R. v. KANG HOI TONG

IN THE COURT OF APPEAL

1990, No. 585
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. The applicant, Kang Hoi Tong alias Hong Hoi Tong, appeared for trial before Wong J. and a jury on an indictment containing four counts of murder. After trial he was convicted of all four counts and the statutory sentence of death was imposed. He sought leave to appeal against those convictions. At the conclusion of the hearing we refused leave to appeal and stated we would give our reasons later. This we now do.

3. The four persons who were killed - though this is not in the order of the counts in the indictment - were first Yeung Wai Yin, a lady aged 42, described as the wife of the applicant; second: Tse Wai Man, son of Yeung Wai Yin and of Tse Yuen Fong, aged 17; third: Tse Yuen Fong, the husband of Yeung Wai Yin; and fourth: Tse Ah Wing, the 15 year old daughter of Yeung Wai Yin and Tse Yuen Fong and the god-daughter of the applicant. All the deaths took place on 9th June 1989 between the hours of 9.00 a.m. and 2.15 p.m. The killings were in two sessions. The two first named were killed almost at the same time, there was a pause and then the third and fourth named were killed, one after the other, in a very short compass of time.

4. At trial the applicant, in the presence of the jury, denied murder but pleaded guilty to manslaughter on the grounds of diminished responsibility. That plea was not acceptable to the Crown.

5. All the killings took place at a flat 506, 26 Belchers Street where the victims and the applicant resided together.

6. There was a highly unusual background to this family. A great deal of its history came from the applicant either from his statements to the police, his interviews with psychiatrists or his own evidence at the trial.

7. The applicant was born in China on 25th September 1936. His natural mother died when he was aged 7. His father remarried and, at the age of 9, the applicant was taken by his stepmother to Macau to join the father. Between the ages of 9 and 15 he studied in the Chuen Yuen Catholic School in Macau and then in the Ho Kwong School. He left school and worked in his father's firewood and charcoal shop in Macau for about a year. Afterwards he worked for some friends. In 1953 or 1954 - all these dates are approximate and there was considerable confusion as to when particular events did take place - the applicant came to Hong Kong with $2.60 in his pocket and worked in restaurants. He eventually became a captain. In the mid 1970s he moved to a restaurant in the Western District and there, in the latter half of 1970s, he met Madam Cheung Sai, a customer. The applicant became friendly with Madam Cheung Sai and visited her at the Belchers Street flat. Through her he met Madam Yeung Wai Yin, her daughter. This flat was one which went with the job Tse Yuen Fong had with Hong Kong Land.

8. In 1977 Madam Cheung Sai became ill, was hospitalised and the applicant, to the limit of his resources, gave her financial assistance. At about this time he became the godfather of Tse Ah Wing at the suggestion of Madam Cheung Sai.

9. He started a relationship with Yeung Wai Yin. This developed and, in 1978, Yeung Wai Yin and the applicant went through a form of marriage in Macau. They came back to Hong Kong and held a dinner to celebrate their wedding. The applicant said that, a little after the wedding had taken place, he found out that Yeung Wai Yin was married to Tse Yuen Fong. The applicant by this time had his own flat but, despite his discovery of Yeung Wai Yin's existing marriage, he spoke to Tse Yuen Fong concerning his moving into the Belchers Street flat. Eventually he did move there.

10. In December 1980 Yeung Wai Yin discovered she was pregnant. In September 1981 she gave birth to a son - the applicant claimed him to be his - named Tse Wai Keung - "Wai Keung". Before the birth, and at the request of Yeung Wai Yin, the applicant moved out of the Belchers Street flat for a short period so that Yeung Wai Yin might have sexual relations with Tse Yuen Fong. This was to enable her to pretend that Wai Keung was Tse's son. In later years, and we shall come back to this in a moment in the chronology, the applicant discovered that Wai Keung was registered under Tse's name. This upset him greatly.

11. Sometime in September 1981 Tse Yuen Fong suffered a stroke and was in hospital for about six months. There he was visited by the applicant who, it would appear, had kindly feelings towards him.

12. It was in June 1984 after Wai Keung, aged 2 years and 9 months, had been accepted into a kindergarten school that the applicant discovered the surname - "Tse" - under which Wai Keung was registered both at birth and at school. At this point Yeung Ming, who was described as an "uncle" of Yeung Wai Yin, though he was no blood relation, came into the family orbit. It would seemed that Madam Cheung Sai was upset by the advent of Yeung Ming and, possibly in 1987, she committed suicide. The applicant was very upset by this as he had become very fond of Madam Cheung Sai.

13. The applicant then gave up his job. This so that he could look after Wai Keung whom he always looked upon as his son. He became a form of housekeeper for the family.

14. The friendship between Yeung Wai Yin and Yeung Ming developed. Eventually the applicant convinced himself that it had become a sexual relationship. Yeung Wai Yin had gone to China with Yeung Ming to take care of the registration of her own father's house; she had, and alone, attended Yeung Ming's birthday party in China. Later the whole family, other than Tse Yeung Fong but including the applicant, had gone to a Lunar New Year party given by Yeung Ming in China. After this and sometime in March or April of 1988, a photograph of Yeung Wai Yin and Yeung Ming was displayed upon a cabinet in the Belchers Street flat. Their pose was intimate. The applicant wrote words on the back of the frame of the photograph alleging adultery. After September 1988 the atmosphere between himself and Yeung Ming having become strained, Yeung Ming ceased to visit the Belchers Street flat with the frequency of the past. There had been monthly visits to Macau by Yeung Wai Yin, the applicant and Wai Keung but these regular joint visits ceased and now the applicant went there alone with Wai Keung. At some time in this period pieces of paper with writing on them were found in the Belchers Street flat. The writing was that of the applicant and they alleged that Yeung Ming and Yeung Wai Yin were having an incestuous relationship.

15. Sometime, possibly in March of 1989, Yeung Wai Yin showed the applicant Wai Keung's birth certificate and asked the applicant to sign on a piece of paper to sever the relationship of father and son between himself and Wai Keung. This piece of paper the applicant did sign, in what he termed a submissive way, in the presence of Tse Yuen Fong and Yeung Ming. Also about this time the applicant visited Macau with Yeung Wai Yin and, on their journey back, she indicated to the applicant that she wanted a separation.

16. In March or April of 1989, and this evidence came from Tse Wai Ming - who was no relation but was a waiter, and a friend and colleague of the applicant - a conversation took place between them. In the course of it the applicant expressed himself as being very unhappy and uttered some form of threat to "do Yeung Wai Yin in". Tse Wai Ming thought this to be an expression of anger and not something to be taken literally.

17. On 9th June 1989 the killings took place.

18. The applicant gave a number of versions of what had happened. In one version he said that he had taken Wai Keung to school, waited until the boy had started his lessons and then he went for tea by himself. He walked back to the Belchers Street flat through Western District where he had bought some fish and vegetables. All this between approximately 6.00 a.m. and 9.15 a.m.

19. When he got to the flat Yeung Wai Yin scolded him for failing to prepare offerings to the gods. He thought it might be to celebrate the birthday of Tse Yuen Fong but, be that as it may, the applicant said that, as a Catholic himself, he did not make sacrifice to the gods. Yeung Wai Yin then threw a bag of roast pork at him whereupon the applicant went to a store room, picked up some "thing" and used this to strike Yeung Wai Yin who felt onto the sitting room floor.

20. At this point Tse Wai Man came out from the bedroom on his way to the kitchen to get some congee and saw what was happening. The applicant says he took refuge in the bedroom but Tse Wai Man followed and splashed him with the boiling congee whereupon he struck Tse Wai Man with whatever it was that he had used to strike Yeung Wai Yin. Having done this he went back to the sitting room where he saw Yeung Wai Yin trying to rise. He hit her again. He had killed both Yeung Wai Yin and Tse Wai Man.

21. He then started to clean up the bloodstains about the house and put the cleaning rags into a plastic bag, together with the instrument he had used to strike the two victims and the shorts he himself was wearing. He dragged Yeung Wai Yin's body into the kitchen.

22. The applicant left the house and threw the plastic bag into the harbour. There was evidence that he was seen leaving the flat at 9.50 a.m. carrying two nylon bags. He thought of running away but he remembered that Wai Keung was still at school. He walked to the school to collect him, using an excuse, given to the school, that Wai Keung's grandfather was ill. Having picked up Wai Keung he took him to have something to eat. He then at some time - whether this was before or after he had taken Wai Keung for food, the sequence is confusing - left Wai Keung's school bag in a grocery store operated by a Mr. Ho to which was attached a gold fish stall run by Madam Lam So Yip. Mr. Ho said that at 10 a.m. the applicant left a black and white travel bag, with the characters "Hong Thai" on it, at the shop. Mr. Ho kicked it, felt the bag was heavy and found that the kick produced a sound of metal hitting metal.

23. Madam so gave evidence that at 1 p.m. she saw the applicant put a hammer into a bag. The applicant, in reply to a question from Madam So, said it belonged to him. He left with the bag. She went on that, at 3 p.m., the applicant returned to the shop with a boy. He collected a white bag and left.

24. Mr. Rodway, who appeared for the applicant both here and below, as the judge put it " ... vigorously challenged and cross-examined ... " these witnesses. The judge then left the evidence to the jury in this way

"You may think, but that is a matter for you, that they had no reason whatsoever to tell lies or make any stories against the accused. Of course, they could be mistaken". (emphasis supplied)

25. Before us Mr. Rodway has critised the emphasised passage stigmatising it as too casual and being, in effect, an unjustified throw-away direction. The judge should have given, on this aspect, an even handed direction which he failed to do. We shall return to this when considering the grounds of appeal argued before us.

26. The applicant then went to a supermarket where he bought litre bottles of soft drink, biscuits and bread. He says he went to retrieve the school bag at the grocery store.

27. Whatever the sequence, the applicant and his son arrived sometime after 1.00 p.m. at the Belchers Street flat. This flat was situated in the middle of a long corridor at one end of which there was a staircase and at the other a lift. Wai Keung played in that corridor. According to the applicant, and this from other evidence is patently incorrect, Tse Ah Wing then returned. The applicant was cleaning the floor and she kicked him, either purposely or accidentally. She abused him. He picked up a small hammer from the store room, chased her, hit her and killed her. He dragged her body into the toilet. He said that he then carried on cleaning up the flat and it was at that point that Tse Yuen Fong returned. The applicant was very emotional. He cried and he confessed the killings to Tse Yuen Fong who replied that, for "humanitarian" reasons, the applicant should kill him, Tse Yuen Fong, also. Because his feelings were friendly to Tse Yuen Fong the applicant said that he could not bring himself to do this. Tse Yuen Fong then took the hammer with which Tse Ah Wing had been killed and struck himself upon the head several times with it causing his own death. The medical evidence did not support this version. It indicated that the wounds suffered by Tse Yuen Fong were on the back of the head and were consistent with his having been attacked from behind with an instrument with the characteristics of a hammer.

28. From the other evidence - that Tse Yuen Fong had been seen at 1.35 p.m. returning earlier than Tse Ah Wong who was sighted at 2 p.m. - the sequence that clearly emerged was that Tse Yuen Fong had returned first and was struck on the back of the head by the applicant. He then fell, mortally wounded, still clutching his bag of sandwiches under him, as they still were when the body, lying on a couch, and covered up by a sheet, was found.

29. The "suicide" version was given by the applicant in evidence. In one of his earlier statements - Ex P 78 - he had told the statement taker, Sgt. Huen, that he had used an axe to chop on Tse Yuen Fong's head from behind. "At that time I chop him twice. He then lay on the bed".

30. The applicant, before leaving the flat and taking Wai Keung to Macau, wrote Chinese characters on the walls of the flat blaming the killing on Yeung Ming. Those characters gave the impression that they had been written by Tse Yuen Fong.

31. On his eventual arrest in Macau the applicant was found with letters written by him, addressed to the Hong Kong and the Macau police, the applicant's parents and his brother-in-law. In these letters he also accused Yeung Ming of being responsible for the killings.

32. Mr. Rodway submits that by relating those facts to the jury on that simple factual basis the judge misled them on the significant part they played in the defence of diminished responsibility. It had been suggested at trial that the contents of those letters showed the confused mind of the applicant and were relevant to the issue of diminished responsibility the main "defence" run at trial. This aspect of the evidence should have been emphasised to the jury.

33. The trial judge, because of the raising by the applicant himself both of provocation and self-defence in relation to the actions of Tse Wai Man with the congee leading to Tse Wai Man's death and of the provocation in relation to the actions of the girl Tse Ah Wing and the mother Yeung Wai Yin, thought it necessary to leave all those issues for the consideration of the jury. Mr. Rodway complains that the manner in which those issues were dealt with - and this includes the suicide defence of which the applicant had given sworn testimony relating to the death of Tse Yuen Fong - had the effect of diminishing the real thrust of the main defence. He further complains that the full aspects of the defence of diminished responsibility and the evidence supporting it were left in so cursory a manner to the jury that the judge, in reality, did not place the defence case before them.

34. Mr. Rodway does not complain that the issues of provocation relating to the deaths of Yeung Wai Yin and Tse Ah Wing and the, albeit shadowy, defence of self-defence in the case of Tse Wai Man together with the defence of suicide were left to the jury. His complaint is that, because of the way he dealt with those matters - and we have been taken through the summing up in detail together with the relevant portions of the transcript - the judge in effect emphasised those defences while not dealing in anything like the same detail, either factually or in law, with that which was the real defence.

35. The grounds of appeal start with a complaint that, having first properly defined murder for the benefit of the jury and the intention necessary for that crime and having referred to the medical evidence, the judge, by directing the jury in this way:

"From these injuries and the instruments used to cause them, it is very obvious that the person who attacked the deceased persons must be intended to kill them or at least to cause them serious bodily injury. There cannot be any doubt about this. In other words, there cannot be any doubt at all that there was an intention to kill or to cause serious bodily injury in all four charges."

was inviting the jury to speculate and was telling them that that there was no doubt at all that there was an intention to kill in all four killings when the main issue was whether the applicant was capable of forming the intention to kill as a result of an abnormality of mind. The trial judge should have gone on to remind the jury that a person suffering from such abnormality of mind as to affect that intention is entitled to have a verdict of manslaughter considered by the jury.

36. Mr. Rodway's main submissions however concerned the manner in which the trial judge dealt with the witnesses called by both the prosecution and the defence on the issue of diminished responsibility. The sequence was that, after the applicant himself gave evidence, the defence first called Dr. Sylvia Chia Lu Chen, a Bachelor of Medicine and a Bachelor of Surgery who had obtained a Diploma in Tropical Medicine and Hygiene in the University of London in 1974 and had become a member of the Royal College of Psychiatrists in the United Kingdom in 1977. She was a member of the Royal Australian and New Zealand College of Psychiatrists from 1981 and a fellow of those two Colleges in 1983. She had been practising as a psychiatrist since 1973.

37. She interviewed the applicant on two occasions, both being about a month before the trial, that is October 1990. It will be remembered that the incident took place on 9th June 1989. Her conclusions, which were set out at page 14 of her report, a report which the jury had in their hands, were that, as she also stated in evidence (at page 427):

"In conclusion I opine that the defendant had been suffering from a depressive illness with paranoid symptoms and morbid jealousy against YEUNG Ming since his mother-in-law's death. Adverse life circumstances as detailed above culminated, and tension had built up to make his mental state so abnormal and unstable as to render him poor in impulse control and vulnerable to provocation. At the material times of the alleged offences he was suffering from a paranoid state on top of depressive illness, which was such an abnormality of the mind as substantially impaired his mental responsibility for the act, and sufficient to establish a defence to the charges of murder on the ground of diminished responsibility."

38. The defence then called Dr. B.C. Connell who qualified as a Bachelor or Medicine and a Bachelor of Surgery from the University of London in 1983 and who had become a member of the Royal College of Psychiatrists in the United Kingdom in 1989. He had been practising psychiatry for six years. He also interviewed the applicant on two occasions. It is noteworthy that on the first of those occasions the applicant denied that he had killed anyone. On the second occasion he had admitted that he committed all the four killings. Dr. Connell expressed as his opinion that:

"... at the time of the alleged defence KANG Hoi-tong was suffering from the mental abnormality of morbid jealousy. This mental abnormality is such in this case as to substantially diminish his responsibility within the meaning of the Homicide Act."

39. The jury also had his report in their hands.

40. Both doctors were taken, step by step, through the course of their interviews with the applicant and as to the views they had formed in relation to that which the applicant told them. We have had our attention drawn to these passages in the transcript.

41. Dr. Connell's opinion as set out above, and which he had come to after the first interview, was not altered in the course of the second interview. It was his view that in the illness described as "morbid jealousy" delusions - which he described here as "false ideas unamenable to reason of infidelity" - are a central symptom. There is a disproportionate intensive jealousy. The illness is considered to be a variant of the severe psychiatric illness of paranoid disorder. He stated that it was his "contention" that Kang Hoi Tong had developed this mental illness gradually over the years as the strength of his relationship with Yeung Wai Yin weakened. He went on, in evidence, to describe morbid jealousy in this way:

"It is a term which implies that somebody has a problem, a mental problem. Underneath that, one may go further to make an actual diagnosis. Morbid jealousy might be thought of in terms of, for instance, chest pain is thought of to other doctors or to us lay people. There are a myriad of reasons for chest pain from heart attacks to strained muscles when you are playing squash. Morbid jealousy is a descriptive term and it is considered a variant of paranoid disorder. Paranoid disorder in itself can be fuelled by a depressive illness. For some people when they are depressed. we all know about people that cry a lot and look depressed, we can all diagnose that, but some people when they are depressed become paranoid. That is well-recognized. so the diagnoses that have been mentioned are not exclusive of one another."

Then the following series of questions and answers took place:

"Q. Was this man suffering from paranoia?

A. Yes.

Q. Was he suffering, in your view, from a depressive illness?

A. It is entirely possible that he was suffering from a depressive illness.

Q. Was he suffering from morbid jealousy?

A. Yes."

42. All this was of course heard by the jury and, as we have indicated, the reports of the two doctors were in their hands when they retired for their deliberations.

43. The Crown, in rebuttal, called one witness Dr. Ho Pang Nin. Dr. Ho was the Senior Medical Officer of Castle Peak Hospital and a visiting psychiatrist to Siu Lam Psychiatric Centre. He had graduated from Hong Kong University as a Bachelor of Medicine and a Bachelor of Surgery in 1977 and become a member of the Royal College of Psychiatrists in 1986. In the course of his examination in chief he was asked these questions by Mr. Marash who appeared for the Crown at trial:

"Q. Do you believe that at the time on the 9th of June, 1989, Mr. KANG was suffering from any abnormality of mind from inherent causes?

A. First I must say that this is a very difficult task because I have to really speculate retrospectively what exactly happened one and a half years ago and also, given that the evidence I have to rely totally upon the account of the Defendant himself, really a very shortage of independent, reliable informants and given all these sort of limitations I think I could only come up with an opinion based on the balance of evidence and I am of the opinion that he is not likely to be suffering from a condition which would substantially impair his diminished responsibility at the time of the offence. (sic)

Q. I make it clear there are two parts. The first question is, what is you opinion, first of all, is he suffering, was he at the time suffering from any abnormality of the mind from inherent causes on the 9th of June 1989?

A. No.

Q. And secondly, I don't think it arises actually but if he were, is there any abnormality which would substantially diminish his responsibility for his actions on that day?

A. In my opinion, no."

Again, Dr. Ho had prepared a report which was in the hands of the jury.

44. In cross-examination, Dr. Ho was taken very strenuously to task by Mr. Rodway as to the methods he had used for his interviews with the applicant and his notes, or rather the lack of them, of what had occurred at those interviews and the time they had taken. The jury could have been under no misapprehension that Dr. Ho's competence to form an opinion, and the opinion that he did form, were being very strongly contested.

45. It was clear from the evidence that the doctor was uncertain as to the length of time each of the interviews had taken and that his notes on this aspects were deficient. Having commenced to give his evidence in the English language he asked, in the course of the cross-examination, that he be permitted to revert to Chinese. This he did. It was put to him that he was mainly concerned with whether the applicant was fit to plead and only peripherally concerned with the applicant's mental condition at the time of the offence. He was attacked for requesting his nurse to arrange interviews with relatives of the applicant. He was questioned as to the, as Mr. Rodway put it, "paucity" of his report. He was accused of lying.

46. But the real issue is how did the trial judge deal with the expert evidence. At page 12 of the summing up the judge laid the issues before the jury in this way:

"The issues which you have to decide in this trial are these: in relation to counts 2, 3 and 4, if you come to the conclusion that the accused killed YEUNG Wai-yin, TSE Wai-man and TSE Ah-wing in circumstances that amount to murder, that is he killed them with the intention to kill them or to cause them serious bodily injuries, you will consider the question whether at the time of the killings the accused was suffering from diminished responsibility or he was provoked. I will explain to you what provocation means in due course."

He went on a little later:

"In relation to count 2, and that is the killing of TSE Wai-man, you will also, in addition to diminished responsibility and provocation, consider the issue of self-defence, and that is to say whether at the time of the killing the accused was acting in necessary and reasonable defence of his own life.

In so far as the 1st count involving the death of TSE Yuen-fong is concerned, firstly you have to be satisfied so that you feel sure that the accused killed him, secondly that the accused did so in circumstances amounting to murder, and that is that he had the intention to kill him or to cause him serious bodily injury. Once you are satisfied with these two matters to the extent that you are sure, you will consider whether the accused killed TSE Yuen-fong when he was suffering from diminished responsibility."

47. In the sequence of the summing up the trial judge then went on to deal with the facts, making comment here and there as he went on. For example, as to the sexual relationship which existed between Yeung Wai Yin and the applicant, he said this of the applicant's evidence:

"On the rare occasions when he had sex with YEUNG Wai-yin whom he regarded as his lawful wife she would compare his sexual ability with YEUNG Ming and said that, 'uncle is tougher or stronger than you'.

This piece of evidence, coming as it did from the accused's own mouth, indicates that sexual relationship still subsisted between him and YEUNG Wai-yin after YEUNG Ming had come into the picture of this tragedy and that would be in 1987 or even some time after. This seems, members of the jury, to be a repudiation of Dr. Chan and Dr. Connell's belief that there was a cessation of the sexual relationship shortly after the birth of Wai-kuen and this is an important factor upon which their conclusions were based."

48. Of this comment, Mr. Rodway submits that it over-emphasised the aspect of the reports of Dr. Chan and Dr. Connell which made reference to a cessation of the sexual relationship and that it was not an important factor, albeit a factor, upon which they had relied. But the judge had clearly told the jury in the opening of his summing up that, if at any stage he seemed to express views on the evidence, it was their duty to reject those views unless the jury's own views coincided it. We do not think that the judge was acting in any way improperly in making the comment he did. The cessation of sexual intercourse did play a fairly large part in the evaluation of the applicant's condition by Drs. Chan and Connell.

49. Having made reference to the evidence of the forensic pathologist that the bodies of both of the female deceased had been sexually interfered with - something which probably happened after death but which was denied by the applicant - the characters written on the walls of the flat, admittedly by the applicant, his arrest in Macau, and the possession of the letters, and of the applicant's original denial of having killed Tse Yuen Fong, the judge went on to deal with the issue of self-defence in relation to the killing of Tse Wai Man.

50. Once a judge decides to leave issue of provocation or the defence of self-defence to the jury then he is required to do it properly and direct the jury on the law in relation to those matters. This the trial judge here did, contrasting the defence of self-defence with the issues of diminished responsibility and provocation. In our judgment, once the trial judge had taken the decision to leave these matters to the jury then the manner in which he did so was not such as to place upon them undue emphasis. He then went on to deal, and in detail, with the issue of diminished responsibility.

51. He drew the attention of the jury to the relevant section of the Homicide Ordinance: told them that the burden on the accused was not as heavy as that which rests on the prosecution and referred to the major part of the trial being dominated by the psychiatric evidence. He referred the jury to that evidence. He did not, understandably, go into all the details of the evidence of Dr. Chan and Dr. Connell. As he said:

"Their reports have been read over and over to you by the doctors and by counsel and I will not attempt the same exercise. You will read them at leisure in the course of deliberation if you so choose."

52. He made reference to two articles on morbid jealousy which had been brought to the attention of the jury. Again did not go into those in detail. He did refer to the conclusions of the two defence doctors and read out that portion of Dr. Chan's report and the paragraph from Dr. Connell's second report to which we have already referred.

53. Having done that he went on to deal with the evidence of Dr. Ho, highlighting portions of his evidence including the evidence as to the length of time that doctor has spent in his interviews with the applicant, a matter which was fully canvassed before them by Mr. Rodway. He concluded by saying:

"There is, therefore, a divergence of medical opinions. You will appreciate, of course, members of the jury, that interviews of the accused took place more than a year after the killings. The earliest interview was one year later. That was the first interview by Dr. Connell and all the other interviews were another four months after that."

54. He referred to submissions made by Mr. Marash for the Crown, and to the final speech of Mr. Rodway in which Mr. Rodway had told the jury that this was "really a battle between psychiatrists". Of this the trial judge said:

"With respect to him, this is not entirely accurate. You would certainly consider the medical opinions carefully but you are not bound by the medical evidence. The proper approach is for you to consider all the evidence including the medical evidence and to come to your own conclusions.

The accused was in the witness-box for two days and you have had the opportunity to observe his demeanour and that is the way he gave his evidence and how he reacted to questions."

55. The trial judge then went on:

"Mr. Rodway make some very severe criticisms of Dr. Ho accusing him of lying and negligence. You may think - but it is entirely a matter for you - that such severe criticisms were not wholly justified."

56. Mr. Rodway takes issue with this as, he submits, by a side wind it had the effect of bolstering the very poor evidence of Dr. Ho.

57. Again, with respect, we do not agree. Mr. Rodway had made very severe criticisms of Dr. Ho. He was accused of lying and negligence - strong words. The judge was, in our judgment, entitled to make the comment he did.

58. Mr. Rodway then criticised his succeeding passages in the summing up at pages 31 and 32 where the judge, he submits, was speculating on the evidence. Certainly, the trial judge did put his own views to the jury referring to the facts and telling them that they were entitled to draw certain inferences, but he had, as we have already indicated, clearly told the jury that if they did not agree with his views they were entitled to disregard them. It was perhaps unfortunate that he did enter into speculation but the facts were clearly a matter for the jury to decide, and this was emphasised to them. Having done that, the trial judge again referred specifically to the ingredients of diminished responsibility and there can be, and is, no criticism of the manner in which he dealt with that.

59. He went on to deal with the issue of provocation and he concluded his summing up in this manner:

" Because the burden of proof is always on the prosecution to prove the accused's guilt, it is not for the accused to prove that he was provoked. Once the issue has been properly raised, as it has here, it is for the prosecution to satisfy you so that you feel sure that the accused was not so provoked before you can convict him of murder. If you are satisfied that he was provoked or if you think that he might have been provoked, then you can only convict him of manslaughter.

But if you reject diminished responsibility and that you also reject provocation, in the case of the second count you also reject self-defence and that you are satisfied so that you feel sure that the accused killed each and every deceased in the four counts with intention to kill or cause serious bodily injury to each of them, you will return a verdict of guilty of murder in each and every of the four counts." (sic)

60. When the judge made reference to inferences it is correct that he did not go on to direct the jury, as Mr. Rodway suggested he should have, that, if they drew an inference adverse to the applicant, then it must be the only inference which could emerge from the facts. But the jury had been at the start and, as we have just indicated, at the conclusion of the summing up given clear directions on the burden of proof. They had been earlier informed that in relation to diminished responsibility there was a much lesser burden on the defence. The jury, in the light of the summing up as a whole, would have been under no illusions as to where the burden of proof lay and we do not think that Mr. Rodway's complaint has force.

61. Mr. Marash, in the course of his submissions, had referred to certain matters, such as the cleaning up of the flat and the way in which these killings took place as being indicative of premeditation. Again, it is true that the trial judge did not draw to the attention of the jury that premeditation, if they found it to exist, did not eliminate the issue of diminished responsibility. A man can premeditate his actions while still suffering from abnormality of mind. But the actions of the accused as emerging from the evidence were factors for the consideration of the jury and it was a matter for them, in assessing whether the accused was suffering from diminished responsibility as suggested by Dr. Chan and Dr. Connell, to bear all the evidence in mind. We did not consider that the defence was inadequately left to the jury. All the issues were placed fully and squarely before them. Nor did the judge in passages criticised, including his directions on the evidence of Mr. Ho and the goldfish lady, fail to leave matters in an even handed manner.

62. A judge is entitled to and should normally assume that a jury has a grasp of a case: per Ackner L.J. (as he then was) in R. v. Wallace: The Times Law Reports: 19th February 1982. As Sir Alan Huggins V.P. said in delivering the judgment of the court in The Queen v. Wong Kam Tong and Others, Criminal Appeal No. 666 of 1981 at page 8:

"It has been said that it is wrong to treat a jury, which is expected to absorb highly complex evidence, as being totally incapable of retaining points of importance and thus as needing reminder not only in the closing speech for the defence but also by the judge in his summing-up."

63. We would, with respect, endorse Sir Alan's dicta.

64. A judge in directing a jury must leave for them, and in proper form, the issues in the case. The fact that those issues are affected by expert evidence does not alter that. The evidence of an expert is in precisely the same position as the evidence of any other witness and what a jury accepts or rejects is entirely a matter for them. Provided that, as we find was done here, the issues are squarely placed before them in the context of the evidence as a whole, the decision is that of the jury.

65. We cannot see that, in directing the jury in the manner he did, the trial judge was in error or was minimizing the thrust of the defence.

66. We considered with care all the matters set out in the perfected grounds of appeal which run to some 15 pages. We were not persuaded that, having borne all of them in mind, even if we have not now specifically referred to some of them, that these convictions were either unsafe or unsatisfactory.