plays a part in the commission of the offence, the court may properly allow a discount of sentence. See Cross and Cheung: Sentencing in Hong Kong (3rd Ed) pp 308-309 and the cases cited thereat. The reasoning was described as 'allowing a diminished role for the element of deterrence to reflect the mental condition' in Parnis v. R (1994) 126 ALR 423, 426. That, as we understand, means that while the sentence normally imposed by the court is for deterring an accused unaffected by any abnormal mental condition in the commission of the offence and for general deterrence, and necessity for both kinds of deterrence is reduced because the accused was not operating under a normal mental condition. While this reason has its attraction, we prefer to lay emphasis on the justification for a discount of sentence, in these circumstances as a reflection of diminished criminality or culpability on the part of the accused who had committed a crime under an abnormal state of mind. He knew that it was wrong to commit the crime, but he did not appreciate that the commission was as serious as it was: the degree of culpability was thus lessened. Or, as in this case, the accused's mental illness made him gullible and easily susceptible to persuasion by the perpetrator of the crime, reducing his reasonability for participating."

13. It is impossible to say precisely what effect the Magistrate would have given to the psychiatric or psychological evidence if she had the benefit of the same. Doing the best I can, I think that she would probably not have treated the Appellant's culpability as aggravated (as she did treat it) and might well even have given him some discount from the norm.

14. Giving some discount would have been reasonable. What I propose to do in all the circumstances is to allow the appeal against sentence by reducing the term for attempted theft to 14 months' imprisonment, reducing the term for assault to 4 months' imprisonment and making one month of it consecutive with the 14 months for attempted theft. The resultant total is 15 months' imprisonment. So the appeal is allowed to reduced the Appellant's total sentence from 21 months' imprisonment to a total sentence of 15 months' imprisonment.