THE QUEEN v. HUANG CHEN SHENG

-----------------------

H E A D N O T E

-----------------------

Hospital order - 'act or omission' must be strictly proved by evidence or admission.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 704 OF 1988

------------------------------

----------------------

J U D G M E N T

----------------------

1. The appellant was charged with arson at a shop in Kai Tak Airport before Mrs. Chui in San Po Kong Magistrates Court. The prosecution informed the magistrate at the outset that the appellant was an ex-mental patient and applied successfully for an adjournment for a psychiatric report on his fitness to plead.

2. On the adjournment two reports were submitted, stating that the appellant was fit to plead but was suffering from schizophrenia and in need of intensive psychiatric treatment. Both doctors recommended that he be committed to Siu Lam Psychiatric Centre for nine months under a Hospital Order.

3. The magistrate then attempted to take a plea. When the charge was put to him, the appellant replied 'The table was mine'. In reply to a question by the magistrate, he added 'All things are mine, including the airport'.

4. The facts of the case were read to the appellant. The record does not show whether or not he admitted the facts, only that he said 'I was locked up in Siu Lam and given many injections without my consent.' The magistrate then ordered him to be detained for nine months at Siu Lam Psychiatric Centre.

5. The first ground of appeal was that the magistrate erred in recording a conviction when no proper plea had been taken. I think this arises from a misunderstanding of the appeal papers. Nowhere in the magistrate's record, or her Statement of Findings, does she say that she convicted the appellant. There is an endorsement on the charge sheet that reads 'Convicted on his own plea', but I think this is more likely to have been written by a clerk than the magistrate.

6. The magistrate has signed Form 24, which states that the appellant has been convicted, but this form is drawn up, under S.28 of the Magistrate Ordinance, only for the purposes of appeal. There appears to be no form appropriate for use where there has been no conviction. This is something that should be remedied. I am satisfied that in this case the appellant was not convicted.

7. S.45 of the Mental Health Ordinance, Cap.60, gives a magistrate power to make a Hospital Order, on the recommendation of two registered medical practitioners, where a person is charged "with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission".

8. In R v Tang Yau Chi⁽¹⁾ Power, J.A., giving the judgment of the Court of Appeal, said at P.6 :-

"It seems to us clear that s.45 was to deal with the case where the court, an offender having been proved to have done the acts which constitute the actus reus, was satisfied either that he had no mens rea or was left in doubt in that regard."

9. In her Statement of Findings the magistrate said she was satisfied, from the psychiatric reports and from the defendant's demeanour and response, that he did the act. This presumably is a reference to a sentence in one of the psychiatrist's reports that the appellant had claimed that he had burnt his re-entry permit to protest against persecution by the Government.

10. Miss Spruce, who appeared for the appellant, is clearly right in her submission that the magistrate should not have relied. upon a hearsay document to this effect. As O'Connor, J. observed in R v Tam Kit-nin⁽²⁾, the rules of evidence apply in such a case. Psychiatric reports are admissible under S.46 only for the purpose of proving the nature and degree of mental disorder. Nor could the magistrate have been satisfied, from the appellant's demeanour and response, that he had done the act in question, unless he had admitted the facts of the case. As O'Connor, J. also said in R v Tam Kit-nin⁽²⁾ at P.2 :-

"The learned magistrate, in his statement of findings, says he took the view that the document entitled Brief Facts of the Case, together with the recommendations of the doctors was sufficient to warrant his making the order. It was not. The document, Brief Facts of the Case is not evidence at all, and cannot be acted upon unless there is an admission as to its truth."

11. The magistrate's proper course in these circumstances was to have called on the prosecution to lead their evidence and then to have invited the appellant to cross-examine and to give evidence himself if he so wished. Only then would she have been in a position to make a finding as to the commission of the act.

12. The Crown did not seek to uphold the magistrate's order. The appeal is allowed, the order quashed and a retrial ordered, pending which the appellant is remanded in custody.

(1) M.A. 862/87

(2) C.A. 1123/81