HKSAR v. YUNG WING HONG

HCMA 316/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 316 OF 2004

(ON APPEAL FROM TWCC 605/2004)

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J U D G M E N T

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1. The Appellant pleaded guilty to one charge of Indecent Assault, contrary to s.122(1) of the Crimes Ordinance, Cap.200 and one charge of Common Assault, contrary to s.40 of the Offences Against the Person Ordinance, Cap.212.

2. Before the plea, the Magistrate ordered two psychiatric reports be prepared as to the Appellant's fitness to plead. Those reports confirmed he was fit to plead and he did so on 10 March 2004. The Appellant appeals against a Hospital Order of 2 months imposed by the Magistrate.

3. The Magistrate stated in his Reasons for Sentence that the Appellant had been fully aware of what he was doing at the time of the offence. The mitigation put before the court was that the Appellant had a clear record and was aged 31. He asked the court not to send him to a mental hospital because he had been in hospital custody for three weeks. He asked for a prison sentence instead.

4. The Magistrate considered that a Hospital Order under Section 45 of the Mental Health Ordinance, Cap.136 was appropriate and he was able to form that view from the reports of two psychiatrists, Doctor H. L. Au Yeung and Doctor Chan Yuen-ching. Their reports confirm that the Appellant has a psychiatric condition of some 2 years standing which has been diagnosed as schizophrenia. As appeared from this case he was suffering from symptoms of paranoid psychosis. The reports stated that he had shown poor drug compliance and under psychotic influence there was also a risk of his being violent. Because of his poor insight the psychiatrists considered that the psychiatric treatment his condition demanded was best done under inpatient supervision.

5. The Magistrate noted a period of four months inpatient treatment in Siu Lam Psychiatric Centre was recommended. He adjourned the case for two supplemental psychiatric reports to find out whether or not there was a place available at Siu Lam. The Appellant discharged his lawyer at that hearing once the reports had been explained to him. The Appellant then told the court that he had been mistreated in the Psychiatric Centre and described the mistreatment. He asked the court to consider that prior to the arrest he had been working normally in the community and had been accepted as a postgraduate student for study abroad.

6. The Magistrate reconsidered the matter and ordered the Appellant be detained for a period of 2 months. He reduced the period of the Hospital Order from 4 months to 2 months to take into account the time the Appellant had spent in hospital whilst awaiting disposal of his case.

7. The Appellant put before this court the matters he had traversed before the Magistrate; that he had been functioning in the community, and that he would not have been accepted for postgraduate study abroad if he had suffered from a mental condition. He claimed he only pleaded guilty to the offences under the influence of psychiatric drugs and solitary confinement. Those matters were considered by the Magistrate.

8. Having read the psychiatric reports, the transcript of the hearing and the Magistrate's Reasons for Sentence, I am satisfied that the order was properly made. There is no justification for my interfering with the Magistrate's order. This appeal is dismissed.