HKSAR v. CHIU YU TO

CACC 104/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 104 OF 2000

(ON APPEAL FROM DCCC 1112 OF 1999)

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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):

Introduction

1. On 25 January 2000, the Applicant pleaded guilty in the District Court before Judge Wright to a charge of robbery. The judge adjourned sentencing to 14 February 2000 for a psychiatric report to be prepared in the light of the mitigation which had been advanced.

2. A report written by Dr F.S. Ng was duly presented to the court on 14 February 2000. This indicated that the Applicant was suffering from paranoid schizophrenia and that inpatient treatment was not considered necessary at that stage. Nonetheless, the judge very sensibly further adjourned sentencing until 7 March 2000 in order to consider making a hospital order. For this purpose, a second report was required. This was duly provided by Dr L.P. Choi.

3. By 7 March 2000, Dr Ng had changed his mind about inpatient treatment not being required and, in a further report, he recommended that a hospital order of between four to six months in duration should be made. Dr Choi's report made the same recommendation.

4. In the event, the judge decided not to act upon the psychiatrists' recommendations. Instead, he sentenced the Applicant to four years' imprisonment, having discounted a starting point of six years by one-third to take into account the Applicant's plea and general cooperation.

5. The Applicant now seeks leave to appeal against his sentence.

Prosecution's case

6. The case for the prosecution was straightforward although the offence might have been better described in its real effect as an attempted robbery. In brief, although we will need later to turn to other details, the Applicant visited a doctor in his consultation room on 4 October 1999 and, while there, he robbed the doctor at knife-point. When the doctor produced $800, the Applicant refused to accept the money and demanded more.

7. The Applicant was arrested at the scene by police. They had been informed about the offence by one of the doctor's staff while it was being committed. The Applicant admitted what he had done and gave as his reason that he was unemployed and short of money. Later that day, in a video-recorded interview, the Applicant gave the same account. He made no mention to police that he had been suffering from any mental problems.

Judge's sentencing remarks

8. The judge, when passing sentence in the light of the psychiatric evidence before him, expressed the opinion that the "familiar" pattern of the robbery involved no suggestion of psychiatric illness on the part of the Applicant until a Dr Lam was consulted on 15 November 1999, about six weeks after the robbery. Dr Lam, whose report is set out in some detail in the judge's sentencing remarks, had been told by the Applicant that he had been hallucinating since September 1999. However, most of Dr Lam's report was, as the judge commented, concerned with events since the commission of the offence. Dr Lam's report concluded with the opinion that long-term treatment was required although hospitalisation was unnecessary.

9. The judge then summarised the history of the proceedings and referred to the reports prepared by Dr Ng and Dr Choi. The judge set out the terms of section 45(1)(c) of the Mental Health Ordinance, Cap. 136, ("the Ordinance") to which we shall turn in more detail later. He was plainly aware of the discretion which was vested in him to make a hospital order if he decided that such a course was the most suitable method of disposing of the case.

10. As to the Applicant's general background, the judge described him as a forty-one-year-old unmarried man with an "unremarkable" history. He had one recent previous conviction for assault in September 1998. One other relevant factor was that late in 1998, following a road accident in China, he had become unemployed which, as the judge remarked, would have accounted for the Applicant's shortage of money.

11. Taking into account the psychiatric reports before him, the judge said:

"The submission has understandably and quite properly been made to me that if the accused is imprisoned then there may be some concern as to his future treatment. There are adequate provisions under the Mental Health Ordinance for a person serving a period of imprisonment to receive specialist treatment for psychiatric problems. They may be transferred to mental hospitals or to the Correctional Services Department's own facilities. Certainly it is the experience of this court that good medical facilities exist within the Department.

Taking into account the contents of all the reports as well as the mitigation and the personal circumstances of the accused, and the offence, I cannot say that it seems to me that the most suitable method of disposing of the case is by means of a hospital order.

The most suitable method seems to be to impose a proper sentence, which is one of a term of imprisonment, but to invite to the attention of Correctional Services Department, the contents of the various medical reports that are before me." (Tr. pp. 9-10)

12. It is apparent from these remarks that the judge was, as we have said, fully conversant with the discretion vested in him. It follows, therefore, that unless it could be demonstrated that the judge wrongly applied his discretion, it would be most unlikely that we would interfere with the course he adopted.

Grounds of appeal

13. When this matter originally came before the court on 1 August 2000, Mr McCoy, SC, submitted that the sentence, set against the background of the Applicant's undoubted psychiatric illness, was manifestly excessive and wrong in principle. In particular, he contended that the judge had not adequately considered the exercise of his discretion to impose a hospital order when two Government psychiatrists were in agreement that such an order was the most suitable way to deal with the Applicant.

14. Mr McCoy also submitted that the judge had fallen into error by indirectly suggesting that the onset of the Applicant's mental illness came about only after the commission of the offence. This conclusion, he argued, had wrongly led the judge to decide that punishment, rather than treatment in a hospital, was the proper way in which to deal with the Applicant. It was pointed out that the judge's opinion had been in sharp contrast to the opinion of Dr Ng who had concluded that the Applicant was "harbouring active psychotic symptoms" at the time of the offence, and the opinion of Dr Choi who said that the Applicant was "under the influence of psychotic symptoms" which had distressed him and influenced "his ability to cope".

Criticisms of the judge's conclusion that this was a "familiar" robbery

15. There is no doubt that the judge was considerably swayed in his approach to sentence by the view he had taken that this was a robbery "somewhat familiar in matters of this nature". Plainly, an armed robbery of this kind would normally call for the sort of sentence the judge had in mind. There was a striking difference between imprisonment with a starting point of six years and a short hospital order which appeared to have been contemplated by Doctors Ng and Choi. On any view the judge's task was a most difficult one.

16. There were, however, a number of features relating to the offence itself which the judge may have overlooked when he came to consider whether the robbery really fitted the usual pattern to be expected in cases of this kind. We can say this because the judge made no special mention of certain aspects of the case which tend to show that this was far from the normal or "familiar" robbery. Mr McCoy characterised the robbery as "bizarre" and, for the reasons which follow, we found ourselves in general agreement with him.

17. Earlier in the judgment, we said we would need to return to some further details about the commission of the offence. There are two, in particular, which are worthy of mention. Firstly, on arrival at the clinic where the doctor who became the victim of this robbery worked, the Applicant produced his driving licence, as evidence of his identity, to a nurse who was working at the reception counter. He additionally provided his residential address where he lived with his mother. The Applicant's particulars were noted in writing on a registration form before he sat down to await his turn in the victim's consultation room.

18. The second oddity concerning the robbery, leaving aside the fact that the Applicant never physically took the $800 handed over to him by the victim, was that the Applicant remained on the premises for a considerable time after the offence had been committed, with the result that he was still there when police arrived. The summary of facts reveals that he had arrived at the clinic at 5.15 p.m. on 4 October 1999. After the registration process had been completed, he waited a short time before going into the consultation room. Police arrived there, and arrested the Applicant, at about 5.28 p.m. The Applicant then gave himself up without any fuss and was cooperative throughout the time he was under investigation by the police.

19. These two unusual features of the robbery cannot, however, be looked at in isolation because it is when they are set against some of the findings made by the psychiatrists, which were included in the reports before the sentencing judge, that they take on a greater significance. Dr Ng wrote about the Applicant that:

"Since September 1999, he began to feel insecure and he felt that other people were trying to harm him, particularly the triads. He believed himself was being followed. He also felt that the neighbours and his friends made references to him and they seemed to know his thinking and his next action. He also heard 'voices' which gave suggestion to him. He believed the only way to get away from these disturbances was to get into jail. He claimed he then robbed the clinic, as he thought he would be imprisoned by doing so." (Emphasis added)

20. Dr Ng also found that the Applicant had limited insight towards his mental problem, a view which was shared by Dr Choi. Significantly, therefore, if he was only to a limited degree able to comprehend the nature or extent of his illness, this would explain why the Applicant might well not have spoken about his mental state to the police or anyone else until much later. It may be that the judge had overlooked this possibility when tacitly expressing reservations about how ill the Applicant really was at the time of the offence.

21. Dr Choi's description of the account given by the Applicant was that:

"... he was very troubled by the voice and idea of persecution. He had tried various methods to get rid of the disturbance. So on the day of offence, when he was walking on the street, he saw a knife and picked it up. He had the idea that after robbing a clinic, he would be caught and get jailed which would be safer than at home. So he admitted that he had attempted robbery and said to the doctor in the clinic of robbery. He then waited to be arrested in the clinic. He denied any genuine wish to rob for money or to harm others. He denied any substance abuse or alcohol use before the event." (Emphasis added)

22. As we have said already, both psychiatrists were in agreement that the Applicant appeared to have acted, at the time of the offence, under the influence of psychotic symptoms. They also agreed that inpatient treatment at Siu Lam Psychiatric Centre was required. There was evidence before the sentencing judge that a bed was available in the event that he decided to make a hospital order.

Section 45 hospital order

23. Section 45(1) of the Ordinance governs the making of a hospital order. This empowers the court to make a hospital order where:

"(b) the court ..... is satisfied on the written or oral evidence of 2 registered medical practitioners received in accordance with section 46 that -

(i) such person is a mentally disordered person; and

(ii) the nature or degree of the mental disorder from which the person is suffering warrants his detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment; and

(c) the court ..... is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of such person, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section, ...."

24. This section is set out in very similar terms to section 37 of the Mental Health Act, 1983, which in England superseded section 60 of the Mental Health Act 1959 on which the Hong Kong Ordinance was modelled. Bearing this in mind, Mr Reading, SC, on the Respondent's behalf, most helpfully referred this court to a number of English and Hong Kong decisions which demonstrate that the reasons given in the English courts for the making of hospital orders have been in large measure adopted by the Court of Appeal in Hong Kong. Essentially, mentally disordered offenders, whether or not the disorder has been the root cause of the offence, are approached on the basis that the law, where possible, should facilitate treatment in hospital.

25. The general tenor of the courts' approach to this aspect of sentencing has been summarised in an article, entitled Sentencing the Mentally Disturbed Offender, (1965) Crim. L. R. 685 which, at p. 698, reads:

"A survey of decisions of the Court since the passing of the Mental Health Act,1959, suggests that the powers given by the Act are being used whenever possible. The Court is quite prepared to abandon concepts of retribution and deterrence when dealing with a mentally-disturbed offender who has committed even a serious offence of violence which would in the normal way attract a deterrent sentence, and sentences of imprisonment are used only where a hospital order or probation order with a condition for treatment are unsuitable; in such cases an indeterminate sentence is used wherever possible, although there is some reluctance to do so where the offence concerned is not in the most serious category."

26. In R v Chan Kin, CACC 421/1989 (unreported), Silke V-P described at p. 4 the making of an order under section 45 of the Ordinance as being:

".... for the protection of the public and in the interest of the applicant."

27. In Chan Kin's case, where an unspecified period of treatment had been imposed, the court immediately went on to consider the circumstances in which hospital orders for unlimited duration should be made by citing part of the judgment in Tsui Chung-leung v R, CACC 414/1979 (unreported) where Sir Denys 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." (Emphasis added)

28. On any view, the psychiatrists in the present case were recommending short-term rather than long-term treatment.

Adjournment for further reports

29. Whilst there was no mandatory requirement for the judge to have made a hospital order merely because the psychiatrists were agreed that this was the most suitable method of disposing of the case, when this application first came before this court we felt that on balance the judge may have erred in the exercise of his discretion by not having made such an order. With this in mind, we ordered fresh psychiatric reports and we strongly recommended that the Applicant should meanwhile be transferred to Siu Lam Psychiatric Centre for the purposes of assessment.

Fresh psychiatric evidence

30. Dr Steve Tso and Dr Y.C. Wong prepared further psychiatric reports in October 2000 while the Applicant was being treated at Siu Lam Psychiatric Centre. The reports were at that time in agreement that "at least six months" would be needed for the Applicant's treatment. The psychiatrists were concerned about the Applicant's suicidal tendency which, as Dr Tso stated, was "not uncommon among chronic schizophrenic patients". Dr Wong stated that the Applicant had "no insight" into his mental illness.

31. We were later served with a report from Dr Sung Wing-kuen dated 22 March 2001. He reported, following examinations of the Applicant on 6 and 19 March 2001, that the Applicant was:

".... suffering from chronic schizophrenia with negative symptoms as evidenced by restricted range of emotional expression, slowness and poverty of thought. His mental state was relatively stable in the past one month. Currently, he has no definite persecutory delusion (the false belief that the triad society was plotting against him). He has no obvious features suggesting morbid depression and his suicidal risk is not high at this stage. He will be arranged to attend psychiatric outpatient clinic or to admit to mental hospital for rehabilitation if he is ready for discharge from this centre."

32. When the matter was eventually re-listed before this court on 27 March 2001, we heard evidence from Doctors Wong and Sung. However, it soon became apparent that we would need to hear from Dr Steve Tso as he had been in overall charge of the Applicant's treatment and only he could realistically provide a firm opinion as to the proper course to be adopted in the Applicant's treatment for the future. As he was then overseas, the matter unfortunately had to be adjourned once again.

33. In due course, we were provided by Dr Tso with a report dated 26 April 2001. In this, he stated that a new antipsychotic drug called "olanzapine' has been given to the Applicant with the result that he had shown "slow but progressive improvement" in his mental state. The Applicant no longer harboured suicidal thoughts. In his opinion:

".... further detention in the Correctional Services Department Psychiatric Centre or a mental hospital for treatment is not warranted. Hence a Hospital Order sentence is not recommended at this juncture. Having said that, he should continue to receive maintenance anti-psychotic medication from a psychiatric outpatient clinic. It is also desirable that he can be admitted to a half-way house for further social rehabilitation if he is discharged from the prison."

34. Before Dr Tso confirmed his written opinion in court on 11 May 2001 (when the matter was next listed), we had made a request for a probation report in order to see whether the Applicant could be admitted to a half-way house which was suitable for someone in the Applicant's state of mind.

35. A most comprehensive and helpful probation report was then prepared by Ms Pang Fung-cheung, to whom we express our gratitude for having undertaken this task at short notice. She made visits to see the Applicant at Siu Lam on 4 May and 9 May 2001. For reasons which no longer matter, Ms Pang felt unable to recommend a probation order for the Applicant at that time. However, since then, Dr Tso has arranged for the Applicant to be admitted to Chun Shek Halfway House which he has confirmed today. This is geared to those who are suffering from some mental illness. On this basis, Ms Pang accepts that a probation order with special conditions could properly be made.

Probation Order

36. The Applicant, having today had the full effect of a probation order explained to him and the particular terms which we propose to apply in his case, has given his consent to such an order being made.

Conclusion

37. Accordingly we propose to give leave and, treating the hearing as the appeal, we shall quash the sentence of four years' imprisonment. In its place, we shall make a probation order for twelve months with the special conditions attached that the Applicant:

(1) be admitted to Chun Shek Halfway House for a period of twelve months, and

(2) be required to receive psychiatric treatment as instructed by the psychiatrist.

The usual conditions of a probation order have been explained to the Applicant, together with the possible consequences of a failure to adhere to them, and he has agreed to be bound by them.

38. Before we leave this case, we would like once more to express our gratitude to Dr Steve Tso and to Ms Pang Fung-cheung for the very considerable assistance that each one of them has given to this court.