R. v. CHAN TAK KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1167 OF 1996

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J U D G M E N T

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1. The appellant was charged with three charges of criminal damage and one count of assaulting a police officer. He was convicted of the criminal damage charges but was acquitted of the assault charge. He was sentenced to six months imprisonment in total.

2. He now appealed against conviction.

3. The facts as found by the magistrate were that the appellant was invited to an interview by police in connection with a case of paint splashing outside the appellant's mother's house. During the interview, the appellant told the officer interviewing him that he needed to take medication for the pain in his foot. He took some medication. Then when the interview proceeded, he took some strange action such as using a key and a ball point pen pointing it against his neck in a motion of slashing his own neck. He was allowed to leave when he asked if he could go. But he did not. Then he seized a telephone and made a call. After that, the appellant used a chair to smash at the window. He hit the window with the chair three times. The window did not break on the first hit but after the second and the third time, the double glazed glass window was smashed. In the course of this, the appellant hit an officer on his head with the chair injuring him. The broken glass damaged the windscreens of two cars parked below the window.

4. There was no dispute that the damage to the window and the windscreens of the cars was caused by the appellant. The point in question was whether he did that intentionally or recklessly.

5. The appellant did not give evidence before the magistrate. His case was that he was unaware of what he did and the defence he sought to raise was that of automatism. He called Dr Ng who had examined him one day after the incident. Dr Ng's evidence was that the appellant was having acute confusional episode. His conclusion at that stage was "episode of drug intoxication because it was short lived confusional episode." Dr Ng said : "As I suspected he had drug induced intoxication, I advised officer responsible to do a urine and blood drug screening and because at the time of interview I could not rule out possibility that similar episode would recur". In view of the fact that while he was confused in police station and he had attempted to hurt himself and to assault others, Dr Ng said he recommended compulsory admission to a psychiatric institution for observation for seven days. That was never carried out because the appellant had left.

6. Dr Ng said he had not come to a very firm conclusion at that time because he had to further see the appellant's relatives and others involved. In cross-examination Dr Ng was asked :

"Q. Did you think he was doing those actions deliberately?

A. From my point of view he was confused at that time.

Q. Would he be able to remember it?

A. In this case I think he has partial amnesia."

7. The prosecution called no medical evidence and there was no evidence of what was the medication the appellant had taken while he was in the police station.

8. The magistrate in his statement of findings stated that he did not attach much weight to Dr Ng's evidence because the examination lasted only for a short time and that was only the appellant's side of the case. The magistrate found that the issue of automatism was disproved by the prosecution. He said :

"Despite the prosecution's failure to deal with the issue head on I was satisfied that there was sufficient evidence from the prosecution witnesses to negative automatism by proving beyond reasonable doubt that the appellant's acts were voluntary in the sense that he knew what he was doing at the material time."

The magistrate based his finding on the evidence that the appellant had made a telephone call in which he said "I am Chan Tak Kwong. I am now in anti-triad unit in Airport Station and I want help."

9. Counsel for the appellant submitted that there was evidence showing that the appellant was confused. He relied on the evidence of PW1's observation of the appellant's behaviour while he was interviewing the appellant. He submitted that the magistrate relied only on what the appellant did and said over the phone to find the burden of the prosecution to negative automatism which was insufficient.

10. PW1's evidence in this respect was that he saw the appellant take one tablet and after five minutes, the appellant said he was not feeling well and was feeling dizzy. He found the appellant a bit dull and when the appellant was told that he could go after he signed, the appellant looked at him for 20 seconds and PW1 had to repeat what he said. The appellant became very nervous and behaved as if he were to hurt himself. PW1 believed that the appellant had attempted suicide. The appellant also spoke incoherently.

11. PW2 said that the appellant attempted to kill himself. He then made the telephone call referred to by the magistrate. After that he caused the damage to the window. He said that the appellant spoke incoherently sometimes and his mood swung from aggression to prostrating himself before the officers.

12. Mr Wong for the Crown referred to AG's Reference (No.2 of 1992) (1994) QB 91 where it was held that before the defence of automatism could be left to the jury a proper evidential foundation for the defence had to be laid and that the defence of automatism required a total destruction of voluntary control of the defendant and reduced or partial control was insufficient to found the defence. Mr Wong submitted that the magistrate's finding that automatism had been negatived was correct.

13. In AG's Reference (No.2 of 1992), Lord Taylor CJ said at page 105 :

"However that may, the proper approach is that prescribed by Lord Lane CJ :

' Where the defence of automatism is raised by a defendant, two questions fall to be decided by the judge before the defence can be left to the jury. The first is whether a proper evidential foundation for the defence of automatism has been laid. The second is whether the evidence shows the case to be one of insane automatism, that is to say, a case which falls within the M'Naghten Rules, or one of non insane automatism.'

The first of those questions is the one raised by this reference. In our judgment, the 'proper evidential foundation' was not laid in this case by Professor Brown's evidence of 'driving without awareness'. As the authorities cited above show, the defence of automatism requires that there was a total destruction of voluntary control on the defendant's part. Impaired, reduced or partial control is not enough. ....."

14. Dr Ng's evidence, though never challenged by the prosecution, putting it at its highest was no more than that the appellant did the acts while he was in a confused state and he had partial amnesia. It was a short lived acute confusional episode as a result of drug intoxication. This was not a total loss of control. The fact that he might be incoherent, dull and might have attempted to commit suicide but at the same time retained sufficient control to make the telephone call in the manner accepted by the magistrate would not make his actions totally involuntary so as to form a proper evidential foundation for the defence to be raised.

15. The magistrate's finding was in effect that the defence of automatism was not available to the appellant who was not totally involuntary in doing what he had done. This finding cannot be faulted.

16. The magistrate in his findings referred to two psychiatric reports on the appellant's fitness to plead which were not part of the evidence before him. He said :

"For the avoidance of doubt I must mention that I had at no time allowed myself to be influenced by the opinions expressed by the two psychiatrists, namely Dr Patrick Kwong and Dr J. Ko in their reports on the appellant's fitness to plead. These reports had been called in March 1996 by another magistrate pursuant to the request of the Defence. Hence, when Defence Counsel told me at the beginning of the trial that he would be calling a government psychiatrist as a defence witness, I thought he wanted to call one of the two and I therefore read their reports which had been left unsealed in the Court file."

17. Mr Macrae for the appellant submitted that even though the magistrate declared he was not influenced by these reports, he might have been unconsciously influenced by them when in his findings he said :

"There was not a scrap of evidence to show that the police officers had pressurised the Appellant or had dealt with him in a high-handed manner."

It was submitted it was never part of the defence's case that the police had acted in any way improperly where the reports suggested the appellant's response at the interview could have been a reaction to harsh treatment by police officers. It was submitted that it was a material irregularity to have consulted such material without disclosing such fact to the defence.

18. Mr Macrae relied on R. v. Lin Chun Wing MA589/91 where Sears J. held that it was an irregularity for a magistrate at a retrial to inspect notes of proceedings of the previous trial without the parties' knowledge despite the magistrate declaring himself not influenced by what he had read.

19. Mr Wong referred to the Privy Council case of AG v. Siu Yuk Shing (1989) HKLR 97 where Lord Griffiths considered the risk of prejudice to an accused if his previous conviction was admitted. He said :

"If the judge had been sitting with a jury he would have had to weigh carefully the probative value of such a previous conviction against the prejudice to the accused that would be likely to arise in the minds of the jury. The risk of such prejudice overbearing the probative value of evidence is of infinitely less significance when a case is tried by a judge alone. The judge must of course guard against any such result but his whole background and training have fitted him to do so."

Mr Wong submitted by analogy the appellant was not prejudiced even though the magistrate had seen the reports.

20. The magistrate being a professional, trained and qualified to decide on law and facts at the same proceedings and having declared he did not allow himself to be influenced by the reports, must be taken to have come to his findings independent of any influence by what he had seen on the reports. The fact that he referred to the absence of evidence of police pressure does not mean that he was subconsciously influenced by the reports. The magistrate was fully aware that there was no accusation of impropriety against the police as he had mentioned in paragraph 9 of his statement of findings. The reference to absence of such evidence was when the magistrate was dealing with the behaviour of the appellant during the interview from which he concluded that the appellant's conduct was voluntary.

21. The appellant's fitness to plead was also a matter the magistrate should be aware of when he proceeded to try the appellant. The present case is different from Siu Yuk Shing where the witness at the retrial was most reluctant in giving evidence and the magistrate took it upon himself to read through the note of proceedings on the previous trial to confirm what was put in cross-examination to the witness. There is nothing of this nature in the present case. This ground of appeal must fail.

22. The final ground of appeal was there was no evidence to support the finding of the magistrate that the appellant broke the window intentionally.

23. The evidence was the appellant hit the window more than once until it was smashed. The magistrate having found the appellant's act was not involuntary and not confused, was entitled to draw the inference from the evidence that the appellant's act of smashing the window was intentional. That was a finding of fact which this court should not interfere.

24. The appeal against conviction must be dismissed.