HKSAR v. WAN PAK SING

CACC 535/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 535 OF 2003

(ON APPEAL FROM DCCC 730 OF 2003)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1. On 13 November 2003, following a trial in the District Court before Judge Sweeney on a charge of wounding with intent, contrary to section 17(a) of the Offences against the Person Ordinance, Cap. 212, the applicant, aged about 75, was found not guilty by reason of insanity, pursuant to section 74 of the Criminal Procedure Ordinance, Cap. 221. The judge found, on a balance of probabilities, that the applicant was "labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing". The judge then adjourned the case for up-to-date psychiatric reports.

2. On 5 December 2003, the judge made an order that the applicant should be admitted to Siu Lam Psychiatric Centre for an unspecified time, being satisfied under section 76(2) of the Criminal Procedure Ordinance, on the evidence of two psychiatrists, that such a course was necessary in the applicant's interests as well as for the protection of the public.

3. The applicant originally sought leave to appeal against the judge's finding as well as the order that he should go to the Psychiatric Centre without limit of time. However, it has been made plain during these proceedings that his real complaint is that no time limit was given for the period he is to spend in Siu Lam Psychiatric Centre.

4. For the avoidance of any doubt, the findings reached by the judge in his Reasons for Verdict are not open to any criticism and the application in this regard is dismissed.

5. In short, the facts revealed that on 17 June 2003, without the slightest provocation, the applicant attacked a complete stranger in the street, firstly with an umbrella and then with a chopper. The victim, who happened to be a doctor of medicine who had just left his clinic, sustained serious injuries to his scalp and left hand. The judge aptly described this as an "horrific incident".

6. The applicant made no attempt to leave the scene after the attack and when the police arrived, he admitted that he had just chopped someone and asked the police to arrest him. He also kept telling the police that someone was going to kill him.

7. He was sent by the police to Siu Lam Psychiatric Centre where he was examined by two psychiatrists and found to have been "suffering from a chronic mental illness, namely delusional disorder". This disorder appeared to have set in gradually since 1984 when he received a setback in his attempts to publish some academic papers in Taiwan. Since then he developed fixed, paranoid or persecutory beliefs against the Taiwanese government. He was hospitalised in 1987 which was supposed to have been followed up by out-patient treatment. However, the applicant failed to attend for the out-patient treatment.

8. In the past ten to fifteen years, the applicant has apparently held the belief that while spies in Taiwan did not themselves dare to kill him, they had employed doctors to do harm to him. He attributed most of his physical problems to persecution from doctors he had attended. It seems, therefore, that the victim was deliberately chosen by the applicant as the target of his attack because he was a doctor, despite the fact that the victim had never treated the applicant as a patient.

The application

9. A number of homemade grounds for this application have been put before us. In summary, these are that one of the first reports provided by a psychiatrist only suggested a period of detention of four to six months and the applicant now considers that his mental condition has stabilised. According to the applicant, he is able to return to the family home and, with this in mind, he has requested that he be given a greater measure of leniency. He has also listed a number of physical problems with his health which have afflicted him over the years and has asked us to bear these in mind.

10. Mr Bernard Chung Wai-keung was instructed by the Director of Legal Aid to appear on the applicant's behalf in the event that we might need some assistance. He did not put forward any grounds of appeal.

11. The questions we have to ask ourselves are, firstly, whether the order made by the judge was a proper one and secondly, if it was, whether the situation has materially altered since then.

12. It is true that Dr Lui Sing-heung, in a psychiatric report dated 30 June 2003, at first recommended a hospital order for a duration of four to six months. However, on 24 November 2003, Dr Lui recommended, in a further report, that the applicant should be admitted without the indication of a limit of time. This view was supported by Dr Choi Wing-kit who had described the applicant as suffering from a "longstanding and persistent psychotic disorder, namely delusional disorder". He said also that the applicant had poor insight into his condition and a history of "acting out his beliefs in (a) violent way". In Dr Choi's report, dated 2 December 2003, he referred again to the "prominent risk" that the applicant would act out his delusions using violent means.

13. The situation confronting the judge required the approach which is set out in Tsui Chung-leung v R [1977-1979] HKC 419 at 420, where Roberts CJ said:

"In our view, it is proper for a court to issue a mental health order without any period being specified therein, unless the medical opinion of psychiatric specialists who have examined the patient is to the effect that the patient can confidently be expected to be fit for release 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. It will then be for the doctors in charge of the patient to recommend his release to the Governor at the appropriate time."

14. We are in no doubt that the order made by the judge in the present case was a proper one.

15. Turning to the stage which the case has now reached, we are grateful to Ms Mary Sin who, on the respondent's behalf, has produced two helpful decisions to this court for our consideration. It is plain that any person who is subject to a hospital order which is indeterminate will be able to have his situation reviewed annually by a panel of psychiatrists who will consider when he may safely be released back into the community (see: R v Kong Sing-ping, CACC 34/1992). The mandate of the panel is to ensure that no patient is detained for a period longer than is absolutely necessary (see: R v Chung Chi-kwong, CACC 585/1994).

16. While it is, of course, always open to this court to review the situation, in the absence of any recommendation by a psychiatrist for a patient's release or for a specific period of detention, we consider that the mere claim by a patient in the applicant's position to be feeling better because of an improvement in his condition should not in itself be regarded as a ground for interference with such an order.

17. As a precaution, therefore, we have procured an up-to-date psychiatric report from Dr Choi Wing-kit which confirms that there has been no change in the applicant's condition.

18. The other physical ailments suffered by the applicant, including a possible recurrence of bladder cancer, will be dealt with while he is under the care of doctors at Siu Lam Psychiatric Centre.

19. There are no grounds, we are satisfied, for interfering with the order which has been made.

Conclusion

20. Accordingly, this application is dismissed.