HKSAR v. TSIM SUM-KIT, ADA

CACC 153/2021 [2023] HKCA 927

On appeal from [2021] HKCFI 2518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 153 OF 2021

(ON APPEAL FROM HCCC NO 272 OF 2019)

_______________

_______________

________________

J U D G M E N T

________________

Hon Zervos JA (giving the Judgment of the Court):

1.  On 9 June 2023, the applicant filed a Notice of Motion applying to this Court for a certificate to the Court of Final Appeal on the basis that our decision on 19 May 2023, dismissing her appeal against conviction for two counts of murder and two counts of shooting with intent, involved the following points of law of great and general importance:

“1. Does section 3(2) of the Homicide Ordinance (Cap 339) unjustifiably derogate from the applicant’s right of presumption of innocence under the Basic Law and Hong Kong Bill of Rights, and if so, should section 3(2) be read down as imposing only an evidential burden?

2. Does a lies direction need to be given when the prosecution relies on the defendant’s lies and deceit not to prove guilt but to undermine the defendant’s defence, which the defendant has the burden of proving?”

2.  We considered that it was appropriate to decide the application for a certificate on the papers without the need for a hearing.

3.  We dealt with the first question in the Judgment and considered that the point of law it raised had been appropriately addressed by the relevant authorities. We were of the view that the legal burden under section 3(2) had not engaged the right of the presumption of innocence, and if it had, it was a justifiable derogation. The submission in support of the certification for the second question was not specifically advanced before us, although we did address the general principles regarding a lies direction and their application to the circumstances of the present case.

4.  We should add that we are becoming increasingly concerned that applications for a certificate purportedly on a point of law of great and general importance are based on submissions that do not fully reflect the issues and arguments distilled before the Court and sometimes condescend to exaggerate matters that were of little or no consequence or relevance to the point of law in question. As a result, the Court has to disentangle these submissions by addressing matters in great detail and explaining its decision so as to put these matters in their correct and proper context. We also consider that when there is an opposing argument to a proposition being advanced, particularly in the form of a strong line of authority, that it is a serious omission on the part of counsel to simply ignore such argument.

The brief facts

5.  After a family lunch to discuss the division of the applicant’s grandmother’s estate, she invited the family members to continue the discussion in a nearby park, where she shot dead two relatives and wounded two others with a pistol. The applicant then ran to a nearby plaza where she was subdued by security guards. Upon arrest, she said, “Those are my family. There had been some enmity previously, so [I] shot them.” Subsequently, in a post recorded statement, the applicant said, “I wasn’t talking about enmity, I was talking about dispute.”

6.  The applicant did not testify at trial and the defence put forward on her behalf was that the applicant’s mental capacity at the material time was diminished and that she did not have the necessary intent to commit the offences. See paragraphs 6 to 25 of the Judgment.

Question 1

7.  Mr Simon Young, for the applicant, accepted that the authorities both here and overseas were against the challenge to section 3(2) he was seeking to advance, and there was no authority in any jurisdiction which had read down the equivalent of the diminished responsibility provision from a legal burden to an evidential burden. See paragraph 32 of the Judgment. Mr Young did not address these authorities but instead contended that they were of limited assistance because of Hong Kong’s distinct and rigorous approach to the constitutional review of reverse burdens. See paragraph 16 of the Applicant’s Written Submission dated 5 July 2022 (Applicant’s Appeal Submission).

8.  The points Mr Young is making in his written submission in support of this application do not appropriately reflect the content or emphasis of his challenge to the legal burden under section 3(2). The thrust of his submission was that an evidential burden would achieve the same objective and meet the same requirements as a legal burden. He argued that “imposing an evidential burden on the defendant is no less effective than a legal burden to achieve the legitimate aim.” See paragraph 16(e) of the Applicant’s Appeal Submission.

Presumption of innocence

9.  We were of the view that the legal burden imposed on a defendant to prove diminished responsibility stipulated by section 3(2) did not impact on the presumption of innocence and did not violate Article 11(1) of the Hong Kong Bill of Rights. There was a strong line of overseas authorities that had considered and rejected the proposition as set out in the question: R v Lambert, Ali and Jordan; R v Foye; R v Wilcocks; R v McQuade; and The People (Director of Prosecutions) v Heffernan. We extensively reviewed these cases and agreed with their reasoning and conclusion. See paragraphs 53 to 79 of the Judgment.

10.  In examining the partial defence of diminished responsibility in the context of proving the offence of murder, we noted that the burden is on the accused to prove, on the balance of probabilities, the elements of the defence. It is not proof that he is innocent, but rather that his responsibility for the killing was diminished by reason of an abnormality of the mind. The prosecution still has to prove beyond reasonable doubt the actus reus and mens rea for the offence of murder. See paragraph 54 of the Judgment.

11.  We considered that the reverse onus did not require the accused to disprove an element of the offence of murder but to establish an exception or excuse, hence the burden on the accused did not impact on the presumption of innocence. See paragraph 75 of the Judgment. This issue had been discussed in depth in the overseas authorities, particularly by Lord Hughes in R v Foye, which we set out in our analysis at paragraphs 62 to 66 of the Judgment.

12.  Mr Young makes the general statement that the real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. But no reasonable doubt exists in respect of the elements of the offence of murder. Section 3(2) provides that if diminished responsibility is proven then the accused will not be liable to be convicted of murder. As explained by Lord Hughes in R v Foye, the defence of diminished responsibility does not arise until the jury is sure the accused had committed an unlawful killing with the requisite intent but the defence reduces a conviction for murder to manslaughter. See paragraph 66 of the Judgment. Mr Young refers to the general statements of principle regarding reverse burdens, but he makes no reference to the overseas authorities that specifically address a reverse burden in the context of the partial defence of diminished responsibility to the charge of murder, which we reviewed extensively in the Judgment from paragraphs 56 to 75.

13.  We were satisfied on our review of the relevant authorities and the relevant considerations that the right of a presumption of innocence was not engaged by the imposition of a legal burden under section 3(2).

14.  We also considered in the Judgment that if the right to a presumption of innocence was engaged, whether a legal burden was proportionate and justified. On this issue, Mr Young submits that it is reasonably arguable that this Court erred in determining the issue of legitimate aim and proportionality.

Legitimate aim

15.  Mr Young contends that the Court did not articulate the legitimate aim of the reverse burden of diminished responsibility.

16.  He quotes his position as having stated that section 3(2) had a legitimate aim of ensuring the court has a sufficient body of evidence for the proper and just determination of the issue of diminished responsibility. However, he further acknowledged that the aim was legitimate because diminished responsibility concerns the defendant’s mental condition, evidence of which was not always readily available to the prosecution or observable by lay witnesses. To this end, he accepted that the section was rationally connected to this legitimate aim because the reverse onus incentivised the defence to obtain and proffer medical and other evidence of the highly personal condition of the accused’s mental state at the time of the offence. See paragraph 45 of the Judgment. Mr Young’s position was set out in paragraph 16 of the Applicant’s Appeal Submission as follows:

“(c) HO3(2) has the legitimate aim of ensuring the court has a sufficient body of evidence for the proper and just determination of the issue. The aim is legitimate as diminished responsibility concerns the mental condition of the defendant, evidence of which is not always readily available to the prosecution or observable by lay witnesses. …

(d) HO3(2) is rationally connected to this legitimate aim because the reverse onus incentivises the defence to obtain and proffer medical and other evidence of the defendant’s mental condition at the material time. This helps to ensure the court has a full body of evidence to determine the issue justly. …”

17.  As we pointed out in the Judgment, it was accepted by the parties that the judge’s direction to the jury that it was for the applicant to prove her diminished responsibility on a balance of probabilities if liability was to be reduced from murder to manslaughter, was in accordance with the common law interpretation of section 3(2). See paragraph 26 of the Judgment. Section 3(1) provides that 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 as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. It is on this basis that section 3(2) provides that it shall be for the defence to prove that he is not liable to be convicted of murder. As we noted, section 3(2) placed a burden of proof on the accused so that if he or she suffered from diminished responsibility, a conviction for murder would be reduced to manslaughter.

18.  Mr Young is critical of our comments in paragraph 78 regarding legitimate aim but only highlights a portion of what we said and does not refer to the discussion leading up to our comments in that paragraph. In paragraph 78 we were summarising and providing our concluding views on the justification for the legal burden. Mr Young argued that the aim of section 3(2) was to ensure that the court had a sufficient body of evidence for the proper and just determination of the defence of diminished responsibility. See paragraph 37 of the Judgment. However, we also noted, that the aim of the section was to prove that the accused was suffering from diminished responsibility in order to reduce a conviction for murder to manslaughter.

19.  There was no real controversy in relation to the legitimate aim of the section for the issue as crystallised by Mr Young was whether it should be a legal burden or an evidential burden as he was advocating. As we have already pointed out, the thrust of Mr Young’s submission was that an evidential burden was no less effective than a legal burden to achieve the legitimate aim and therefore a legal burden of proof on an accused was not necessary.

20.  Mr Young has not referred to the discussion leading up to paragraph 78 of the Judgment, particularly paragraphs 76 and 77, in which it was noted that a principal consideration for the justification of a legal burden was the practical difficulties that would arise from requiring the prosecution to prove that an accused who raises the issue of mental abnormality does not suffer from such a condition. We note that what was said in paragraph 45 was taken up in paragraph 78 of the Judgment.

21.  There was no real issue as to the legitimate aim of the legal burden, although there was elaboration of these matters when we reviewed the overseas authorities. The focus of Mr Young’s challenge to the section was on the nature of the burden that should be imposed on the defence to prove diminished responsibility. Even on his formulation of the legitimate aim of the section, his argument before us focused on whether an evidential burden satisfied the requirement of providing a sufficient body of evidence for the determination of whether an accused suffered from diminished responsibility at the time of the offence. He argued that an evidential burden would suffice but we rejected his arguments and were persuaded that a legal burden was justified. See paragraphs 45 and 78 of the Judgment.

Proportionality

22.  Mr Young next contends that the Court did not consider under the proportionality test whether an evidential burden would serve the legitimate aim as effectively as the legal burden. However, Mr Young concentrated his argument before us on the question of justification for the imposition of a legal burden by reference to the specific circumstances of the situation in Hong Kong. He mainly focused on the “imbalance of advantage” by government psychiatrists in assessing a defendant’s mental condition. See paragraphs 39 and 40 of the Judgment. Mr Young’s argument was set out in paragraph 16 of the Applicant’s Appeal Submission as follows:

“(e) However, the imposition of a legal burden of proof on the defendant is not necessary. Difficulty of proof for the prosecution or the defendant’s peculiar knowledge of the facts do not per se justify the reverse burden (Lam Kwong Wai, [51]; Hung Chan Wa, [83]; Ng Po On, [65]-[70]; Gurung Krishna, [63]). In the actual situation of Hong Kong, imposing an evidential burden on the defendant is no less effective than a legal burden to achieve the legitimate aim. The evidential burden is ‘not something nominal or illusory’ (Ng Po On, [72]) and needs to be discharged with ‘credible evidence’ (Lee To Nei, [52]). In the context of HO3, it equally incentivises the proffering of defence expert psychiatric evidence, to ensure the issue goes to the jury, such evidence being necessary as a matter of law and practice to meet the evidential burden (see The Queen v Lau Man-cheung [1986] HKLR 1172 (CA); HKSAR v Tsang Chiu Tik [1999] 3 HKLRD 301 (CA)).

(f) As reflected in the circumstances of this case, a legally-aided murder defendant appearing to suffer from mental illness will normally be detained pending trial at SLPC, where she will be under constant surveillance and have regular consultations with government psychiatrists and clinical psychologists (AB/139F-141A, 179I-K; Amy CY Liu, ‘Diminished Responsibility: Law Reform in the United Kingdom and Personal Perspective on Forensic Psychiatric Practice in Hong Kong’ (2018) 28 EAAP 144, 147-8). A privately retained defence psychiatrist, if funded by the Legal Aid Department, will normally have limited opportunity to interview the defendant, which would typically take place a considerable time after the material event (AB/88B-N, 138U-139F, 334K-L, 341E, P, 342E-S).

(g) Systemically, the government psychiatrists will enjoy several advantages in the assessment of the defendant’s mental condition: (i) timely opportunity to assess the defendant shortly after the material event (AB/139Q-U), (ii) high frequency of meetings over a long period of time (AB/139F-Q, 182U, 194J-P), (iii) greater opportunity to assess the reliability of the defendant (AB/140R-141A), and (iv) access to the defendant’s SLPC medical records detailing daily observations and notes made by SLPC nurses and psychologists (AB/202M, 179S, 186O-P). In contrast, the defence psychiatrist has the corresponding disadvantages: (i) one or two meetings with the defendant held some months or years after the material event (AB/138U-139B), (ii) deference to the government psychiatrists on questions of the defendant’s reliability (AB/112K-N, 140R-141A, 292), and (iii) lack of access to the defendant’s SLPC medical records (AB102F-G, 113M-S, 122S-123C). This imbalance of advantage is such that there is no need to impose a legal burden on the defendant to ensure the court has a sufficient body of evidence for a just determination of the issue. An evidential burden will suffice.

(h) A reasonable balance has not been struck between the benefits of HO3(2) and the inroads made on the presumption of innocence (Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, [70]- [80]). The legal burden has little if any benefit over an evidential burden in achieving the legitimate aim. However, the inroads on the presumption of innocence are considerable. The actual situation is such that unless the government psychiatrists support the defence, the defendant is highly unlikely to succeed even though the jury may have a reasonable doubt as to her mental responsibility. It is not a legitimate aim to deter or impede the defendant in mounting the defence where there is a reasonable doubt arising from the competing psychiatric evidence. Thus, the legal burden coupled with the imbalance of advantage that government psychiatrists have over the defence psychiatrist results in an ‘unacceptably harsh burden on the individual’ (Hysan Development, [135]).

23.  As we noted, Mr Young’s challenge to section 3(2) sought to make a comparison between the effectiveness of a legal burden compared with an evidential burden, which, as we noted in the Judgment at paragraph 40, was mainly based on hypothetical suppositions and personal opinions. As we have repeatedly stressed, it is notable that Mr Young completely ignored the overseas cases and what had been said in justifying a legal burden. He is arguing the issue on proportionality based on his own personal view as to the effectiveness of an evidential burden compared to a legal burden without any evidence or consideration of the points made in the overseas authorities.

24.  When the first question is examined in its proper legal context and with due regard to the legal reasoning for the imposition of a legal burden in section 3(2), the points raised in support of the certificate are not reasonably arguable or directly relevant.

25.  We refuse to grant a certificate on this point of law.

Question 2

26.  The point of law as framed by Mr Young was not argued before us although there was discussion about the law relating to a lies direction and its application. See paragraphs 82 to 87 and 91 to 97 of the Judgment and the Applicant’s Appeal Submission, at paragraphs 18 to 22.

27.  Mr Young criticises the case law of the Court of Final Appeal on the basis that insufficient delineation has been given to when precisely a trial judge directing the jury should give a lies direction. He seems to be arguing that the language used in Yuen Kwai Choi v HKSAR [1] and Jim Fai v HKSAR [2] is open to a broad interpretation and that this Court in the Judgment adopted a narrow interpretation. With respect, this is an artificial argument because it is plain that this Court applied the legal principles as laid out by the Court of Final Appeal in the relevant authorities, which are well established. See paragraphs 94 to 97 of the Judgment.

28.  As noted by the respondent, the applicant did not give evidence at trial and the partial defence of diminished responsibility was based on a questionable evidential foundation. There was an issue as to the inconsistent accounts she gave to the psychiatrists. As stated by the Court of Final Appeal in the great majority of cases, a lies direction is not just unnecessary, it is inappropriate. The applicant’s different accounts to the psychiatrists were relevant to her defence of diminished responsibility, and did not strengthen the prosecution case for the offence of murder. Even the defence psychiatrist, on what he had been told by the applicant, was of the opinion that she did not suffer from an abnormality of mind at the time of the offence that substantially impaired her mental responsibility. See paragraphs 21 to 25 and 92 of the Judgment.

29.  As further noted by the respondent, the trial judge in any event directed the jury that they should not reject the applicant’s defence of diminished responsibility even if they found the account she gave to the defence psychiatrist was not true. The trial judge’s remarks were set out in paragraph 93 of the Judgment, which were as follows:

“Let us take a look at the two claimed disorders more closely in light of the medical evidence. In doing so, members of the jury, you should bear in mind the following matters. First, the medical reports compiled by Dr Wong, for the defendant, and Dr Lui, for the prosecution, contain accounts given by the defendant to them as to her history, symptoms or her experiences. Dr Wong had fairly stressed that his opinion was based on what the defendant chose to tell him. He was not in a position to verify how reliable she was when she told him those matters. Dr Wong stressed the importance of reliability of information provided by the patient because he said most of the symptoms in mental illnesses are subjective, meaning are only known to the patient himself or herself. So he said he deferred to doctors who had seen the defendant more regularly, particularly on the issue of whether she is reliable or not.

The defendant has elected not to give evidence. Those accounts given to the psychiatrist have not been confirmed by her in court or tested on cross-examination. The prosecution say that her account is not true; her account is not accurate. And diagnosis based on unreliable information is of limited or of no use to raise the defence of diminished responsibility. If you have heard all these matters you are sure that what she told Dr Wong are not true, you should not base on that alone to infer that the defence of diminished responsibility is not available to her.

On the other hand, you may think that what she told Dr Wong has not been sworn to by the defendant in the witness box, it is not evidence of the existence in fact of what she said; namely, her past sensations, experiences or symptoms, and that a defence case based on evidence which has little, if any, firm evidential conviction.

…

Mr Lai, for the prosecution, asked you to pay special attention to Dr Wong’s, who is the defendant’s own psychiatrist, evidence, who told you in his report that right at the very beginning of his interview with her, she stared at him in a perplexed manner and talking irrelevantly. It was only after Dr Wong told her that he had limited time, he would see her only once and if he should find her feigning, meaning pretending mental symptoms, he would not hesitate to put it down in his report that she markedly changed to act normally. Mr Lai submitted that this was most indicative of a lack of reliability when providing her background information to Dr Wong for diagnosis.” (Emphasis added)

30.  The judge also told the jury, “decide what her intent is by considering all the relevant circumstances, in particular, what she said about it. … if you are to believe what she related to Dr Wong is true or may be true, then she must be acquitted because she has no intent to shoot.”; and “if you consider, because of the drug taken, she did not or might not have the requisite intent, she should be acquitted.” See paragraph 89 of the Judgment.

31.  We agree with the respondent’s submissions that the second question has been appropriately addressed by the existing case law and refuse to grant a certificate on this point of law.

Conclusion

32.  It follows from what we have said that we refuse to certify that Questions 1 and 2 are points of law of great and general importance involved in the decision of this Court.