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Hksar v Lee Siu Tai

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date21 December 2001
Judgement NumberHCMA1257/2001
Citation[2002] 1 HKLRD 425
CourtHigh Court (Hong Kong)
Subject MatterMagistracy Appeal
HCMA001257/2001 HKSAR v. LEE SIU TAI

HCMA1257/2001 and
HCMA1283/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS. 1257 AND 1283 OF 2001

(ON APPEAL FROM WSCC 10469, KCCC 1865

AND SPCC 2363 OF 2001)

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BETWEEN
HKSAR Respondent
AND
LEE SIU TAI Appellant

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(HEARD TOGETHER)

Coram: Hon Pang J in Court

Date of Hearing: 21 December 2001

Date of Judgment: 21 December 2001

Date of Reasons for Judgment: 22 February 2002

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REASONS FOR JUDGMENT

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1. These are my reasons for :

(1) allowing the appellant's appeal against his sentence of 15 months' imprisonment for the offence of assault occasioning actual bodily harm and substituting it with a three-month Hospital Order in HCMA1257/2001 (the first appeal); and

(2) dismissing the appellant's appeal against a sentence of a three-month Hospital Order for the offence of handling stolen goods in HCMA1283/2001 (the second appeal).

2. On 30 October 2001, the appellant was convicted of the offence of handling stolen goods by a magistrate sitting in the Kowloon City Magistracy. Pursuant to section 45 of the Mental Health Ordinance, Cap.136, the learned magistrate, by way of sentence, imposed a Hospital Order for a period of three months. The appellant lodged an appeal against the Hospital Order.

3. At the time when the Hospital Order was imposed, the appellant was the subject matter of a Probation Order imposed earlier under magistracy case no. SPCC 2363/2001. The learned magistrate saw fit to discharge the Probation Order and imposed a concurrent three-month Hospital Order. There is, however, no appeal against the subsequent Hospital Order under case no. SPCC 2363/2001.

4. A week later, the appellant went before another magistrate sitting at the Western Magistracy this time charged with the offence of assault occasioning actual bodily harm. He was found guilty after trial and was sentenced to 15 months' imprisonment on 6 November 2001. The appellant also appeals against this sentence.

5. Both appeals came before me on 21 December 2001. The appellant was represented by Mr Eric Kwok of counsel on the instruction of the Director of Legal Aid. Mr Kwok did not appear for the appellant in the proceedings in the Magistracy.

6. The thrust of Mr Kwok's appeal against the sentence of 15 months' imprisonment in the first appeal is that the term imposed was manifestly excessive and the magistrate had considered matters as aggravating factors which should otherwise be irrelevant. Mr Kwok contended the magistrate should have imposed a Hospital Order in view of the history of mental illness of the appellant.

7. At the commencement of this appeal, Mr Cheung for the respondent readily conceded that the sentence of imprisonment was wrong in principle. He drew the court's attention to section 45(3) of the Mental Health Ordinance which provides :

" (3) Where a hospital order has been made, the court or magistrate shall not impose a sentence of imprisonment or a fine or make a probation order in respect of the offence but may make any other order which the court or magistrate has power to make apart from this section and for the purpose of this subsection 'sentence of imprisonment' (監禁刑罰) includes any sentence or order for detention in a remand home, a reformatory school, a house of detention or a training centre."

8. It is therefore clear from the wording of the section that in respect of a single offence, the court cannot impose a sentence of imprisonment in addition to a Hospital Order. The position is however less clear in a case involving multiple offences committed by a single defendant as in the present case. I have not been able to find any Hong Kong authorities on this point.

9. A similar issue was raised before the Court of Criminal Appeal of Northern Ireland in R. v. Patterson [1970] N.I.8. In that case, the appellant Patterson pleaded guilty to seven counts in an indictment involving offences of dishonesty, violence and criminal damage. A Hospital Order under section 48 of the Mental Health Act (Northern Ireland), 1961 was made in respect of the first six counts and a sentence of three months' imprisonment was imposed in respect of the seventh count.

10. One of the grounds of appeal in that case was that a Hospital Order and a sentence of imprisonment cannot properly be given by the same court for the offences of which the appellant was convicted. That, it was contended, was in contravention of the provisions of section 48(5) of the Mental Health Act (Northern Ireland), 1961. There is no material difference between the wording of section 48(5) of the Irish Act and section 45(3) of the Mental Health Ordinance cited above. Their Lordships...

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