THE QUEEN v. LAU MAN CHEUNG

____________

JUDGMENT

____________

Kempster, J.A.:

1. This is the judgment of the Court.

2. On or about 17th December 1984, having rendered him insensible by the ingenious introduction of noxious vapours into a lift in Block 6, Ko Chiu Road Estate, Kwun Tong, and, dragged him through a hatch to the roof of that lift Lau Man-cheung killed Ho Ho-yin by strangulation. He then cast the body to the bottom of the lift-well. At trial during January of this year he claimed that he had always expected that the execution of his premeditated crime, which involved the provision of a shroud and of a grave and was, apparently, motivated by jealousy at the favour shown to the deceased by a girl whom he admired, would be thwarted by Divine intervention. The jury found him guilty of murder. He seeks leave to appeal against the resulting conviction.

3. In the course of the applicant's evidence the jury was asked to leave the court and counsel then appearing on his behalf indicated that he felt unable further to maintain the defence of "diminished responsibility" which he had mentioned to the jury in opening his case. When the jury returned Deputy High Court Judge Ryan told them that As a result of the law that we have had a look at in your absence it is now clear that as the defence have no medical evidence that they can call to support that argument that defence is no longer open to the accused.  Medical evidence had been called for the Crown. We have already stated that we are prepared to treat these words as "a ruling" so as to permit Mr. Keane, who represents the applicant before us, to rely on Revised Grounds of Appeal, filed out of time, to the effect that it was wrong in law. None of the other matters raised by earlier "Grounds" is relied upon. In any event it is the duty of a trial judge to ensure that he himself looks for and sees any possible defence and, by his summing-up, that a jury's verdict unfavourable to an accused has necessarily excluded it.

4. Section 3 of the Homicide Ordinance reads:

"(1)     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 causes 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.

 

(2)     On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder. -"

There is no requirement that medical or other expert evidence must be adduced in support of such a plea which necessarily relates to the time when the homicide occurred.

5. In R v Matheson ⁽¹⁾, which involved a plea of diminished responsibility in circumstances where medical evidence had been called on behalf of the accused at trial, Lord Goddard C. J., presiding over a Court of Criminal Appeal comprising 5 members, in the context of the equivalent provisions of section 2 of the Homicide Act 1957 said:

 

"While it has often been emphasised, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence.

 

-        If then there is unchallenged evidence that there is abnormality of mind and consequent substantial impairment of mental responsibility and no facts or circumstances appear that can displace or throw doubt on that evidence, it seems to the court that we are bound to say that a verdict of murder is un-supported by the evidence.

Two years later, in the course of his judgment in R v Byrne⁽²⁾ Lord Parker C.J. observed, obiter:

 

Whether the accused was at the time of the killing suffering from any "abnormality of mind"  in the broad sense which we have indicated above is a question for the jury. On this question medical evidence is no doubt of importance, but the jury are entitled to take into consideration all the evidence, including the acts or statements of the accused and his demeanour. They are not bound to accept the medical evidence if there is other material before them which, in their good judgment, conflicts with it and outweighs it.

 

        The aetiology of the abnormality of mind (namely, whether it arose from a condition of arrested or retarded development of mind or any inherent causes, or was induced by disease or injury) does, however, seem to be a matter to be determined on expert evidence.

 

        Assuming that the jury are satisfied on the balance of probabilities that the accused was suffering from "abnormality of mind" from one of the causes specified in the parenthesis of the subsection, the crucial question nevertheless arises: was the abnormality such as substantially impaired his Mental responsibility for his acts in doing or being a party to the killing. This is a question of degree and essentially one for the jury. Medical evidence is, of course, relevant, but the question involves a decision not merely as to whether there was some impairment of the mental responsibility of the accused for his acts but whether such impairment can properly be called substantial, "a matter upon which juries may quite legitimately differ from doctors."

In R v Lloyd ⁽³⁾, another decision of the Court of Criminal Appeal in relation to a trial where medical evidence was forthcoming, it was confirmed that it was for the jury to determine whether any abnormality of mind had "substantially' impaired the accused's mental responsibility for his acts and omissions. In Lai Kuen v R ⁽⁴⁾ the Hong Kong Full Court, referring to R v Byrne ⁽²⁾, held that medical evidence was required to trace "some specific mental cause or condition". Finally, in R v Dix ⁽⁵⁾, the authority relied upon by the Judge in the instant case, the English Court of Appeal held that the burden of proof resting on an accused in relation to a plea of diminished responsibility could not in practice be discharged unless medical evidence was adduced. The Court went further than Lord Parker C.J. in that it held that "evidence of a medical kind" was essential not only to cover the aetiology of the abnormality of mind but also, surprisingly, whether it was such as substantially to impair the accused's responsibility for his acts. It is not apparent from the report whether or not R v Lloyd ⁽³⁾ was cited in argument but the Court certified under section 33(2) of the Criminal Appeal Act 1968, the following point of law to be of general public importance

'Whether it is a prerequisite for a submission that a defendant's responsibility for his acts is diminished within the meaning of section 2(1) of the Homicide Act 1957 that appropriate scientific evidence of a medical kind is laid before the court.'

In the event the matter appears to have gone no further.

6. In contrast to the law as presently understood in England, Hong Kong and Australia we were referred to the judgment of Roden J. in R v Purdy ⁽⁶⁾. Referring to the words in parenthesis, also appearing in section 23A of the Crimes Act 1900, p. 967, he said:

 

"It would be necessary for the words to drive me very strongly - and to allow of no other (conclusion), before I would be prepared to attribute to the legislature, as the Byrne construction does, an intention that an accused person, who at the relevant time suffered an abnormality of mind such as substantially impaired his mental respon-sibility for the act causing death, might not be entitled to the benefit of the section because of the source or the cause of that abnormality.

 

        For that to have been the intention of the legislature, it would be necessary that there were some categories of abnormality of mind, or of sources or causes of abnormality of mind, which the legislature intended to exclude. Having regard to the sources and causes covered by the words appearing in parenthesis in the section, I find it difficult to imagine what they might be."

But it is conceded that temporary abnormality resulting for example from self induced drunkenness or a self-administered drug would not be covered and that this passage from the judgment constituted obiter dicta. Perhaps the strongest argument advanced on behalf of the applicant rested on a comparison with the law relating to insanity as explained in McNaughten's case ⁽⁷⁾.Quoting-Lord Tucker in A.G. for South Australia v Brown ⁽⁸⁾, again obiter:

 

"Their Lordships are not, of course, suggesting that legal insanity cannot be sufficiently proved without medical evidence. The previous and contemporaneous acts of the accused may often be preferred to medical theory."

Similarly Lord Denning in Bratty v A.G. for Northern Ireland ⁽⁹⁾:

 

"In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of the mental incapacity."

The latter words are not consistent with the proposition that as a matter of law insanity cannot be established in the absence of medical evidence. However, the law relating to insanity and the application of The McNaughten Rules" "is not concerned with the origin of the disease [of the mind ]or the cause of it but simply with the mental condition which has brought about the act." per Devlin J. (as he then was) in R v Kemp ⁽¹⁰⁾ . To like effect Lord Diplock in R v Sullivan ⁽¹¹⁾:

"If the effect of a disease is to impair these faculties (reason, memory and understanding) so severely as to have either of the consequences referred to in the latter part of the rules, it matters not whether the aetiology of the impairment is organic, as in epilepsy, or functional, or whether the impairment itself is permanent or is transient and intermittent, provided that it subsisted at the time of commission of the act."

7. In contrast the defence allowed by s. 3 of the Homicide Ordinance is, as a matter of construction, concerned with the aetiology of the accused's abnormality of mind. Accordingly we are satisfied that, as a matter of common sense and practicality, a jury cannot in the absence of medical evidence reasonably find in favour of an accused in relation to the cause of any mental abnormality as required by the words appearing in parenthesis in the section. Accordingly this Court should, we believe, follow R v Dix ⁽⁵⁾.

8. We dismiss this application.

(1) [1958] 42 Cr. App. R. 145 at pp.151 & 152

(2) 1960 2 Q. B. 396 at pp. 403 - 404

(3) 1967 1 Q.B. 175

(4) 1972 HKLR 442

(5) [1982] 74 Cr. App. R 306

(6) [1982] 2 NSWLR 964

(7) (1843) 10 Cr. & F 200

(8) 1960 AC 432 at p.452

(9) 1963 AC 386 at p.413

(10) 1957 1 Q.B. 399 at p.407

(11) 1984 AC 156 at p.172