HKSAR v. NG YAN KIN

HCCC 329/2018

[2020] HKCFI 2693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2018

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R U L I N G

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Introduction

1.  The defendant, Ng Yan-kin, is charged with one count of Murder, in that it is alleged that he killed Li Sin-heng on 16 September 2017, by stabbing her multiple times.  Ms Li was 20 years old at the time of her death and a student of the School of Nursing at Hong Kong Polytechnic University.  She lived with her parents at Island Resort in Siu Sai Wan.  The defendant was 22 years of age, had just graduated with a degree in civil engineering from the same university and had been working as a civil engineer since July 2017.  He lived with his parents in Tin Wan House on the Shun Tin Estate in Kwun Tong. 

2.  The defendant and Ms Li had been in a relationship since July 2016 and were still together at the material time in September 2017.  The relationship had not been going smoothly for some time.  The evidence suggests that the defendant was a possessive boyfriend, who was jealous of Ms Li mixing with other men and who attempted to control with whom she associated.  She was not happy about this.  In the early hours of 16 September 2017, the couple had been together and had a meal during which the conversation had returned to a number of issues over which they disagreed, including a continuing issue of whether Ms Li should attend the university orientation camp and also, the return (or destruction) of video clips of an intimate nature.  The audio evidence at P1 & P5, suggests that the relationship deteriorated over a period of three hours in the early morning of 16 September 2017.  By the afternoon of the same day it had deteriorated further as it appears that Ms Li had scolded the defendant for not destroying a particular intimate clip which he must have suggested he had already done at some earlier stage.  Not everything has been recorded of the events that night but one reading of the audio tapes and CCTV suggests that the relationship had run its course and they were splitting up although there is no direct evidence of this.  Certainly their body language on the videos captured at that time do not suggest a couple in love but equally neither does it suggest a couple at odds with each other.

3.  At 15:43 on the afternoon of 16 September 2017, the defendant purchased a large kitchen knife from a JHC store within the Island Resort mall.  At 15:55, Ms Li left home and went to the Island Resort bus terminus in order to make her way to her part-time job as a waitress.  The CCTV at P7 shows the defendant also in the bus terminus but some distance behind Ms Li.  She enters the bus first followed by the defendant.  It is not known at what stage she is aware of the defendant’s presence or, indeed, whether this meeting was pre-planned, but they eventually sit together on the upper level.  This is at 15:58.  Between then and 16:04, they appear to be talking to one another.  At 16:04:22, the defendant, without warning, takes out the kitchen knife and stabs Ms Li repeatedly over a period of just 20 seconds and then stabs himself, breaks a window and jumps out of the top floor of the bus onto the pavement below.

Application

4.  The defence have served expert evidence in the form of a psychiatric report of Dr Robyn Ho dated 18 June 2020, upon the prosecution under section 65DA of the Criminal Procedure Ordinance, Cap 221.  They had originally also served expert reports from Dr Wong Yee-him, a psychiatrist and Ms Lau Lok-yan, a clinical psychologist, but they no longer seek to rely upon those.  They seek to rely upon Dr Ho’s expert opinion alone in respect of the partial defence of diminished responsibility.  This is the only defence to be advanced.

5.  This is an application by Mr Derek Lai on behalf of the prosecution, to be allowed to call rebuttal evidence at the end of the defence case in respect of that issue.  That evidence is to consist primarily of psychiatric reports by Dr Harriman and Dr Liu.  There is a possibility of a third psychiatric expert but whether or not that evidence will be relied upon does not affect this ruling.  Within this ruling, I will simply refer to all such evidence, both from the defence and the prosecution, as expert evidence.

6.  Mr Lai submits that there is ample authority for the course of action he seeks.  He maintains that it has become a practice in the High Court for experts on this issue to be called after the close of the defence case by way of rebuttal.  He supports that contention by reference to HKSAR v Jutting CACC 361/2016; HKSAR v Husnain Safdar CACC 39/2018; HKSAR v Fok Lap Yin Ian Lee Christoffer CACC 291/2014 and HKSAR v Lau Kai Hoi CACC 62/2011, relying upon references therein to evidence given ‘in rebuttal’ but which do not actually allude to the timing of the calling of that evidence or to any submissions as to the propriety of such a course of action.  For that he relies upon R v Clough [2009] QSC 231 in the Supreme Court of Queensland (a trial at first instance); R v Hughes [2012] QCA 208, an appellate decision of the Queensland Court of Appeal and R v Hanson [2005] EWCA Crim 1142, a decision of the Court of Appeal of England and Wales.  Only in Clough supra, does the Court allude to the timing of the evidence as being after the close of the defence case and that case can, in any event be distinguished.  In Clough, it was accepted that the defendant was suffering from a psychotic disorder.  The real issue before the Court was one of self-induced intoxication, which, under section 28 of the Criminal Code of Queensland, did not allow the defendant to avail himself of a defence of diminished responsibility unless he could show on a balance of probabilities that the mental disease was of such severity that it deprived him of capacity regardless of the intoxication.  How this issue arose, whether it was foreseen prior to trial and the extent of any admissions as to his abnormality of mind, cannot be ascertained from the judgment and therefore this court does not know why or in what circumstances the rebuttal evidence arose such as to warrant an exercise of judicial discretion to allow it to be called at the end of the defence case.

7.  The prosecution was given the opportunity to address the Court further upon this application and provided a helpful submission relying upon further authorities from Australia and a decision of the Hong Kong Court of Appeal in HKSAR v Y.H.M. CACC 82/2016 (“YHM”).  Unfortunately, YHM is of little assistance to the Court in the present circumstances as the underlying offence was that of indecent assault. The issue before the Court was in respect of the mental capacity of two very young vulnerable witnesses and not that of the defendant and there was no issue of the burden of proving any defence upon the defendant.  For the reasons approved by the Court of Appeal, the judge at first instance allowed the calling of evidence in rebuttal at the end of the case for the defence.  In coming to that view, perhaps the most important aspect of the decision of the Court of Appeal was that ultimately, the issue was whether or not the Judge’s approach was unjust to the defendant and therefore rendered the trial unfair?

Common law principles

8.  There is a general and well-established principle that the prosecution will call all of the evidence upon which it seeks to rely within its own case, “if it then be available”.  This has been referred to both as the ‘ex improviso’rule.  This should be distinguished from series of cases where the prosecution has sought to ‘split its case’for they are not the same and yet the two appear to have been the subject of some overlap.  No matter how it is referred to or the purpose for which it is to alter the usual chronology for the calling of evidence, the established legal principle is that if the prosecution can reasonably foresee that a particular piece of evidence has to be adduced to prove the offence, they must produce the evidence to the court as part of their case and should not wait until the defendant has finished giving evidence[1].  The discretion of a trial judge to allow evidence in rebuttal, which is an exception to that rule falls within the ex improviso rule.  There have also been situations in which it has been ruled in the interests of justice for the prosecution to split its case but the discretion of the trial judge in either situation is not unlimited.  It is confined primarily to cases where the prosecution could not reasonably have been expected to produce the evidence as part of their case[2] but has been extended to situations where the prosecution has shown good reason for not producing the evidence within their own case, otherwise the trial judge should generally not allow it to be called.  Where an application is made at the beginning of the proceedings, it clearly does not arise ex improviso.  There must be some other good reason to allow the prosecution to split its case.  It would appear that the Court should ask itself the following:

a.  Is the evidence in question required as part of the prosecution case to establish a fact in issue or to establish evidence in support of a fact in issue?  If so, then it should generally be called within the prosecution case.

b.  Was this evidence foreseeable?  If so, it should generally be called within the prosecution’s own case.

c.  For what purpose is the evidence to be called?

d.  If it does not arise ex improviso, is there some other good reason to allow the prosecution to split its case and to call the evidence sought to be produced at the end of the defence case?

e.  Where does the interest of justice lie?  Should that evidence be allowed to be called after the close of the defence case under an exercise of judicial discretion.

Is the evidence required to prove the prosecution case?

9.  In considering whether the common law rule should be abrogated where the partial defence of diminished responsibility is to be raised, as is submitted by Mr Lai, the Court should first consider whether the prosecution should properly call such evidence in order to prove their case or to disprove or undermine the case for the defence.

10.  In strict terms, it is possible that the prosecution does not require expert psychiatric evidence to prove their case of murder save that they may only prove intent to kill or to cause grievous bodily harm by asking the jury to draw an inference from proven facts.  They have no direct evidence of intent.  Indeed, the evidence is to the opposite i.e. an intention to kill himself rather than to kill or harm the deceased.  If all other things were equal and no defence was raised by the defendant, they may very well approach a straight forward case of murder in that way.  But all other things are not equal in this case and the issue of his mental capacity has been raised.  Whether that is raised by means of the partial defence of diminished responsibility, or in some other manner which brought into play the defendant’s mens rea, it might very well have been necessary for the prosecution to rely upon psychiatric evidence in support of their case especially as we know the defendant was hospitalised after the incident, initially in Castle Peak Hospital Psychiatric Unit and thereafter on 18 October 2017, he was remanded to Siu Lam for a short period of time until 24 February 2018.  The defendant’s state of mind was and is in issue.  It cannot be ignored.  The facts of the case place it squarely before the jury.  It is therefore incumbent upon the prosecution to adduce a case sufficient to be able to ask the jury to draw an inference from proven facts, which must be the only reasonable and irresistible inference to be drawn.  Unless it seeks to do that in reliance upon the cross-examination of the defendant and/or the defence expert, the prosecution could not properly seek to ask the jury to draw that inference without more.  Any such evidence would have obviously been the expert evidence of the state of mind of the accused immediately after the events in question from Dr Harriman or at least within a reasonable period thereafter from Dr Liu.

11.  If I am correct in that then the prosecution should properly call such evidence within its own case.

Was it foreseeable?

12.  Even if I am wrong in taking the view, on the facts of this case, that it should have been foreseen by the prosecution that there was a need to advance evidence of the state of mind of the defendant in this case where it sought to prove the intention of the defendant by the drawing of an inference, the issue of diminished responsibility was raised very early in the proceedings.  The prosecution were aware in advance that this was the only defence to be run.  They knew this was to be an effective trial and that there was no suggestion that the defendant intended to plead guilty to murder.  They accept that they would need to rely at some stage upon the evidence of Dr Liu and, as events have unfolded, now foresee that they will also need to rely upon the evidence of Dr Harriman.  They must do so in order to ask the jury to find that the defendant has not proved on a balance of probabilities that he was suffering from an abnormality of the mind such that his mental responsibility for the killing was diminished.  There is therefore no question but that this issue was foreseen.  This application does not therefore fall to be considered under the ex improviso principles but instead as an application to split its case.

13.  The prosecution simply submit that its proper place is after the defence case and not as part of their own case because they do not need it in order to prove their case against the defendant.  They say they do not need to call either expert to prove their case.  They say they can do that by calling the medical evidence and evidence adduced by way of admitted facts and ask the jury to infer the necessary intent given that the defendant admits killing Ms Li.  The prosecution submits that they are entitled to call the evidence of Dr Liu and Dr Harriman in rebuttal i.e. at the close of the defence case because it is just that, rebuttal evidence and rebuttal evidence must go last.  The argument is a simple one.  It is for the defence to prove on a balance of probabilities that the defendant’s mental responsibility for his acts was diminished at the time of the killing and so their answer to that, once raised, must be evidence in rebuttal.  I think that is, with the greatest respect to Mr Lai, far too simplistic, as can be seen from the comments above.  In all other situations, where an evidential burden is placed upon the defendant, there is no question of splitting the prosecution case only when such burden has been satisfied.  I see no good reason why, without more, there should now be an accepted practice that the prosecution may do so automatically where the legal burden shifts in cases of diminished responsibility.

For what purpose is the evidence to be adduced?

14.  As already mentioned, Mr Lai seeks simply to answer the matter of diminished responsibility once raised by the defence, which is why he says this is clearly rebuttal evidence and as rebuttal evidence it should properly be adduced after the defence case.  But what Mr Lai additionally seeks to show is that the defendant had the requisite intent.  Why else would he wish to rebut the evidence of diminished responsibility.  He does that, he says, by calling his own psychiatric experts to undermine the defence evidence upon the issue to show they have not established, to the standard required, the burden placed upon them.  He maintains his duty goes no further than that.  There is no requirement to negative it or to disprove the defendant did not suffer any abnormality of mind to any other standard and not, he says, to the criminal standard.

15.  But implied in that argument is that such evidence is adduced to show that the defendant had the necessary intent for murder and therefore he has placed upon his shoulders the usual burden and standard or proof in that regard.  If that is so, I cannot see why that should not be done within his own case unless there is good reason to do otherwise.

Is there good reason for the Court to exercise its discretion to allow the prosecution to split its case?

16.  What prejudice would the prosecution suffer in being required to call their expert evidence within their own case? Mr Lai submits that, without hearing the defendant and without hearing the defence expert, they do not know what issues they need to address in chief.  He submits that matters may take an unforeseen turn during the defence case which cannot be met within his own case.  Mr Lai underestimates his own ability.  This is the very situation Counsel faces in every criminal case in Hong Kong.  Indeed, Counsel are often in a worse position as they have not been provided with defence evidence in advance, as they must now do in the courts of England and Wales by means of a defence statement.  In this case however, the prosecution has in its hands no fewer than five opinions, one from a clinical psychologist and eight from four psychiatrists.  All of them have dealt with the defendant directly.  One of them has dealt with him consistently over the last three years.  Realistically, there will be very little that the defendant has not already disclosed to those individuals meticulously detailed in their several reports.  The prosecution is therefore aware of what the defendant has to say upon the matter and is in a position to cross examine him should he alter his evidence.

17.  Unfortunately, the report of Dr Ho has been poorly worded in places and has allowed in a significant amount of what could be described as inappropriate comment from lay witnesses.  It is also true to say that the clinical aspect of the report details the defendants current state of mind but there has been something of a leap of faith by the doctor in forming an opinion from that current assessment to extrapolating the situation at the relevant time and there will inevitably need to be some examination of that leap of faith.  But that is something Mr Percy must also address and no doubt Mr Lai will have an expert in attendance when that comes to pass.  If evidence is placed before the court which could not be foreseen and which requires a response from the prosecution to assist the jury in their deliberations, at that stage it is open to the prosecution to ask to recall their expert witnesses to address it in the normal way.

Where does the interest of justice lie?

18.  The practice, if indeed it is a practice, to automatically call expert evidence in rebuttal (or to split its case) in cases of diminished responsibility, gives the prosecution the last bite of the cherry in circumstances which may not necessarily be laid at the door of the defence for raising issues at the last minute and without warning which might give rise to ex improviso principle.  This is not a situation where the defendant raises an issue at the last minute which the prosecution could not possibly have foreseen.  This was known by both parties and both parties have prepared for it by seeking expert evidence.  The prosecution has had ample opportunity to formulate its case against the defendant and it does have the burden of proving it.  Why should this exceptional course be allowed?  Is it in the interest of justice to do so or can justice be achieved by some other route?

19.  The important issue is that the jury are given all of the facts required in as simple and straightforward a manner as possible so that they can properly and fairly decide upon the guilt or innocence of the accused.  In a case where the partial defence of diminished responsibility is raised that necessarily requires assistance from expert witnesses.  In this case from both the prosecution and defence for there is little agreement between the two sides now that the defendant seeks to rely upon Dr Ho alone.  I can find no good reason why the usual common law principles for the calling of evidence should not be followed in the circumstances pertaining to this case.  There may be good reason in other cases where the better course is to call evidence in some other order but I do not find any such reason here. It is clear on the papers that the burden placed upon the defendant will be properly raised and sufficient to go before the jury.  I see no disadvantage to the prosecution in adducing their evidence as to this issue within their own case.  They are not prejudiced by so doing and should any issue arise within the defence case which has not be foreseen then an application to recall a witness can be made and considered in the appropriate manner.  I do not take the same view as Andrews SPJ in R v Pateman (1983) 33 A Crim R 212 at page 218 that the fact such evidence is called last is of no effect.  For the prosecution to be allowed to call their expert evidence at the end of the trial without good reason and to be heard last on the issue, significantly alters the dynamic of a criminal jury trial, which may not be the case before a single judge.  It leaves the jury with the prosecution evidence (and expert evidence at that, and in this case two experts) resounding in their ears, when the defendant has done nothing to warrant it save for having a burden placed upon him in law by reason of section 3 of the Homicide Ordinance, Cap 339, which is already an exception to the usual rule as to the burden and standard of proof.  That is no doubt why this well-established rule has always required the prosecution to show good reason for its application.

Conclusion

20.  The Court thanks the prosecution for their considerable work in this application but must refuse it.  The prosecution may call their expert evidence in respect of the mental capacity of the defendant, whether on the issue of intent generally or upon the issue of diminished responsibility, within their own case.   They have leave to re-visit their application having heard the defence evidence.