HKSAR v. WANG CHEE YAT

HCMA 227/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 227 OF 2002

(ON APPEAL FROM WSCC 12179/2001)

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J U D G M E N T

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1. The Appellant was convicted after trial before a magistrate of a charge of indecent assault. He was sentenced to imprisonment for 2 months. He now seeks to appeal against both conviction and sentence.

2. The facts are very simple. From what was adduced by the prosecution during trial, the victim was employed in the household where the Appellant and his family live with his mother. There were two households and the victim was employed by the Appellant's mother. In the morning of 9 October 2000, the victim was called by the Appellant to his bedroom. After she got there, the Appellant closed the door behind her and locked it. He reached from behind, over her shoulders, and used both hands to grab her breasts. He squeezed them for a short period, estimated at about 30 seconds, while she struggled. Then he pulled her to the bed and she sat down before immediately getting up and making off.

3. It was on the basis of the prosecution evidence that the Magistrate found the case against the Appellant proved and convicted the Appellant.

4. The Appellant elected not to give evidence. His defence put forward by counsel on his behalf was one of denial. The sole ground of the Appellant's conviction is that the conviction was unsafe and unsatisfactory because of the material irregularity in the course of the trial, namely the impairment of Appellant's mental ability to make a decision as to whether or not to give evidence. In this context, a report from Dr Christina Cheng, an experienced psychiatrist, was adduced as fresh evidence. It should be also noted that when the Appellant appeared before DHCJ Day, a report from another psychiatrist was ordered and as a result, Dr Choi Wing-kit, who is a Medical and Health Officer of the Forensic Psychiatric Clinic of Pamela Youde Nethersole Eastern Hospital, was obtained.

5. The argument advanced by Mr Duncan on behalf of the Appellant was this:

"Having regard to Dr Cheng's report, it was clear that the Appellant's mental capacity was significantly impaired at the time of the trial, rendering him unable to make a decision as to whether he should give evidence or not."

6. There is also an affidavit from Mr Eric Kwok who represented the Appellant at the trial. According to Mr Kwok, he advised the Appellant of his right to give or not to give evidence. And having done that, the Appellant decided or elected not to give evidence, it is on this basis that no evidence from the Appellant was adduced. Mr Kwok also stated in his affirmation at no time during the conduct of the trial was he aware that the Appellant had a history of suffering from mental illness.

7. The Appellant was able to follow the proceedings and gave instructions to his counsel. The Appellant was acting normally and understood what was going on during the trial. There is also a passage from Dr Choi Wing-kit in paragraph 5 of his report to this effect:

"for the index offence Wang managed to give a detailed and coherent account on the events occurred. There was no evidence suggesting that he was under influence of psychotic symptoms, drugs or alcohol at time in question."

On 27 September 2002, the Appellant gave him clear impression that he had complete understanding of events. I think in this regard, his opinion differs slightly from that of Dr Cheng's, although Dr Choi agreed mainly with the report of Dr Cheng.

8. Having regard to all the circumstances that can be gathered from the proceedings, I have to consider whether I should admit fresh evidence under s. 83V of the of Criminal Procedure Ordinance. This evidence was readily available to the Appellant if he had then raised the issue of his mental disability but that was not done at his own choice. I think it is far too late to raise it now to set up this defence and I am satisfied having regard to all the factors that the conviction would not be unsafe or unsatisfactory. Therefore, I dismiss the appeal against conviction.

9. Turning to the appeal against sentence, although I will not say that the sentence of 2 months imprisonment imposed by the Magistrate is manifestly excessive, it would be a proper sentence if the Appellant has not suffered from mental illness as indicated in the reports of both Dr Choi and Dr Cheng. It is clear that the Appellant requires medical treatment on his mental illness. In the opinion of Dr Cheng, a period of 2 months is recommended. Dr Choi leaves the question of the length of treatment open. The Appellant is clearly suffering from serious mental disorder and it would be in his interest and also the interest of the community for him to receive treatment in a psychiatric centre.

10. For these reasons, his appeal against sentence would be allowed to the extent that the sentence of 2 months imprisonment imposed by the Magistrate will be replaced by a hospital order that the Appellant be detained in Siu Lam Psychiatric Centre for a period of 2 months as recommended by both psychiatrists.