HKSAR v. LO CHUN SIU

CAC C 368/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 368 OF 2010

(ON APPEAL FROM HCCC NO. 59 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (giving Reasons for Judgment of the Court):

Introduction

1.  On 7 October 2010 the applicant was convicted of the offence of murder after trial before Macrae J and a jury and sentenced to life imprisonment.

2.  On 26 July 2012, we allowed his application for leave to appeal conviction, treated the hearing of the application as the appeal, allowed the appeal, quashed the conviction and ordered that he be retried upon a fresh indictment for that alleged offence of murder.  We said that we would give our reasons and this we now do.

The facts

3.  On 24 June 2009 the applicant killed his mother, Mdm Kwok Yuk-kuen, at her apartment in Tuen Mun, where she lived with her husband, the applicant’s father.  The applicant was then aged 24 years.  The fact that he had attacked her and caused her death was not in issue.  The issues at trial were whether it was proved that he had intended to kill or to cause her serious bodily harm and, if so, whether his defence of provocation was negatived.

4.  A defence which was not run was diminished responsibility and it is the issue of diminished responsibility upon which this appeal concentrated.

5.  The applicant was an only son.  When he was aged about 6 years he was diagnosed with attention deficit hyperactivity disorder (ADHD), to an extent that he required and received psychiatric treatment, including medication, for two or three years.  But that medication was stopped by his parents because they thought it was adversely affecting his general progress.  The evidence at trial of his father was that after he was taken off the medication, the applicant began to exhibit signs of bad temper and this persisted throughout his youth and into the stage when he started working.  His moods lead to friction at work and an inability to hold down a job.

6.  This inability to keep a job led to considerable tension between mother and son, so much so that in about September 2008 his mother evicted the applicant from the family home.  It was a relationship pockmarked by much scolding of the applicant by his mother.  Not surprisingly, the applicant then encountered difficult living circumstances, found himself residing in a men’s hostel and once again had employment difficulties.  He visited his parents from time to time but these visits almost invariably ended in renewed friction between mother and son.

7.  The evidence from the father was that the mother’s discontent with her son’s behaviour was augmented when in early 2009 the applicant introduced his new girlfriend to his parents.  It seems that the mother disapproved of his girlfriend or of the fact that, in her eyes, the relationship distracted the applicant from securing steady employment.  All the while, the applicant’s financial circumstances were poor and he would turn to his parents for assistance which the mother would sometimes provide in the form of pocket money.  When he came home to visit his parents, his mother would cook for him; so it may be that the harsh aspects of her conduct were born of a genuine desire that he secure stability for himself.

8.  Be that as it may, in the spring of 2009 he borrowed a mobile telephone from his mother but failed to return it.  The same thing happened with a notebook computer and on another occasion the mother was angry because he took away a brand-new mobile telephone without permission.  On about 15 June 2009, the father received a telephone call from the applicant’s girlfriend in which she said that the applicant was having emotional problems, needed to see a doctor and wanted to borrow $500 for that purpose.  But the mother discovered that the doctor story was apparently not true and when the girlfriend called again the same evening, the mother scolded her, and then scolded applicant for stealing, as she put it, the new mobile telephone.

9.  On 16 June the applicant sent his father two text messages by mobile telephone.  The first said that he, the applicant would not “contact you people any more in the future.  Don’t give us any phone call any more in the future.”  The second said:

“Have you ever eaten rubbish for three days? In the past you gave me up twice. Had it not been the case that there were no other alternatives and [my girlfriend] asked me to borrow money from you, I would not have given you a call. That day, I even did not know that you had scolded [her]. If my children want to kill me in the future, I will keep him/her staying at my home.”

10.  Another message was sent the following day, 17 June and said: “I will not give you people any trouble in the future.  Everything is over.  Just treat it as I have owed you people in this life.  I will repay you people in the next life.”

11.  On 22 June, the applicant telephoned his mother and asked to borrow $200 from her, saying that he only had four dollars left to get to work.  The mother was apparently very unhappy and scolded the applicant over the telephone and asked him why he had stolen her mobile phone.

12.  At about 7.30pm on the night of 24 June, the father returned home and found his wife lying unconscious on the living room floor, she covered with blood.  After the ambulance was called, she was conveyed to hospital where she was certified dead on arrival.

13.  It was common ground that after the killing, the applicant removed his bloodstained clothes, took his mother’s mobile telephone and a trolley away from the flat, walked down 19 floors and then went to a shop, not wearing a shirt, and sold the telephone which still had blood on it.  Indeed, the sales lady asked him what it was on the telephone keypad and the applicant told her quite bluntly that it was blood and she also saw that there was a bloodstain on his right cheek.  The relevance of this point is that the defence suggested “that no one who was thinking straight would go into a shop without a shirt on and sell a phone which still had the blood of his victim on it”: (see page 4 of the summing-up).

The defence at trial

14.  The defence was that the applicant went to his parents’ abode on the day in question in a perfectly peaceful frame of mind, armed with two Buddha statues to give to his parents, one for Father’s day, the other for Mother’s Day.  His father was out at work.  His girlfriend was waiting downstairs for him at a McDonald’s restaurant.  She did not come up to the flat because they knew that his mother did not like her.  Upon arrival at the flat, he presented his mother with the ornaments and then took a shower.  She cooked him some noodles.  He had with him a multipurpose knife which he would use to peel fruit or open packets of noodles, for example.  He placed that knife on the computer desk in the living room and, having showered and eaten, he watched television.  But unpleasantness soon developed for, according to the applicant’s testimony, the mother asked if the girlfriend was pregnant and he said “yes”; whereupon the mother asked about the possibility of an abortion and suggested that the applicant believed more in his girlfriend than in his family and the applicant then picked up the knife and he said that he then slipped and cut her by her mouth and could not remember very much after that.

The summing-up

15.  What in fact took place was what the judge described as “a ferocious, frenzied attack.”  Indeed, as the judge remarked, in his first interview with the police the applicant stated that he had gone mad and cut his mother chaotically.  The cause of death was multiple stab and cut wounds to the neck: four major blood vessels in the neck were significantly injured and in addition to a large number of cuts and stab wounds to the neck, there were cut wounds to the fore-arms and hands, consistent with defensive injuries whilst fending off a weapon.

16.  The judge provided the jury with directions as to the law of provocation, in the course of which he told them that “an ordinary person is simply a person who has the powers of self-control to be expected of an ordinary sober person who was of the defendant’s age and sex and other special characteristics.”  The special characteristic which the judge invited the jury to consider in this context was the attention deficit hyperactivity disorder.  It has not been necessary for us to consider the question whether the special characteristic was indeed relevant to the objective limb of the provocation test.  For present purposes it suffices to say that it was considered relevant to the provocation defence and although the judge remarked that there was no medical evidence as to whether or not the applicant was still suffering from the condition, he drew the attention of the jury to the evidence of the father that after the applicant had been taken off medication as a child, he gradually began to exhibit signs of bad temper.

The psychiatric reports

17.  In June 2011, this Court, differently constituted, in response to comments made by the applicant at that appellate hearing about medical reports in relation to his childhood condition, raised the question whether any medical reports had been prepared in respect of the applicant.  The applicant himself produced the two psychiatric reports to which we next refer and as a result the hearing was adjourned so that clarification of one of them might be sought.  The two reports had been in the hands of counsel appearing for the applicant and for the prosecution at trial (neither of whom are counsel who appear upon the appeal). 

18.  The first report in time was that of Dr Yu, who, at the request of those acting for the applicant, examined him for one and a half hours in July 2010.  He recorded the childhood diagnosis and the stopping of treatment against doctor’s advice and said that it appeared that the applicant had fully recovered from the disorder once he passed childhood.  He could not find any conclusive argument to support the suggestion that at the time of the commission of the offence the applicant was suffering an abnormality of mind.

19.  The second report in time was that of Dr Choi who prepared his report at the request of prosecuting counsel.  He had examined the applicant on 13, 16 and 20 September 2010 – apparently, therefore, a somewhat more extensive examination than that conducted by Dr Yu though that fact does not of itself necessarily mean that his diagnosis is to be preferred.  He was satisfied that not only had the applicant suffered from ADHD but that he still so suffered at the time of the examinations and did so suffer at the time of the offence.  He described the disorder as a disease, amongst the characteristics of which were poor temper control and impulsivity.  In the applicant’s case: “… the symptoms persisted after entering adulthood.  Because of the extensiveness and pervasiveness of the symptoms, nearly all aspects of his developments, including academic work (possibly intelligence), self-image, social skills, as well as his occupational functioning, have been significantly impaired.”

20.  Dr Choi then moved on to deal in his report with a quite different issue, namely, disassociative amnesia which in his opinion did not play a significant part in the applicant’s capacity to form the criminal intent which has to be proved to establish the offence of murder.

21.  What Dr Choi did not do in that report was to offer a conclusion on the question of diminished responsibility.

22.  It is at this stage worthwhile reminding ourselves of the elements of that defence.  The burden in such cases is upon an accused to show that “he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts … in doing…the killing.”: section 3 Homicide Ordinance Cap 339.

23.  It is obvious that Dr Choi was saying that at the time of the killing, the applicant was suffering from an abnormality of mind induced by disease.  So the remaining and vital question was whether he said that that abnormality was such as substantially impaired the applicant’s mental responsibility for his acts in doing the killing.  He did not say that in terms but in its reference to poor temper control and impulsivity and to significant impairment of all aspects of the applicant’s development, the report would seem, on its face, to come close to that.  Whether he meant that is another matter to which we shall shortly turn, but we would have thought that the issue merited further exploration with Dr Choi.  It is clear from the summing-up that the learned trial judge was not alerted to the existence of this report and it is clear as well from the testimony which was put before us for the purpose of the appeal that counsel then acting for the applicant did not explore the matter further with Dr Choi.

24.  In an affidavit placed before us, counsel who appeared at trial for the applicant has stated frankly and succinctly the view which he then took.  He did not understand the reports as suggesting that ADHD had caused the applicant to lose his self-control but, he goes on to say: “ ... they did suggest that in spite of his amnesia the applicant knew what he was doing at the time.  In those circumstances it was my view that there was no benefit to the applicant in calling either of the doctors, and in fact to do so would remove the defence of lack of intent which was available on the applicant’s instructions.  Neither did I consider it appropriate to call for further reports.  I am fortified by the knowledge that [both leading and junior counsel originally instructed upon appeal] could find no grounds of appeal on the papers before them.”

25.  Counsel who took that view is a highly experienced trial counsel, astute in the tactical decisions which he makes and it may be that it is merely the benefit of hindsight and of the new evidence which we are asked to admit that moves us to query counsel’s reading of Dr Choi’s report of September 2010.  As we have explained, our own reading of it is markedly different.  Nor are we sure why a defence of diminished responsibility in this case would have been inconsistent with the defence of lack of intent; and in any event, on the facts of this case, the defence of lack of intent was one which could never have stood a real chance of success, absent some mental impediment.  But we should state, in fairness to counsel, that he has not had an opportunity of answering our misgivings and we should also emphasise that no suggestion of incompetence has been advanced.

The new evidence

26.  After the matter was before this Court, differently constituted, in 2011, those acting for the applicant wrote to Dr Choi seeking the clarification which, as we say, might have been sought before trial.  In a short memorandum dated 25 July 2011 what he says is this:

“Despite [the fact that the applicant] was still suffering from [ADHD] at the material time of the offence, I don’t think the illness has affected his mental capacity to form intent to murder or to do seriously bodily harm … .

[The applicant] was remarked to be an impulsive person (paragraph 6 of my last report), and I believe that his ADHD actually had significant contribution on the impairment of his impulse control and mood regulation.  It would be fair to say that because of the illness, he is comparatively easier to be provoked.  However, there is not enough ground to say that he has suffered from an abnormality of mind that could have substantially impaired his mental responsibility for his act of killing his mother.”

27.  Without the benefit of hearing Dr Choi on the point, we confess to some difficulty in reconciling the last sentence of the second paragraph with the first sentence of that paragraph. The first sentence of that paragraph seems to us to suggest a substantial impairment of the applicant’s mental responsibility for his act in doing the killing.  That there is accepted by Dr Choi at the material time there was an abnormality of mind seems beyond question.  So we are puzzled by the concluding sentence.

28.  Be that as it may, having received Dr Choi’s further comments, those acting for the applicant decided to seek a further opinion and to this end they secured a report from Dr Cheung Hung Kin, dated 15 November 2011, the admission of which fresh evidence is sought pursuant to the provisions of subsection (1) of s 83V of the Criminal Procedure Ordinance Cap 221, to which provisions we will later turn.

29.  It is not necessary to go into the detail of Dr Cheung’s report save to say that he states that:

(1)   “There can be no argument that [the applicant] has been suffering for almost the whole of his past life from a mental disorder called [ADHD]”;

(2)   the symptoms of the disorder include impulsivity;

(3)   an impulsive person “lacks the capacity to either control the expression of his emotions or postpone gratification of his desire” and that in the applicant’s case “ … his impulsivity is characterised by a poor capacity to control and restrain his emotional outbursts, so that he is frequently involved in fights, verbal conflict, banging on to table computer, kicking things, deliberately turning on the tap forcefully and even attempting to jump out of window in front of his mother.”; and

(4)   at the material time the applicant’s condition satisfied the criteria of diminished responsibility as defined by s 3 of the Homicide Ordinance.

30.  Whether that opinion is based upon accurate factual premises or is sustainable in its conclusion is not for this Court at this stage to address.  It suffices that it presents an analysis which cannot be said to be divorced from the applicant’s established history or from the apparent trend of Dr Choi’s reports.  No doubt, were the matter to be canvassed for factual determination, those acting on behalf of the respondent would wish to secure the comments (or further comments) of a psychiatrist and were he to disagree with Dr Cheung’s analysis and conclusion, to cross-examine Dr Cheung and to adduce the testimony of its own expert.

Analysis

31.  In the light of the history which we have particularized, it is contrary to one’s instincts of justice to allow matters to stand as they are.  The defence of diminished responsibility may, if fully explored, ultimately not be made out.  But it may be.  This is not one of those cases in which a psychiatrist comes up with some theory for which there is no palpable factual or historical basis.  There is clear evidence which emerges from an entirely uncontested foundation which is bound to make the reader or listener wonder whether at the time of the killing, there was something psychiatrically amiss with the applicant: that uncontested foundation is constituted by the fact that a mental disorder plagued the applicant many years before the offence and did so to such a degree as to require psychiatric treatment.  So no one has plucked this ailment from thin air.  Secondly, the ailment has impulsivity as a characteristic and it might well be argued that impulsivity was a hallmark of the attack which took place – an attack described by the judge as a frenzy.  And, in addition, we were informed in the course of the hearing that the applicant has been under treatment in Siu Lam Psychiatric Centre for this very condition since his conviction.  Now, there may be a quite different explanation for what happened at the time of the killing and we know that the psychiatrist originally engaged on behalf of the applicant thinks nothing of the suggested defence of diminished responsibility.  But the fact of the matter, for present purposes, is that a clear foundation for the defence exists – and in our judgment existed at the time of trial – and in our opinion the interests of justice require that it be explored before a jury at trial.

32.  Subsections (1) and (2) of section 83V of the Criminal Procedure Ordinance provide as follows :

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice-

(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c) subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice to subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if-

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

33.  There is no need to address the questions which subsection (2) raises.  All that is required for the admission of evidence under subsection (1) is that it is necessary or expedient in the interests of justice to admit it.  That subsection (2) does not restrict the Court’s power to receive further evidence under subsection (1) is evident from a reading of the provisions and in particular the phrase in subsection (2) “Without prejudice to subsection (1)”; and from the decision of the Court in The Queen v Ng So-ching [1989] 2 HKLR 389 at 393-394.

34.  As was suggested in that case, this Court will normally be reluctant to admit fresh evidence as to the mental state of an accused where the defence at trial had deliberately chosen not to do so.  But in this case, that choice appears to have been made on the basis of a misreading of a psychiatric report; at the least it was an interpretation of the report with which we respectfully but firmly disagree.  Nor can it be said that the interpretation placed upon it by counsel who made that choice has ex post facto been vindicated by the psychiatrist’s clarification memorandum, for it is a memorandum which appears to us to be self-contradictory and has much in it which seems to support the suggested defence of diminished responsibility.  In these circumstances, we decided that the fresh evidence, in the form of Dr Cheung’s report, should be admitted.

35.  We emphasise that this decision is not to be taken as an indication of some new or loose approach by this Court to the admission of fresh evidence or to a willingness by the Court to second-guess tactical decisions made by trial counsel.  It is a decision which emerged from a highly unusual fact- specific history.

36.  Mr Ross realistically recognized that his original stance that we should substitute a manslaughter verdict, was an unrealistic stance.  That might be an appropriate course in a case in which the probative effect of new evidence which is admitted is common ground as between prosecution and defence. But that is not this case, for which reason the only appropriate course was to quash the conviction but to order a retrial upon a new indictment alleging the offence of murder of the applicant’s mother.  That is the order which we made.