Tong Pui-keung v The Queen

CourtCourt of Appeal (Hong Kong)
Judgment Date04 Jan 1980
Judgement NumberCACC1160/1979
SubjectCriminal Appeal
CACC001160/1979 TONG PUI-KEUNG v. THE QUEEN

CACC001160/1979

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1160 OF 1979

-----------------

BETWEEN
TONG PUI-KEUNG Appellant

AND

THE QUEEN Respondent

-----------------

Coram: Silke, J. in Court.

Date of Judgment: 4 January 1980

-----------------

JUDGMENT

-----------------

1. On the 26th October 1979 the appellant, Tong Pui Keung, appeared in Tsuen Wan Magistracy on a charge, brought under the provisions of Section 17 of the Summary Offences Ordinance, that he did on the 23rd October 1979 have in his possession two knives and a plastic pipe "fit for an unlawful purpose and was unable to give a satisfactory account of your possession thereof".

2. No plea was taken and the prosecutor intimated that the appellant might not be fit to plead and asked for a remand for a medical report. Two brief medical "chits", as they were described, were placed before the Learned Magistrate, one of these "chits" stated the appellant was an old case of schizophrenia, the other that he was an old patient of Castle Peak Mental Hospital and had relapsed into schizophrenia.

3. He was remanded in custody for a medical report.

4. On the 9th November 1979 the appellant again appeared, before another magistrate, in the same magistracy.

5. The record states "Reports received. Statement of facts received" it notes: "Informs the defendant", records the defendant as saying "I was in and out of hospital" and then the learned magistrate made a section 45 order for a period of three months.

6. In his statement of findings the learned magistrate stated himself to be satisfied that the requirements of section 45 (iii) (b) and (c) had been complied with.

7. I have no doubt that the section 45 order was made within the best of intentions - indeed it may be the right order - but I have considerable doubts, in the circumstances here, as to whether it should ever have been made.

8. Section 45 of the Mental Health Ordinance, in so far as it is relevant reads: (in its section 45 (1) (iii)) where a person is "charged before a magistrate with an act or omission as an offence punishable on summary conviction by imprisonment and the magistrate is satisfied that such person did the act or made the omission: ...".

9. "Satisfied" here, in my view, must be satisfaction on the ordinary criminal burden -...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT