HKSAR v. CHAN CHI KWAN

CACC 470/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 470 OF 1999

(ON APPEAL FROM HCCC 168/1999)

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. On 6 August 1999, the applicant pleaded guilty before Deputy Judge L. Tong in the Court of First Instance to one charge of causing grievous bodily harm with intent. The Judge made a hospital order that the applicant be detained in Siu Lam Psychiatric Centre for an unspecified period. The applicant now applies for leave to appeal against that order.

2. The admitted facts of the case are these. On the morning of 27 November 1998, the victim was standing on the platform of the Kowloon Tong MTR station waiting for the Quarry Bay bound train. As the train approached the platform, the applicant rushed towards the victim and with both hands, he deliberately pushed the victim onto the path of the oncoming train. The train struck the victim and seriously injured him. The victim's right leg below his knee was severed by the train. His left knee and scalp were also injured. Though the victim subsequently recovered, his right limb had to be fitted with a standard prosthesis to enable him to walk and there is a moderate possibility of early degenerative arthritis of the left knee because of the injury to it.

3. The applicant admitted to the police that he had pushed the victim onto the track of the oncoming train. He told the police that at the material time he was going to seek assistance from the Social Welfare Department to obtain treatment from a psychiatrist.

4. The Judge before sentencing, had called for psychiatric reports. Dr Lui Sing-heung in his report dated 13 August 1999 stated that the applicant suffered "not only delusions and thought disorder from mental illness, but also a marked disintegration of the personality as well, with much impairment of judgement, emotions and volition". His opinion was that the applicant was far from recovered from the mental illness of schizophrenia and there was no telling whether or when he will recover. He recommended detention in Siu Lam Psychiatric Centre for an unspecified period.

5. Dr Ng Fung-shing in his report of the same date, stated that the applicant was diagnosed to suffer from schizophrenia and had been on anti-psychotic medication since 17 December 1998. Dr Ng was of the opinion that the applicant harboured persistent psychotic symptoms despite the treatment he had been receiving. He also recommended detention in Siu Lam Psychiatric Centre for an unspecified period.

6. Having considered all the circumstances of the case and on the basis of the experts' recommendations, the Judge made the hospital order he made.

7. The applicant's ground of appeal is that he considered the sentence too long and this morning he said that since the victim is living now healthily and comparing it with his behaviour, he should deserve a more lenient sentence.

8. When the applicant appeared before this court on 12 April 2000, there was no updated psychiatric report on the applicant's current mental condition. In view of the time lapse since he was sentenced, we adjourned the hearing of the application for an updated psychiatric report on the applicant. We have now the updated report from Dr Lui who had been treating the applicant in Siu Lam Psychiatric Centre since November 1998. Dr Lui stated in his latest report that there had been little improvement in the applicant's mental condition in the past eight months. The following is his opinion:

"CHAN is not recovered from schizophrenia, a chronic relapsing mental illness. Hospital treatment is necessary given his lack of insight. As there is no telling whether or when CHAN will improve sufficiently to be discharged, the decision to release him should, in my view, depend on progress and best rested with the Mental Health Review Tribunal (Section 59E, Mental Health Ordinance)."

9. Undoubtedly the applicant was suffering from a mental illness at the time of the offence and has not sufficiently recovered for him to be safely discharged from the Psychiatric Centre. Having regard to the applicant's mental condition, the applicant was rightly regarded by the Judge as a danger and threat to the safety of the community at large and should be detained in Siu Lam Psychiatric Centre for an unspecified period. We have no reason to disturb that order made by the Judge and it would be for the Mental Health Review Tribunal to determine when he can be safely released. The application is dismissed.