Hong Kong Ordinances

MENTAL HEALTH ORDINANCE - SECT 45

Powers of court or magistrate to make a hospital order

(Past version on 01/07/1997).
(Past version on 30/06/1997).

PART IV

ADMISSION OF MENTALLY DISORDERED PERSONS CONCERNED IN CRIMINAL PROCEEDINGS,
TRANSFER OF MENTALLY DISORDERED PERSONS UNDER SENTENCE AND REMAND OF MENTALLY
INCAPACITATED PERSONS (Replaced 81 of 1997 s. 38)

(1) Where-

   (a)  a person is-

        (i)    convicted by the Court of First Instance or a District Court of
               an offence other than an offence the sentence for which is
               fixed by law; (Amended 25 of 1998 s. 2)

        (ii)   convicted by a magistrate of an offence punishable on summary
               conviction by imprisonment; or

        (iii)  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; and

   (b)  the court or magistrate is satisfied on the written or oral evidence
        of 2 registered medical practitioners received in accordance with
        section 46 that-

        (i)    such person is a mentally disordered person; and

        (ii)   the nature or degree of the mental disorder from which the
               person is suffering warrants his detention in the
               Correctional Services  Department Psychiatric Centre or a
               mental hospital for treatment; and

   (c)  the court or magistrate is of the opinion, having regard to all the
        circumstances including the nature of the offence and the character
        and antecedents of such person, and to the other available methods of
        dealing with him, that the most suitable method of disposing of the
        case is by means of an order under this section, the court or
        magistrate may by a hospital order authorize the admission of the
        person to and his detention in the Correctional Services Department 
        Psychiatric Centre or a mental hospital specified in the order or, if
        the person is under 14 years of age, in a mental hospital specified in
        the order, and may specify in the order the period during which such
        person should be so detained which shall not be greater than the
        sentence which the court or magistrate could have imposed in respect
        of the offence with which such person was charged. (Amended 37 of 1973
        s. 3)

(1A) Where under subsection (1) the court or magistrate by a hospital order
authorizes the admission of a person to, and detention in, a mental hospital,
and is of the opinion that in all the circumstances of the case the proviso to
section 47(2) should not apply, the judge or magistrate may include a
statement to that effect in the hospital order and, if he does so, that
proviso shall not apply. (Added 46 of 1988 s. 15)

(2) A hospital order shall not be made under this section unless the court or
magistrate is satisfied that arrangements have been made for the admission of
the person to the Correctional Services Department  Psychiatric Centre or that
mental hospital within 28 days after the date of the hospital order, in the
event of the hospital order being made by the court or magistrate. (Amended 37
of 1973 s. 3)

(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. [cf. 1959 c. 72 s. 60 U. K.]

"sentence of imprisonment" (監禁刑罰)