HKSAR v. CHAN KIN LIK

CAC C 89/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 89 OF 2013

(ON APPEAL FROM DCCC NO. 85 OF 2011)

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D E C I S I O N

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Hon Stock VP:

1. In May 2011 this applicant pleaded guilty to five offences committed in July and November 2010, three in relation to the making or possession of child pornography, one for an offence of criminal intimidation and one for falsely pretending to be a public officer. The sentencing judge adjourned for a series of psychiatric reports as well as a psychologist’s report.

2. At all material times the applicant was represented although he appears on this application in person, legal aid having been refused.  He was sentenced to 2 years and 6 months’ imprisonment and at the date of this application has been discharged from prison.

3. Despite the plea of guilty he seeks leave to appeal the conviction on the basis of a report from West Kowloon Psychiatric Centre to which hospital he first presented himself in August 2010 after his arrest for the first four offences.  He was then diagnosed as having recurrent depression and treatment was commenced.  The report which he has submitted is simply addressed to “Whom it may concern” and which the applicant tells me and I accept was produced at his request in relation to certain disciplinary proceedings relating to his employment and entirely unconnected with these offences.

4. It said that in mid-2010 the applicant started to have elated and depressed moods, and paranoid ideas and it said that “his judgment could be impaired under both circumstances, resulting in possible odd or inappropriate behaviours under an unsound mind.”

5. The applicant in short asserted that both at the time he committed these offences and at the time he was giving instructions to those representing him in May 2011, his cognitive powers were affected and this was only become apparent from the report obtained in October 2011. 

6. The first hurdle which the applicant has to overcome is his plea of guilty and he needs to show, before that plea can be treated as a nullity by this Court one of a number of circumstances to which reference is made by Woo JA in HKSAR v Wong Chi Yuk [2000] 3 HKLR 125 at 135, the only relevant circumstance of which for present purposes is that the plea did not result from a deliberate and informed decision. 

7. The difficulty in the applicant’s way in this regard is that in June 2011, that is at about the very time he was giving instructions to his lawyers in deciding whether to plead guilty or not, he was in a position to recount in considerable detail to the psychiatrists and to the psychologist the circumstances of the various offences.  His cognitive powers were quite obviously not then impaired and he has failed to establish any basis upon which to treat the pleas of guilty as nullity. 

8. It is strictly speaking unnecessary for this Court to comment on his contention that his medical condition or rather his psychiatric condition at the time of these offences were such that as a matter of law he was not responsible for his criminal acts.  The report dated 27 October 2011 is hardly conclusive as to that by any means and does not even purport to address the question of his psychiatric responsibility for his criminal acts.  There are a series of indicia which stand against the suggestion that his psychiatric condition impaired or negated his mens rea.  These were not spur of the moment of offences.  These were planned offences, each one of them, carried out over a period of time on the days in question when the applicant went equipped, certainly in relation to first four offences, with material by which to take photographs and to store them.  This is not the fabric of which absence of mens rea is made. 

9. Accordingly, the application for leave to appeal against conviction out of time is dismissed. 

10. The applicant will be aware since he is legally qualified – but I have to remind him nonetheless – that he has the right to renew his application to a full court.  If he wishes to do that, he should lodge his application within 14 days.