R v. LAM KA YIU

IN THE COURT OF APPEAL

1996, No. 286
(Criminal)

________________

________________

________________

J U D G M E N T

________________

Bokhary, J.A.:

1. This is an appeal against sentence.

2. The appellant is a man in his late 40's. In the afternoon of November 30, 1995, he walked into a bank in Lai Chi Kok. He shouted that it was a robbery and that he had a bomb.

3. A police officer arrived. At gunpoint, he ordered the appellant to lie flat on the ground. The appellant did so. As it turned out, he did not have a bomb.

4. In due course he was questioned under caution by another police officer. He accounted for his conduct by saying that he had been chased by somebody who wanted to kill him. That, it is accepted on all hands, was a delusion on his part.

5. He was charged with attempted robbery. And on May 10 last year, he appeared before His Honour Judge Muttrie in the District Court to face that charge.

6. There was no dispute that he did the act charged.

7. But the medical evidence was that he was insane.

8. The judge accepted that evidence. Accordingly, he returned a special verdict - under s.74 of the Criminal Procedure Ordinance, Cap.221 - of not guilty by reason of insanity.

9. He then ordered that the appellant be admitted to the Correctional Services Department Psychiatric Centre at Siu Lam. So the appellant was admitted to Siu Lam pursuant to that order.

10. Such orders are (by virtue of paragraph 2 of Schedule 4 to the Criminal Procedure Ordinance) equated with hospital orders made under s.45 of the Mental Health Ordinance, Cap.136. And hospital orders can be appealed against. Section 46 of the Mental Health Ordinance so provides.

11. The appellant is still being detained at Siu Lam today.

12. Under s.76(1) of the Criminal Procedure Ordinance as it stood at the time when the judge dealt with this appellant, a court which found a person not guilty by reason of insanity was limited to ordering that he "be admitted to [Siu Lam] or such mental hospital as may be specified by the Governor."

13. But since November 1 last year, when certain amendments to the Criminal Procedure Ordinance come into force, the court is no longer thus limited.

14. Section 76 of that Ordinance now reads:-

"(1) This section applies where -

(a) under section 74 a special verdict is returned that an accused person is not guilty by reason of insanity; or

(b) under sections 75 and 75A a finding is recorded that an accused person is under disability and that he did the act or made the omission charged against him.

(2) Subject to subsection (3), the court shall -

(a) If it is satisfied, on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be practitioners approved for the purposes of section 2(2) of the Mental Health Ordinance (Cap. 136), that it is necessary in the interests or the welfare of the accused person or for the protection of other persons that the accused person be admitted to the Correctional Services Department Psychiatric Centre or a mental hospital, make an order that the accused person be admitted -

(i) in accordance with the provisions of Schedule 4, to that Centre; or

(ii) to such mental hospital as may be specified by the Governor, as the case may be; or

(b) make in respect of the accused person such one of the following orders as it thinks most suitable in all the circumstances of the case, namely -

(i) a guardianship order under Part IIIA of the Mental Health Ordinance (Cap. 136)

(ii) a supervision and treatment order under Part IIIB of that Ordinance;

(iii) an order for his absolute discharge.

(3) Subsection (2)(b) shall not apply where the offence to which the special verdict or the finding relates is an offence the sentence for which is fixed by law.

(4) For the avoidance of doubt, it is hereby declared that -

(a) the court may not make an order referred to in subsection (2)(b)(i) or (ii) where it is prohibited from so doing by virtue of the provisions of Part IIIA or IIIB, as the case may be, of the Mental Health Ordinance (Cap, 136);

(b) the fact that the court makes an order referred to in subsection (2)(b)(i) or (ii) in any case where subsection (I)(b) is applicable shall not of itself prevent the accused person from being tried in respect of the act or omission charged against him should he subsequently cease either to be subject to that order or to be under disability (but without prejudice to the operation again of sections 75 and 75A in respect of the accused person).

(5) Section 75(6) and (7) shall apply to this section as it applies to section 75"

15. This appeal first came before us on December 18 last year. Counsel for the appellant invited us to replace the present order in respect of his client with a supervision and treatment order under Part IIIB of the Mental Health Ordinance.

16. Before a supervision and treatment order can be made, it is necessary to have: the favourable evidence of two registered medical practitioners; the advice of the Director of Social Welfare; and a social enquiry report. Such evidence is required under s.44D(1)(b) of the Mental Health Ordinance; such advice is required under s.44D(1)(c)(iv) thereof; and such report is required under s.44E(1) thereof.

17. All of that material was placed before us at the resumed hearing on February 14 this year. It became apparent then that further information and submissions thereon would be necessary. So the matter was again adjourned.

18. And it came before us for the third time today, March 20.

19. The material now before us points in favour of a supervision and treatment order on the merits. And such an order ought to be made here if we have jurisdiction to make it.

20. We are satisfied that we have such jurisdiction. As Litton JA said in In re C W Reid [1994] 2 HKLR 14 at p.24: "the sentencing process did not stop with the court below and ... continued until finally dealt with by this court." So the principle is that the sentencing process includes the appellate stage. Its application has generally been in cases where an appellant has, between the time of his sentence and of his appeal, earned credit by giving accomplice evidence for the prosecution. But there is no reason why the principle is to be confined to that practice. The principle authorizes the practice, not the other way round.

21. In the result, we allow the appeal, set aside the order under which the appellant is being detained at Siu Lam and replace it with a supervision and treatment order requiring the appellant:

(i) to be under the supervision of the Director of Social Welfare or any person acting under his authority as a supervising officer for a period of two years commencing from today; and

(ii) to submit during the whole of that period to treatment by or under the direction of a registered medical practitioner or other appropriately qualified person with a view to the improvement of his mental disorder.

22. Naturally, some time is required for the purpose of making proper arrangements for the appellant's supervision and treatment. Accordingly, our order setting aside the order under which the appellant is being detained at Siu Lam and replacing it with a supervision and treatment order will come into effect on Friday, April 4, 1997, rather than today.

23. No doubt others will explain the effect of the order to the appellant. Nevertheless, we ourselves should tell him this now.

24. He must keep in contact with his supervising officer in accordance with such instructions as that officer may give him from time to time. And if he changes his address, he must notify his supervising officer of such change.

25. The supervision and treatment order is subject to revocation or variation by the court. Here it will be the District Court.

26. Applications for revocation can be made by the supervised person himself, by a relative of his or by his supervising officer.

27. The order can be revoked if, having regard to circumstances which have arisen since it was made, revocation would be in the interests of the supervised person's health or welfare.

28. An order can also be revoked, or its requirements varied, if there is persistent refusal by the supervised person to comply with its requirements.