HKSAR v. JUTTING, RURIK GEORGE CATON

CACC 361/2016

[2018] HKCA 189

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 361 OF 2016

(ON APPEAL FROM HCCC NO. 183OF 2015)

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J U D G M E N T

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Hon Lunn VP (giving the Judgment of the Court) :

1.  By an amended Notice of Motion filed with the Court on 20 March 2018 Mr Gerard McCoy SC, for the applicant, invited this Court to certify, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, that two points of law of great and general importance arise from the decision of this Court, dated 9 February 2018, refusing the applicant’s application for leave to appeal against his convictions on 8 November 2016 of two counts of murder, following a trial by Deputy High Court Judge Stuart‑Moore and a jury.

2.  In the result, although Mr John Reading SC, for the respondent, informed the Court in his submissions that the respondent opposed the application and at one stage the applicant informed the Court that he wished to have an oral hearing, the parties have informed the Court that they consent to the application being dealt with on the papers.

3.  There is no dispute that the only issue that arose at trial was that of diminished responsibility.

4.  Mr McCoy identified the following two questions as encapsulating the points of law of great and general importance contended for:

Question 1

“ Is it a misdirection in law, for the purposes of the defence of diminished responsibility provided by s. 3(1) Homicide Ord Cap. 339, to direct the jury that only a disorder of the mind as a psychiatric diagnosis can constitute an ‘abnormality of mind’? ”

Question 2

“ Is it within the expertise of medical professionals to determine the question of whether an accused was ‘substantially impaired’ for the purposes of the defence of diminished responsibility provided by s. 3(1) Homicide Ord Cap. 339? ”

The applicant’s submissions

5.  Mr McCoy submitted that a “disorder” of the mind was not synonymous with an “abnormality of mind”. A direction that proof of the former was required before the jury could be satisfied of the latter was erroneous.  Then, it was submitted that it was impermissible to allow the psychiatrists called by the prosecution to express their opinions as to whether or not his mental responsibility for his acts was substantially impaired at the material time.

The respondent’s submissions

6.  For the respondent, Mr John Reading submitted that the judge’s directions in respect of a “disorder” and a “disease” of mind arose from the evidence of Dr Richard Latham, who had been called in the defence case.  Dr Latham equated the medical term “disorder”, as used in the Diagnostic and Statistical Manual of Mental Disorders, 5^th Edition with “disease”.  Mr Reading suggested that, even if “traits” fell within the meaning of “disease”, it was of no consequence since all the experts agreed that the applicant was suffering from one or more diseases of the mind which constituted abnormality of mind.  The crucial issue was whether or not that abnormality of mind substantially impaired the applicant’s mental responsibility for his acts of killing.

7.  Mr Reading submitted that the law clearly permits an expert to give evidence on the ultimate issue, provided that the judge makes it clear to the jury that they are not bound by the expert opinion and that the issue is for them to decide.

A consideration of the submissions

8.  Section 3 (1) of the Homicide Ordinance (“the Ordinance”) provides:

“ Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent cause or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”

9.  Clearly, before the jury considered the issue of whether or not the defendant’s mental responsibility for his acts and omissions in killing was “substantially impaired”, proof was required that he was suffering not only from an abnormality of mind but also one which had its aetiology in one of the stipulated circumstances.

10.  For the applicant, Dr Latham and Professor Derek Perkins testified that in their opinion the applicant suffered from four disorders of the mind, namely: alcohol abuse, cocaine abuse, sexual sadism and narcissistic personality.  For the respondent, Dr Oliver Chan and Dr Kavin Chow testified that the applicant suffered from alcohol abuse disorder and cocaine abuse disorder.  Dr Chow was also of the opinion that the applicant suffered from sexual sadism disorder.  Dr Chan’s opinion was that, although the applicant suffered from traits of sexual sadism and narcissistic personality, he did not have those disorders.  Dr Chow shared Dr Chan’s opinion that the applicant had traits only of narcissistic personality.

11.  There was no dispute at trial that the opinion of the doctors that the applicant suffered from a “disorder” was the equivalent of finding that he suffered from such a “disease” of the mind.  It was not the defence case that an opinion of a doctor that the applicant suffered from traits, but not a disorder, of sexual sadism and narcissistic personality was sufficient to establish that requisite aetiology.  There was no challenge to Dr Chan’s evidence to that effect.  There was no such evidence led at trial.  Rather, it was suggested that he was wrong in not diagnosing those disorders.  As the judge directed the jury, the “crucial issue”, if the jury accepted that the applicant was suffering from an abnormality of mind arising from any inherent cause or disease, was whether or not that substantially impaired his mental responsibility for his acts of killing.

12.  It was in those circumstances that, stating that we were satisfied that the judge’s directions correctly applied the law to the evidence adduced at trial, we said in the judgment of the Court:[1]

“ To be satisfied that the applicant suffered from an abnormality of mind arising from disease or inherent causes in relation to sexual sadism and/or narcissistic personality the jury was required to be satisfied that the applicant suffered from sexual sadism disorder and/or narcissistic personality disorder. The evidence that the applicant had traits only of sexual sadism and narcissistic personality, rather than disorders, was an insufficient basis to be so satisfied.”

13.  We are satisfied that no point of law of great general importance, as identified in Question 1, arises from our decision.

14.  None of the doctors who testified at trial was permitted “to determine the question” whether the applicant’s mental responsibility for his acts of killing was substantially impaired.  As the judge made clear repeatedly in his directions, that was a matter for the jury.  Dr Chan and Dr Chow testified expressing negative opinions in that respect.  They did so, only after expressing the opinions that the applicant should have been able to exercise judgment not to act as he did.  By contrast, although Dr Latham testified that “…at the moment of the killings, the mental disorders that I’ve diagnosed combined to impair, and I think substantially, his ability to control his behaviour”, he declined to give any opinion as to whether or not the applicant’s mental responsibility for his acts was substantially impaired.

15.  As we stated in our judgment, the inferences to be drawn as to the opinions of the different doctors in respect of the ultimate issue was obvious from their testimony as to the primary issue of the ability of the applicant to control himself.  In those circumstances, we were satisfied that evidence of their opinions was admissible, but that the judge was required to direct the jury, as he did, that it was a matter for the jury to determine whether or not the applicant’s mental responsibility for his acts of killing was substantially impaired.

16.  We are satisfied that no point of law of great general importance, as identified in Question 2, arises from our decision.

Conclusion

17.  For the reasons that we have given, we refuse to certify that points of law great and general importance arise from our decision.

[1] HKSAR v Jutting (CACC 361/2016; unreported, 9 February 2018) at paragraph 51.