THE QUEEN v. LO SIU WING

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1456 Of 1989

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BETWEEN

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JUDGMENT

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1. The appellant was convicted after trial by Mr W. Banks on the 10th October 1989 on a charge of indecent assault. He now appeals against that conviction.

2. The brief facts were that a woman was standing on the footpath when she felt the appellant touched her right buttock. The appellant was subsequently arrested and charged with the offence.

3. The charge of indecent assault was not one which entitles a defendant to assistance from the Duty Lawyer scheme and being a Magistrates Court case did not entitled the defendant to Legal Aid. The appellant was therefore left to defend himself. At the end of the prosecution case, he was asked if he wished to give evidence. From the record, it is clear that he could not make a decision about this and after several attempts to get him to do so, the Magistrate felt the need to put him into the cells. He was later brought back to court, elected to give evidence, and in that evidence claimed that if any touching had taken place, it was accidental.

4. The Magistrate had this to say about this evidence :-

"The defendant on the other hand prevaricated. His evidence was not consistent and accordingly wherever his evidence conflicts with that of the Prosecution Witnesses I accepted the evidence of the Prosecution Witnesses."

5. The Magistrate called for probation officer's and psychiatric reports. These show the appellant to have a long history of mental illness, tracing back to his early adolescence. He is described by the psychiatrist as a chronic schizophrenic with residual symptoms. It is the psychiatrist's opinion that at the time of the offence, he was probably having poor impulse control.

6. Mr McLanachan for the appellant submits that the Magistrate failed to take into account, during the trial, the appellant's obvious mental state and should have been alerted of the need for medical reports at that point; that if he had done so, it would have revealed the need for the appellant to be professionally advised and to the possibility that at the time he might not have had the mental capacity to form the necessary intent.

7. I have to say that this case does cause me considerable concern in that the appellant is clearly shown to be suffering from a sever mental disorder. In my view, it cannot be right that a man in such a condition should be left to defend himself on what is a serious charge. If he had been represented, then quite clearly his long history of mental disorder would have been revealed and the Magistrate would have been able to assess the position, with that information in mind. The proper course would be to quash the conviction and to order a retrial. However, the offence took place some time ago and is, of its kind, less serious. In the interests of justice and as an act of mercy, what I propose to do is simply to quash the conviction. In doing so, I am hopeful that the appellant will take the advice which comes from the psychiatric report that he needs to restart treatment and to continue that treatment until it is felt that he can safely stop. That is important both for himself and for the community.