HKSAR v. HUSNAIN SAFDAR

CACC 39/2018

[2020] HKCA 454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 39 OF 2018

(ON APPEAL FROM HCCC NO 2/2017)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the Reasons for Judgment of the court):

1.  This was an application for leave to appeal. However, because we allowed the appeal and because there were hearings as to consequential orders and sentence, all of which are addressed in these reasons for judgment, we shall, throughout this judgment, henceforth refer to the applicant as the appellant.

2.  The appellant was charged with one count of murder contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212.  The count alleged that on 29 March 2016, he murdered his girlfriend, Andrea Bayr (“the deceased”) in Hong Kong.

3.  On arraignment on 15 January 2018, the appellant pleaded not guilty and after a trial before a jury presided over by Zervos J (“the judge”), as Zervos JA then was, the appellant was convicted of murder and sentenced to life imprisonment.

4.  On 6 February 2018, the appellant filed a Notice of Application for Leave to Appeal (Form XI) against his conviction.

5.  On 31 May 2019, the first occasion the appeal was listed for hearing, we learnt more about the procedural history of this trial which prompted us to call for the transcript of a number of pre-trial hearings.  On 19 March 2020, we heard arguments on the second ground of the appellant’s Amended Perfected Grounds of Appeal and reserved our judgment in respect of the appeal.  We asked the parties to prepare and file submissions on what order we should make should we allow the appeal and quash the conviction for murder.

6.  On 9 April 2020 we allowed the appeal and heard argument on the consequential order we should make.  By exercising our power under section 83A(2) of the Criminal Procedure Ordinance, Cap 221, we substituted for the jury’s verdict of murder, a conviction for manslaughter on the basis of diminished responsibility.

7.  On the same day we called for an updated medical report on the appellant and adjourned the matter of sentence to 7 May 2020.

8.  On 7 May 2020, we sentenced the appellant to 10 years’ imprisonment. 

9.  These are our reasons for allowing the appeal, substituting a conviction for manslaughter and sentencing the appellant to 10 years’ imprisonment.  

1.     The appellant’s reliance on the defence of diminished responsibility

10.  Before setting out the procedural history of this case it is necessary to have some understanding of how the appellant was relying on this defence, which is derived from section 3(1) of the Homicide Ordinance, Cap 339 which provides:

“3. Persons suffering from diminished responsibility

(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.” 

11.  The appellant killed the deceased whilst, he claimed, he was under the influence of methamphetamine hydrochloride (“Ice”).  He never denied the killing and, pre-trial, offered to plead guilty to manslaughter on the basis of diminished responsibility.

12.  The plea offer was based on the opinions of three psychiatrists, Dr Paul MS Tam (DW3) and Dr WK Choi (DW4), both called by the appellant, and Dr Kavin KW Chow (PW5), called by the prosecution.  They all agreed that the killing took place whilst the appellant was experiencing a psychotic episode triggered by his consumption of Ice.

13.  The appellant’s case was that he was suffering from two diseases of the mind. The first was a Stimulant Use Disorder concerning his addiction to Ice and cannabis.  Also known as a dependency syndrome, this is, effectively, an assertion that he was addicted to these two drugs.  For this syndrome or disorder to be a disease it must cause him to have a craving for the drugs such that his urge to consume them is irresistible and, for this reason, properly regarded as an abnormality of mind caused by disease.  It is a common law principle, based on public policy, that a person is not excused criminal liability for acts committed by him whilst under the influence of alcohol or drugs which he has voluntarily taken.  However, if it is a feature of a defendant’s dependency disorder that he cannot resist the urge to consume the alcohol or drug then his disorder is regarded as an exception to the common law principle, and enables it to be brought within the ambit of the diminished responsibility defence.

14.  The second basis of the defence relied on by the appellant was Substance Induced Psychotic Disorder (SIPD).  This is a psychosis that is caused by the long term consumption of dangerous drugs and manifests itself in psychotic episodes in which the sufferer may experience either or both visual and auditory hallucinations.  This psychosis is a recognised disease of the mind which the drug taking has caused and which may lead to physical changes in the brain.  An important distinction between this psychosis and the addiction disorder is that for the psychosis the voluntariness of the appellant’s consumption of Ice is irrelevant to the availability to him of the defence of diminished responsibility. 

15.  In respect of this appellantit was asserted that his psychosis was a pre-existing condition at the time he killed the deceased and was due to his long term and heavy consumption of Ice and cannabis.  The factual basis for this defence was a claim by the appellant that at the time he killed the deceased he was experiencing a psychotic episode.  That his addiction was causing him to experience psychotic episodes was supported by evidence from others as to his behaviour in the months preceding the offence and by staff of Siu Lam Psychiatric Centre in the months succeeding the offence. 

16.  With this brief summary of the medical evidence, and the legal issue which underlay it, we shall turn to the procedural history of the trial.

2.     The procedural history

17.  In a detailed letter dated 12 October 2017 counsel in the Prosecutions Division of the Department of Justice wrote to the judge informing him that the department had received a letter from the appellant’s solicitors containing an offer by the appellantto plead guilty to manslaughter on the basis of diminished responsibility.  The prosecutor said in this letter that the Director of Public Prosecutions (Ag), “having carefully reviewed the facts of the case” and the opinions of the psychiatrist, formed the view “that the offer is acceptable”. 

18.  This letter then went on to set out the facts of the case and the contents of psychiatric reports prepared by Dr Tam for the defence and Dr Chow for the prosecution.  Two reports from each expert were attached.

19.  A pre-trial hearing took place on 13 October 2017 at which the judge expressed his concern at the appropriateness of accepting the plea offer.  The judge indicated that he wished to have more time “to consider the material very, very, thoroughly before I give any judicial endorsement of what is being proposed by the prosecution.”[1] 

20.  On 12 December 2017, the day before the next pre-trial hearing, the prosecutor wrote to the judge as follows:

“In respect of the Defence’s offer to plead guilty to manslaughter on the basis of diminished responsibility, Prosecution have carefully considered the offer again after the last hearing. We are of the same view that the offer is acceptable and subject to any contrary view the Court might have Prosecution proposes to accept the offer.”

21.  At the hearing on 13 December 2017, the prosecution was represented by Ms Alice Chan, a Senior Assistant Director of Public Prosecutions, who informed the judge in respect of the decision to accept the plea offer:

“The decision was not made lightly. It was after very serious consideration by senior level of the division.”[2]

22.  The judge continued to have doubts about the appropriateness of the plea offer and queried Ms Chan on whether the issue of voluntary intoxication had been fully considered as the psychiatrists did not appear to address the issue of whether the appellant had an irresistible craving for drugs. 

23.  The case was adjourned so that the prosecution could have an opportunity to consult again with its psychiatrist. Dr Chow, in response to prosecution queries, prepared two further reports dated 21 December 2017 and 22 December 2017.  In her two reports she expressed the view that the appellant “took the drugs willingly and voluntarily”[3].

24.  The two reports were sent to the judge by the prosecution by letter dated 3 January 2018 and in this letter counsel in the Prosecutions Division informed the judge that the case would now proceed to trial.

25.  This, somewhat unusual, procedural history prompted this court to raise with counsel the power of a judge to refuse to accept a plea agreement reached between the Department of Justice, as the prosecuting arm of the HKSAR, and a defendant. In this respect we note the constitutional independence of the Department of Justice, as set out in Article 63 of the Basic Law, to “control criminal prosecutions, free from any interference.”

26.  The researches of counsel have been most interesting and helpful and we thank them for their written submissions.  Ultimately, this issue did not arise in the appeal because it became quite clear that the judge never rejected the plea agreement but only queried, quite properly, the underlying assumptions as to the state of the evidence on which acceptance by the Director of Public Prosecutions of the plea agreement was based.  Consequently, it has not been necessary for us to address this issue, interesting as it is.  

3.     The trial

3.1     The prosecution case

27.  It was the prosecution case that in the early morning on 29 March 2016, the appellant and the deceased were inside a container at a construction site that was near the Tin Hau Temple Plaza on Tin Hau Road in Tuen Mun.  At the time the appellant was working as a night-shift security guard at the construction site.  He had been working there since 22 January 2016 and his hours of work were from 6 pm to 8 am the following day.  Harris Khan (PW4), who had known the appellant for 15 years, was also present.  The deceased and the appellant were lovers and were in the habit of consuming Ice together.  On many occasions it would be the deceased who would provide the Ice.  When the appellant arrived at the container, PW4 and the deceased were already consuming Ice.  The appellant joined them. 

28.  PW4 left the container to go to the toilet and when he returned to the container, he heard the appellant and the deceased screaming and shouting at each other.  They were fighting with each other and each was bleeding.  When PW4’s efforts to stop the fight were unsuccessful, he telephoned the police hotline and rushed to a nearby police station to seek help.  PW4’s hands and trousers were covered in blood from his efforts in trying to stop the fight.  PW4 could not say what it was that caused so much bleeding when the appellant and the deceased were fighting.

29.  PW4 led a team of police back to the scene where they found the appellant sitting on the floor of the ramp of the bridge that was under construction.  The appellant had the deceased in a leg-lock posture and was holding an electronic drill and striking the deceased’s head with it.  Whilst he was being subdued by attending police officers, the appellant said “Sorry” in English and “Water” in Cantonese.  The appellant did not say anything else but kept repeating “Sorry” in English and shaking his head.

30.  The deceased was later conveyed to hospital where she was certified dead.  An autopsy on her revealed multiple injuries to her head and deep bruising on her neck and these were the cause of her death.  An 8 cm portion of a 15 cm long drill bit was found to have penetrated the deceased’s face below the right eye and ended in the inner side of the right jaw.  Methamphetamine was detected in the blood sample of the deceased.

31.  A test on a sample of the appellant’s urine that was collected after his arrest revealed the presence of amphetamine and methamphetamine and its metabolite.

3.2     The defence case

32.  The appellant elected to testify and also called various family members and friends and his two psychiatrists, Dr Tam and Dr Choi.

33.  While the appellant accepted that he killed the deceased, he relied on four lines of defence to the murder charge:

(i) at the time he assaulted the deceased he did not have an intention to kill her or an intention to cause her grievous bodily harm;

(ii) he was acting in self-defence as he thought the deceased was a witch who was going to kill him;

(iii) the defence of diminished responsibility and in reliance on this defence he asserted that at the time he killed the deceased he was suffering from an abnormality of the mind owing to:

     (a) SIPD;

     (b) Stimulant Use Disorder (Methamphetamine); and

     (c) Stimulant Use Disorder (Cannabis)

     which substantially impaired his mental responsibility for doing what he did; and

(iv) he was only guilty of manslaughter by unlawful act.

34.  All the defences relied in one way or another on the assertion by the appellant that he was experiencing a psychotic episode at the time of the killing during which he was subject to both visual and auditory hallucinations. Notwithstanding that the appellant advanced the other defences, his main defence was clearly diminished responsibility.

35.  As explained earlier in this judgment the defence of diminished responsibility had two bases to it.  The primary basis was SIPD and we say this because this was a disorder to which voluntary intoxication was not an issue.  The other basis of the defence was the two addiction disorders to which voluntary intoxication was an issue.

36.  The appellant testified that he first took drugs in 2007 and initially started taking cannabis and smoking Ice for fun.  Since 2012, he started taking drugs more frequently and with increased quantity.  Around December 2015, he started hearing voices screaming and talking to him.  In 2016, he met the deceased and they became lovers.  Since then, he started taking drugs on a daily basis as the deceased bought the drugs for him.  He continued hearing voices speaking to him.

37.  The appellant said that he arrived at the container around 6 pm on 28 March 2016 and found PW4 and the deceased had already started consuming Ice.  The appellant then consumed Ice with them but soon ran out of it.  With the help of PW4, the appellant bought and consumed some more Ice, which he described as being very strong.  Having consumed the additional Ice, he said he saw a snake in the moon in the sky and heard a voice speaking to him telling him that the deceased was going to kill him.  After asking the deceased whether she also heard this voice, he pulled the deceased’s arm and made her look at him.  He then saw the deceased’s face change and her eyes and teeth appeared to be coming out.  Thinking the deceased was a witch, he threw a hammer at her but missed her.  He then saw the deceased chase after him.  The appellant feared he would not be spared and so he had to kill the deceased using a drill in his hand. 

38.  With regard to the utterance he made when he was subdued by the police, the appellant said that he did not remember saying “sorry” and “water” or repeatedly saying “sorry” to the police.

39.  Upon being asked why he did not mention to Dr Choi in his interviews at Siu Lam Psychiatric Centre, that he thought the deceased had turned into a witch, the appellant said he did not do so out of embarrassment and because there were voices telling him not to do so.  He said he was scared and did not want the doctor to consider him a lunatic.

4.     The expert evidence

4.1     The defence expert: Dr Paul MS Tam (DW3)

40.  Dr Tam’s assessment of the appellant was mainly based on the appellant’s own account of the incident that he obtained from his interview with him.  Based on this account, the witness statements provided by the Police and the psychiatric report of Dr Choi dated 8 June 2016, Dr Tam expressed the opinion that at the time of the offence:

(i)     the appellant was a chronic drug abuser;

(ii)     the appellant was having psychotic symptoms prior to the killing; 

(iii)     the appellant killed the deceased whilst suffering from more active psychotic effects of Ice in addition to psychiatric effects that already affected him from his chronic abuse of dangerous drugs;

(iv)     because of his addiction the appellant could not control himself; and

(v)     the drugs he took on the night of the offence caused him to suffer from a temporary abnormality of the mind[4].

41.  Dr Tam described the appellant’s dependency on Ice and cannabis as “serious”, and explained how his assessment was based on the duration, quantity and purpose of taking the two drugs:

“… First of all, it’s the duration. We heard already that he’s been addicted since 2007, and for about five months before that, he was already taking it once a week. The duration is one aspect. The second is the quantity, in that in the beginning he’s taking -- only taking once every two or three days, but we subsequently we’ve heard that he’s taking it once a day and it usually exceeds half a gram, and on that particular occasion, you know, he took it twice, so I don’t think it’s probably -- probably more than a gram, actually. So one is the duration. Secondly, the quantity. Because of addictions are always dose related. The heavier the dose, the worse the addiction. And the third thing, I was actually very worried. I’m sorry to mention this cross-examination again, but I’m not making any criticism, but the defence counsel brought out a very, very good term because he asked the defendant why do you need to keep taking the drug, because he said he took the Ice and then he felt calm. That was the term that, you know, that really shocked me because as you know, a person who wants to take Ice, they do it because they want to get high, and it’s only the very severe drug addicts who takes a large amount of Ice because that means, you know, this person has been taking it for so long, that if he doesn’t take it, you know, he don’t [sic] even have to calm -‑ he doesn’t have the calmness. ...”[5]

42.  Dr Tam was present in court whilst the appellant testified and said:

“… In fact, after the examination this morning, I was more convinced than ever that this gentleman was suffering from a very significant addiction.”[6]

On another occasion in his evidence he described the appellant as being “really very deep rooted addicted.”[7]

43.  In explaining why he assessed the appellant to be suffering from such a significant addiction he described how long it look for him to recover at Siu Lam.  He said:

“But it took him at least six months – actually, it took him about two to three months even before his psychotic symptoms could be subdued and then another six months before he could come off drug altogether. That was how he was transferred from [Siu] Lam back to Lai Chi Kok.”[8]

44.  In addressing the issue of voluntary intoxication and whether, because of his addiction, the appellant was able to control his consumption of drugs, Dr Tam gave evidence as follows: 

“Q. Thank you. Now, you say here he had an addiction and he could not control himself. What do you mean, he could not control himself?

A. Well, the definition of addiction itself is a person who realised that what he was taking or what he was doing -- addiction is not just...

Q. Sorry, my real point is, ‘cannot control himself’?

A. Yes. Well, it just mean, addiction is, that mean he know something is wrong, he cannot control -- he know that it’s wrong, but he has to keep taking it, although he’s wrong because he cannot control his thinking, his behaviour. He just have to take it to, to...

Q. Has to take the drugs?

A. Yes. Even if he realised that taking the drug is wrong.

Q. I see. Now, in your first report dated 12 June, Exhibit D3, page 5, you said he had been craving for Ice, drugs?

A. M’m.

Q. What do you mean by ‘craving for drugs’?

A. Craving for drugs is a psychological term. I heard both of your examination yesterday and both counsel shows that they only ask for the physical part of addiction, and they...

COURT: Well, Mr...

A. ...omitted the psychological part.

…

A. Well, craving is a psychological term. That means apart from the physical part of withdrawal of not taking the medication, any addict would have a psychological part of wanting to take the drug of addiction, and that was what I mean by craving. The craving could be a very strong desire of anxiety, you know, a very strong urge or a very general feeling, subjective feeling of restlessness. You know, these are all psychological things that you can -- you probably cannot measure and you cannot see, but they were there and at times they were actually more portray than the physical part.

Q. So can I summarise that as a mental dependence on the drug?

A. Yes.”[9]

45.  In his evidence-in-chief, Dr Tam explained that methamphetamine can cause mind-altering effects on a user, such as hallucinations, delusions and paranoia.  He said it was a fair comment to say that the appellant’s mind suffered from “some degree, a strong degree of impairment caused by the taking of drugs so that he did not understand the nature of his conduct at the time of the index offence”[10].  But, under cross-examination, he did concede that if the appellant had not taken those drugs on the night of offence, the extent of the “temporary abnormality of mind” he suffered would not be expected to flare up.

4.2     The defence expert: Dr WK Choi (DW4)

46.  Dr Choi, though called as an expert witness for the defence, was a psychiatrist at Siu Lam Psychiatric Centre and had assessed the appellant as being not mentally fit for police interview after he was remanded to Siu Lam on 6 April 2016.

47.  From the appellant’s medical records Dr Choi said that the appellant had been admitted to Queen Elizabeth Hospital after his arrest on 29 March 2016 and whilst there had been assessed by a psychiatrist.  Dr Choi reported that assessment as follows:

“… During his stay in QEH, he had been assessed by psychiatrist. He was impressed to have acute drug-intoxication; suspected to have drug-induced psychosis. He was remanded to this centre on 6.4.2016 as suggested by the psychiatrist. …”[11]

48.  In his report, Dr Choi stated that a urine toxicology screen test that was conducted on the appellanton his admission to Siu Lam, some 7 days after the killing had taken place, found that there was cannabis still present in his urine specimen.  In regard to what happened on the night of the offence he said that the appellant told him that he and his friends shared drugs together.  But as to the killing, Dr Tam said that the appellant could only say:

“He roughly remembered that he had seen a snake on the moon and then forgot what had happened.”[12]

49.  When first admitted to Siu Lam the nursing staff observed the appellant to be quite suspicious and at times speaking incoherently and irrelevantly and mentioning “being followed by people”.  His mood was said to be labile.

50.  Dr Choi saw the appellant on 11 April 2016 and said that on this occasion the appellant managed to follow most of the questions asked of him but at times also appeared to have difficulties in fully understanding what was said to him.  The appellantdenied having any active psychotic symptoms. 

51.  Of the subsequent interviews Dr Chow said:

“8. Florid psychotic symptoms in form of delusion of persecution, delusion of reference, grandiose delusions with religious theme and auditory hallucination could be clearly elicited at the next interview conducted on 22.4.2016, and he also appeared to be in great distress when the symptoms were explored and brought up for discussion. Physical workups for the cause of his psychosis, including blood investigations and Computerized Tomography Brain (CT Brain) were ordered, and he was also put on close observation in single cell. He was considered not fit for police interview on 22.4.2016. Psychotic symptoms persisted in the drug-free environment, and he was still impressed to be actively psychotic when he was re-examined on 3.5.2016. Antipsychotic medication (quetiapine 50mg at night) was started since 3.5.2016. I kept on seeing him regularly in this centre, and the dosage of medication was also titrated according to his clinical condition. He reported to have improvement in sleep after taking drugs, and he also appeared to be less distress in the following examinations.

9. Latest psychiatric examination conducted by the undersigned on 6.6.2016 found that he was calmer and more attentive than before, although psychotic symptoms could still be readily elicited. …”[13]

52.  In his oral testimony Dr Choi said of the position as at 6 June 2016:

“Q. And those psychotic symptoms being what, as late as 6 June? What were those psychotic symptoms?

A. Well, I think he was still suspicious, although he actually was not quite willing to discuss or disclose his symptoms every time. Some of the -- my judgment also take account from the observation of the nurse given to me in the ward, but I believe that he actually improved after taking drugs, but the symptoms I mentioned including the delusion and persecutions and auditory hallucinations, I believe that they were still present on 6 June when I last examined him before I compiled this report.”[14]

4.3     The prosecution expert in rebuttal: Dr Kavin KW Chow (PW5)

53.  Dr Chow produced 5 psychiatric reports on the appellant. Although tendered as a prosecution expert, her opinion was relied on by the appellant to establish the defence of diminished responsibility, especially in respect of her SIPD diagnosis.

54.  In her reports, based on the account of events provided by the appellant, and other family and background information provided by the appellant’s brother, she expressed the opinion that at the time the appellant killed the deceased, the appellant suffered from:

(i)     SIPD as evidenced by the presence of delusions and hallucinations during and soon after his use of Ice and cannabis. She said his psychotic symptoms were severe and lasted beyond what would be expected during drug intoxication or withdrawal;

(ii)     Stimulant Use Disorder (Methamphetamine) as he had been using Ice since 2007 and he had increased the amount and frequency of Ice use over the previous few years.  He had further increased his amount of Ice use since early 2016 and he took a half gram or more of it on a daily basis; and

(iii)    Stimulant Use Disorder (Cannabis) as he had increased his use of cannabis since 2012 and he smoked up to 6 to 7 cigarettes daily since early 2016.

55.  She explained that drug use can cause structural and biochemical changes to the brain and these changes may lead to the occurrence of psychotic symptoms and it was these psychotic symptoms that led to the killing of the deceased.  The stimulant use disorders do not lead to violence and killing.  It was the psychotic symptoms, the paranoid delusions and the auditory hallucinations that led to the killing.

56.  The appellant’s dependency on the two drugs was evidenced by his increase in the amount of use in early 2016 with symptoms of tolerance and withdrawal and by the fact that he continued to use it despite it causing him to hear voices and causing a deterioration in his family relationship.

57.  Dr Chow expressed the further opinion in her reports and in her evidence that:

(i)     SIPD and the two stimulant use disorders are all recognised mental disorders arising from a disease of the brain;

(ii)     the appellant “took the drugs willingly and voluntarily”[15]on the night of the offence; and

(iii)    if the appellant had not taken the drugs on the day of the offence, he may not have experienced the psychotic symptoms which were associated with the subsequent killing; it was the taking of the drugs which induced the psychotic symptoms.

58.  When asked how long she thought the appellant could abstain from drug taking she said it depended on the environment.  In a protective environment it could be for a very long period, but in an environment where he was under stimulation or the influence of the drug being available he might not abstain for one day.  She agreed that if a drug addict has got a regular free supply of drugs it is difficult for him to choose to abstain, especially if he has a craving for it.

59.  In relation to the appellant’s dependency on the drugs, Dr Chow commented that although the appellant had a drug dependency problem, it did not mean that he lost his control in choosing whether or not he should take the drugs.  Under cross-examination, she confirmed that the appellant’s level of dependency was moderate.  The appellant’s ability to control himself and stop taking Ice at the material time was assessed by her to be at the level where he had some impairment in control, yet did not lose total control over his intake of the substance[16]. When pressed on the appellant’s ability to abstain from taking drugs she cited as an example of his control over his drug taking the fact that he did not take drugs at his home.

60.  When cross-examined on her assessment that the appellant took the drugs voluntarily and willingly it was put to her that would mean “every drug addict would take the drugs voluntarily and willingly unless he was forced?”  To this she replied:

“Yes. Most of them take drugs willingly and voluntarily.”[17]

61.  She was of the opinion that the appellant took the drugs in order to get rid of the withdrawal symptoms as opposed to taking them in order to get a “high” from them.  

5.     The Amended Perfected Grounds of Appeal

62.  In the Amended Perfected Grounds of Appeal, Mr David Boyton, counsel for the appellant at trial and on the present application, advanced 5 grounds of appeal.  They are:

(i)     The alleged admission, “Sorry, Water” was so ambiguous and/or lacking in foundation that it should not have been left to the jury as a possible admission of guilt to murder;

(ii)     The judge misdirected the jury by failing to clearly tell them in simple words, that there was no need to account for any question of involuntary intoxication in relation to the partial defence of manslaughter by reason of diminished responsibility owing to SIPD;

(iii)     The judge failed to present a balanced summary of Dr Chow’s evidence to the jury and/or failed to refer to the answers from the cross-examination of Dr Chow that was to the appellant’s benefit.

(iv)     The judge entered the arena and displayed and/or may have appeared to have displayed to the jury, criticisms of the defence case and/or defence counsel, as well as assisting the prosecution of the case.

(v)     There is a lurking doubt in the appellant’s conviction.  The proper conviction is one of manslaughter by reason of diminished responsibility.

6.     The appellant’s submissions

63.  In view of the way in which we have disposed of the appeal we shall address only the second ground of appeal in this judgment.

6.1     Ground 2: The judge’s direction on SIPD

64.  The judge directed the jury as follows:

“In general, the voluntary consumption of drugs and the defendant’s voluntary intoxication does not provide a defence to murder.”[18]

65.  Mr Boyton submitted that the judge failed to specifically direct the jury in simple words that SIPD did not require the jury’s consideration of the issue of “voluntary consumption” and said that Dr Tam’s opinion on the issue of substantial impairment was only that the appellant’s impairment was “in general terms, as a result of chronic drug abuse”[19].  Mr Boyton argued that clear words were required as all three psychotic disorders stemmed from the consumption of methamphetamine and/or cannabis.  

66.  Mr Boyton submitted that in his summing-up the judge did not lend his support and judicial authority to the defence’s emphasis on the irrelevance of voluntary intoxication to SIPD and to the fact that Dr Tam supported a diagnosis of SIPD.  The judge, in effect, left these points to the jury as though they were only a defence submission. 

67.  Mr Boyton also complained that when the judge summed up Dr Chow’s evidence, he did not divorce “SIPD as a mental disorder arising from a disease” with her unrelated opinion that “the appellant took the drugs willingly and voluntarily”.

68.  Mr Boyton argued that as this was a complex area of law and medical evidence, it was unfair to the appellant that the judge did not direct the jury sufficiently clearly on the issues. 

7.     The respondent’s submissions

7.1     Ground 2: The judge’s directions on SIPD

69.  Mr Jonathan Man, for the respondent, submitted that since the appellant relied on both substance use disorders and SIPD in his partial defence of diminished responsibility, the judge had tailored his directions to the jury to accommodate the issues to be considered with reference to applicable legal principles.

70.  Regarding the two substance use disorders, the judge properly directed the jury to consider whether the appellant’s consumption of drugs could be regarded as the involuntary result of an irresistible craving for, or compulsion to take, drugs when they considered the defence.

71.  In respect of SIPD Mr Man submitted that the directions the judge gave were adequate and unlikely to confuse the jury.

8.     Discussion

72.  What was of concern to us in this appeal was the accuracy of the judge’s portrayal of the medical evidence in support of a diagnosis of SIPD.  Given the importance of SIPD to the defence of diminished responsibility, it was crucial that the jury had an accurate appreciation of the medical evidence that related to it. 

73.  Unfortunately, comments by the judge in his summing-up tended to suggest that the only positive support for this diagnosis came from Dr Chow.  For example he told the jury:

“… You will note the diagnosis of Dr Paul Tam and Dr WK Choi, did not specifically address SIPD.”[20]

and

“Mr Boyton also submitted to you that the medical evidence was that the defendant was suffering from SIPD which was a diagnosis from Dr Chow….”[21]

74.  This, in fact, was not correct.  Dr Choi had said in his report that the appellant was suffering from “a persistent and active psychotic disorder”[22].

75.  Furthermore, Dr Tam had positively endorsed Dr Chow’s SIPD diagnosis.  This is apparent from the following excerpt from Mr Boyton’s examination of Dr Tam: 

“Q. Is this addiction, this dependency on drugs, a mental disorder?

A. Yes. I think in Dr Choi’s report, he gave three diagnoses, two of them.

Q. Could you read them to us?

COURT: Well, Dr Choi is going to give evidence...

MR BOYTON: Yes. Well, that’s correct, but...

COURT: ...so I mean, is it...

Q. But whilst making your opinion, you did study Dr Choi’s report, didn’t you, doctor?

A. Oh, yes. Oh, boy.

COURT: Well, did you make your own diagnosis, or were you relying on Dr Choi’s diagnosis?

A. Oh, no, sir. I made my own diagnosis.

Q. So your diagnosis is consistent with Dr Choi, is that right?

A. Yes. Yes.

Q. And I believe it’s paragraph 10, is it not, of Exhibit D2, ‘In my opinion’...

A. Yes.

Q. ‘...Husnain has longstanding history of polysubstance abuse and he is currently suffering from a persistent and active psychotic disorder, for the period of psychiatric observation and investigation that I require before the exact diagnosis could be made.’

A. Yes, there are actually several reports done and Dr Choi has also pointed out that it is an active substance-induced psychotic disorder.

Q. Right.

A. Is probably the right term.

Q. So, basically, what you’re saying is, and correct me if I’m wrong, he had this psychotic disorder due to drug dependence?

A. Yes.”[23]

(Emphasis added)

76.  A number of features of this transcript concerned us as on its face the answers of Dr Tam did not match the evidence. Dr Choi did not give three diagnoses, did not give several reports and his one report did not use the phrase “active substance-induced psychotic disorder”. It appeared that Dr Tam may have been confusing Dr Choi with Dr Chow.  When we played back the DARTS recording it was quite clear that in the third-last answer above Dr Tam did not say Dr Choi but instead said Dr Chow.  He was in fact specifically endorsing Dr Chow’s SIPD diagnosis.

77.  Whenever a jury has complex legal and factual issues to address, the assistance of the judge will be crucial to their deliberations and the safety of their verdict.  In the present case the legal direction of the judge cannot be criticised.  But in order to properly apply those directions the jury had to have an accurate appreciation of the quite technical medical evidence.  This was especially so in the present case where there were two bases of the defence of diminished responsibility and each had quite different issues, both factual and legal, relating to them.  In the context of the SIPD basis of the defence it was important that the jury realise that there was, in reality, a consensus amongst the medical experts that the appellant suffered from this psychosis and that there was much in the way of credible evidence, independent of the appellant, to support such a diagnosis.

78.  We are satisfied that in the present case the evidence in support of the SIPD based defence of diminished responsibility was not properly left to the jury and that as a consequence the verdict of the jury is not safe.  The appeal must be allowed and the conviction for murder set aside.

9.     Consequential order

79.  Having quashed the conviction for murder we had to decide what further order we should make in respect of the appellant.  There were two options open to us. The first was to order a retrial if we were persuaded that “the interests of justice so require”[24]. The second option was to substitute a verdict of manslaughter, based on diminished responsibility, for the jury’s verdict of murder.  This second option would be in exercise of the power granted to the Court of Appeal by section 83A(2) of the Criminal Procedure Ordinance, Cap 221.

80.  Mr Boyton urged us to employ the latter option of a substituted verdict of manslaughter and not to order a retrial.  He submitted that the preconditions to the exercise of the section 83A(2) power are satisfied and that given the procedural and evidential history of the case we should exercise our discretion by substituting a verdict of manslaughter for the verdict of the jury and not order a retrial.

81.  Mr Man, in his written submissions accepted that we had the power under section 83A(2) to substitute a verdict of manslaughter for the verdict of the jury and did not oppose such a course of action for this appellant and was not applying for a retrial. Section 83A provides

“83A. Power to substitute conviction of alternative offence

(1) This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.

(2) The Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorized by law for the other offence, not being a sentence of greater severity.” (Emphasis added)

82.  In a nutshell sub-section (1) contains the prerequisite conditions that have to be met before the court may access the power contained in sub-section (2).  Sub-section (2) makes it clear that the exercise of the power is discretionary.

83.  Section 83A was the subject of judicial comment by the Court of Final Appeal in Hau Tung Ying v HKSAR.  Chan PJ, in giving a judgment with which the other members of the court agreed, said of section 83A:

“62. It is clear on a true construction of s.83A and from the authorities referred to in Spies v The Queen that in order to invoke s.83A, two conditions have to be satisfied.

63. First, the substituted verdict must be one for an offence of which ‘the jury could on the indictment have found him (the accused) guilty’; that is to say, it must be for an offence which is open on the indictment. This is often the case where the substituted offence is laid as an alternative charge in the indictment or where there are alternatives available under the law to the convicted offence. Normally, these would be lesser offences, such as manslaughter in a case of murder or theft in a case of robbery, but that is not necessarily the case and would require consideration of the nature of both the convicted and substituted charges in question and the alleged facts sought to be proved in support of either charge. (See the examples of substituted offences in Spies v The Queen, p.611 paras.23-25 and also Calabria v The Queen (1982) 151 CLR 670, 676.)

64. The second condition is that it must be clear to the appellate court that ‘the jury must have been satisfied of facts which proved him (the accused) guilty of the other offence’. The court must be satisfied that the jury must have made a finding of the relevant facts. It is not sufficient that the court considers that the jury would have or might have been satisfied of the relevant facts. The court must also be satisfied that the facts found by the jury are facts which must be proved to support a conviction on the other charge. As Widgery CJ in R v Deacon [1973] 1 WLR 696 , 699 said in relation to a similar English provision:

The basis of the power to substitute a verdict for a different offence must … be based on the finding of the jury. It is only when it appears to the court from the finding of the jury that the facts essential to establish the alternative offences were proved, that the court may substitute the alternative verdict. Unlike section 2 [the proviso], the Act does not authorize the court to act on the footing that the court is satisfied that the jury would have brought in the alternative verdict if properly instructed. What is necessary is that the findings of the jury themselves must establish the appropriate facts to support the alternative offence.”[25]

84.  In respect of this appellant it is not disputed that the first pre‑condition is satisfied.  This is a legal pre-condition which in the present case is satisfied for, as Chan PJ indicated above, manslaughter is an alternative verdict under the law to the offence of murder.

85.  The second pre-condition requires a consideration of the way the trial was conducted, what the issues were and what evidence was adduced.  These matters are relevant to the Court of Appeal determining the question of whether “the jury must have been satisfied of facts which proved him [the defendant] guilty of the other offence.”  For the offence of manslaughter those facts are that the defendant deliberately and unlawfully killed the victim.

86.  In this trial the appellant did not deny intentionally assaulting his girlfriend thereby causing the injuries to her which led to her death.  The only element of manslaughter that he challenged was that his killing of her was unlawful and he did this by relying on the defence of self-defence.  But this defence was clearly rejected by the jury who must have found, by their verdict, that the killing was, in fact, unlawful.  All the appellant’s other defences only went to reducing his offence to manslaughter and concerned his mental state at the time he assaulted the deceased and his intent when doing so.  It, therefore, appears to us that the jury must have been satisfied of facts which proved the appellant guilty of manslaughter.  Thus, the second pre-condition is satisfied.

87.  Being persuaded that the section 83A(1) conditions have been met, the section 83A(2) power becomes available to us. Whether we should exercise the power, or order a retrial, requires us to determine where the interests of justice lie.

88.  As we have set out in this judgment, the Director of Public Prosecutions had, from an early stage, formed the view that this was a suitable case for him to accept a plea to the offence of manslaughter in satisfaction of the indictment.  Ultimately, he was dissuaded from that course.  But when all of the evidence is analysed it is clear that in respect of SIPD there was in fact a consensus amongst the medical professionals and there was much evidence independent of the appellant to support the SIPD diagnosis.  We were convinced that this is very much a case of manslaughter by reason of diminished responsibility.

89.  In Robinson v State[26] the Privy Council was dealing with an appeal from the Court of Appeal of the Republic of Trinidad and Tobago, which jurisdiction had similar law to Hong Kong in respect of murder and the defence of diminished responsibility.  At the trial of this case the initial stance of the State was that it would accept a plea of guilty to manslaughter on the basis of diminished responsibility but in the end the prosecuting counsel formed the view that, notwithstanding that he had no medical evidence that contradicted the defence medical evidence, he ought not to accept the defence and should instead challenge, through cross-examination, the evidence in support of it.  This prompted the Board, whose judgment was given by Lord Hughes, to make the following observations on the propriety of accepting pleas of guilty to manslaughter based on diminished responsibility:

“[28] There is no doubt that in the early days of the partial defence in England and Wales, whilst the courts were adjusting to its arrival in 1957, the view was taken that an assertion of diminished responsibility ought to be subjected to particularly careful scrutiny. In R v Matheson [1958] 2 All ER 87 the Court of Criminal Appeal concluded that the evidence of the psychiatrists was so clear that the verdict of guilty of murder was not safe, but it recorded the then resolution of the judges of that court generally that a plea of guilty ought not to be accepted, but rather that the issue ought to be determined by a jury. That was a judge-made rule of practice, and was so described by Lord Goddard CJ in Matheson. By 1962 the judges of the Court of Criminal Appeal generally had resolved that it was a practice which ought no longer to be followed: see the historical review by Lawton LJ in R v Vinagre (1979) 69 Cr App R 104, itself a case in which the acceptance of a plea was understandably thought to have been inappropriate on the facts. Lawton LJ explained in Vinagre that the practice had been changed because of judicial experience of distressing trials in which uncontroversial evidence of acts committed when the defendant was plainly mentally imbalanced was unnecessarily rehearsed at length.

[29] Since 1962 it has been the plainly accepted practice in England and Wales to accept pleas of guilty to manslaughter by reason of diminished responsibility where, on careful analysis, it is plain to the Crown that that is the right outcome. … It remains of great importance that pleas are accepted only in cases where it is proper to do so. Generally that means cases where there is no significant material dispute either of underlying fact or of medical analysis, and moreover it is clear that the defendant’s mental responsibility for the killing can properly be described as substantially impaired. There may still be the very occasional case which is of such public profile or concern that it has to be the subject of full trial. … So long as this careful consideration is given to each case, it is plainly of public benefit for pleas of guilty of manslaughter to be accepted. This avoids trials on non-issues which will be both expensive to the public and distressing to many of those involved, whether as witnesses, or relatives of the deceased, or as defendants and their families.”[27]

We agree with these observations.

90.  We were of the view that the interests of justice did not require us to order a retrial.  In fact the interests of justice required the very opposite.  We had no doubt that the original decision of the Director of Public Prosecutions was the correct one, especially once we had enjoyed the benefit of reading the evidence of all three psychiatrists.  Here the evidence showed that at the time of the killing the appellant was, in the words of Lord Hughes, “plainly mentally unbalanced” and that questions of whether he suffered from SIPD and whether that disorder “substantially impaired his mental responsibility for his acts” were, in reality, “non-issues” which to unnecessarily rehearse at length would only be “both expensive to the public and distressing to many of those involved, whether as witnesses, or relatives of the deceased, or as defendants and their families.”

91.  For these reasons we substituted a conviction for manslaughter for the verdict of the jury.

10.     The re-sentencing of the appellant

92.  Having substituted a conviction for manslaughter for the conviction for murder it became necessary for us to re-sentence the appellant.  To assist us in assessing a just sentence we called for an up to date psychiatric report on the appellant.

10.1   The psychiatrist’s report

93.  The report set out the treatment given to the appellant and his progress in responding to it.  Dr Jessica PY Lam said in her reports:

“… He was prescribed with medications on 3 May 2016. His mental condition gradually improved and he gained insight into his mental illness and substance use. He has been in full remission since Sep 2016. His antipsychotic medication was gradually tailed off since Oct 2016 and was stopped on 5 Dec 2016 as he refused the medications due to side effects. He was arranged to have follow-up at SLPC regularly, and was noted to be stable in mental condition with full remission of psychotic features.

Collateral information from his younger brother

8. HUSNAIN’s younger brother visited HUSNAIN regularly throughout the years. He reported HUSNAIN being mentally stable with no abnormal behaviour. HUSNAIN had no report of non-existing voices or abnormal beliefs even after the medications were stopped. He reported HUSNAIN expressed determination in maintaining abstinence from substance use and learnt of the hazards of substance abuse from what he had experienced in the index offence.”

94.  Under the heading “Present mental state examination” Dr Lam said of the appellant:

“… He had good eye contact and was spontaneous. His speech was relevant and coherent, with no formal thought disorder. His mood was neutral with reactive and congruent affect. He had no suicidal or violent idea. He had no delusion or hallucination. He was oriented. He had fair insight into his mental condition, and was full aware of the hazards of illicit drugs. He was remorseful towards his act.”

95.  She concluded her assessment of the appellant by saying:

“15. HUSNAIN has been mentally stable with full remission of hallucinations and delusions over the years even after medication was stopped. He was cooperative with follow-up appointments and showed good insight into his substance use. He was fully aware of the hazards of the substance use, and the impact could be so severe that it costed the life of his girlfriend and his imprisonment. He was remorseful towards his act. He reported having no contact with his peers who also had substance abuse problems. He denied having psychological craving towards substance use. Given that HUSNAIN could remain abstinent from substance use, HUSNAIN’s psychotic features would likely remain in remission, and his violence risk under psychotic influence would be low.

16. For disposal, as mental condition of HUSNAIN is currently stable without any mood disturbance or psychotic experience, he does not require psychiatric inpatient treatment. However, I would respectfully recommend him to continue with psychiatric outpatient treatment to monitor his substance abuse problem and mental condition, especially when he is discharged back to the community in the future when he has chance to have possible exposure to illicit substances again.”

10.2   The appellant’s submissions on sentence

96.  In his submissions Mr Boyton pointed out that Hong Kong courts have consistently applied the sentencing principles set out by the English Court of Appeal in R v Chambers[28], a case which was discussed by Stock VP, as Stock NPJ then was, in HKSAR v Chiu Wai Kan Vicken (No 2)[29].  In his judgment in this case Stock VP set out a more policy based and principled approach to the sentencing of offenders whose mental responsibility for their violent acts was substantially impaired because of a psychosis from which they suffered but which had been brought about by their voluntary abuse of drugs.

97.  Mr Boyton argued that the appellant was a candidate for a determinate sentence because he was not in need of medical treatment, and so a hospital order was not appropriate, and because he was not a long term threat to the community, and so a sentence of life imprisonment was not appropriate.

98.  On the issue of whether the appellant might be a danger to the community Mr Boyton wrote in his Submissions on Sentence:

“The risk of reoffending (because this was not an innate disease) will depend on the court’s assessment of his possible future ‘severe’ addiction and relapse into the associated psychosis.”

99.  On the court’s assessment of the appellant’s culpability Mr Boyton argued that the court could be satisfied, unlike the Court of Appeal in Vicken Chiu (No 2), that the substantial impairment was due to SIPD, and not a stimulant use disorder, and that was a reason for imposing on the appellant a sentence lower than the 10 year sentence imposed in Vicken Chiu (No 2).

100.  Mr Boyton also referred to the England and Wales Sentencing Council’s definitive guidelines and submitted that an application of those guidelines would suggest an appropriate starting point, before discount for the plea of guilty, was within the medium range for sentencing.  This is a range of 10-25 years’ imprisonment with a starting point of 15 years’ imprisonment.

10.3   The respondent’s submissions on sentence

101.  The respondent did not submit that either a hospital order or a sentence of life imprisonment is appropriate.  In respect of a determinate sentence Mr Man, who was not able to appear before us, referred us in his written submission to the relevant sentencing principles, both in Hong Kong and England and Wales.    

11.     The sentence of the court  

102.  The sentencing of manslaughter is always a difficult exercise simply because the offence encompasses such a huge range of culpability.  That is so even when a person is guilty of the offence by operation of the defence of diminished responsibility.  The extent to which an offender’s mental responsibility was substantially impaired will vary from case to case as will the risk that the offender might pose to the public.

103.  From the up-to-date psychiatric report on the appellant, two things are clear.  The first is that the appellant is not a candidate for a hospital order and the second is that he is not such a danger to the public that a sentence of life imprisonment is appropriate.

104.  This leads us to an assessment of his culpability in order to reach a view as to the appropriate length of a determinate sentence. Assessing his culpability inevitably requires us to determine how the appellant’s addiction to Ice and cannabis is to be treated.  Performing this task in respect of an offender whose murderous conduct has been reduced to manslaughter by reason of the defence of diminished responsibility based upon a psychosis induced by voluntary substance abuse, has special considerations.  In this respect, the following comments of Stock VP in Vicken Chiu (No 2) are apposite to the position of this appellant:

“… But where an accused has become addicted to alcohol or drugs he must, generally, be treated as carrying responsibility for that state of affairs, especially where he has sought no assistance to take himself out of the cycle. And it follows that whilst his culpability for the act of killing is diminished by reason of his mental condition, the degree of diminishment is itself affected by the circumstances which created that condition.”[30]

105.  In so saying, Stock VP aligned himself with the observations of Spiegelman CJ (as Spiegelman NPJ then was) in R v Henry[31] where he said:

“[196] It was submitted that the degree of moral culpability of a particular offender is diminished by addiction. Evidence was put before the Court that there is, at least in some cases, a genetic predisposition to addiction and that addiction generally is not simply a state of mind but has a neurobiological and physiological base. It was put that an addict’s decision to perform a criminal act was not ‘a completely free choice’.

[197] In my opinion drug addicts who commit crime should not be added to the list of victims. The degree of moral culpability will vary, just as it varies with individuals who are not affected by addiction. There are a number of aspects of the relationship between drug addiction and crime which indicate that moral choices are made.

[198] First is the original decision to experiment with drugs which, in the usual case, is a completely free choice. The addictive quality of drugs, together with the anti-social behaviour which so commonly results from addiction, is so widely known that persons who choose a course of addiction must be treated as choosing its consequences.

…

[201]    ... individuals do emerge from addiction. They do so with difficulty and generally need significant amounts of help. The decision to persist with an addiction, rather than to seek assistance, is also a choice.”

106.  What Stock VP called the choice factor is particularly relevant where there may be no other explanation for the offender’s continued addiction to drugs.  For example, if addiction started, or restarted, because of some traumatic event in the offender’s life then that may, to some degree, lessen his culpability.  But, even for these offenders, the sentencing principles of denunciation and deterrence are still relevant and must be accommodated when determining the appropriate length of sentence.

107.  In the present case the appellant’s deteriorating mental condition was noticed by both family and friends and he was encouraged to do something about his addiction.  As Mr Boyton noted in his written submission, the appellant’s sisters actually went so far as to make two separate reports to Tuen Mun Police Station in respect of the appellant’s erratic behaviour.  But the appellant took no notice of the advice he was given and even ignored the fact that he was having psychotic episodes.  As Stock VP made clear in Vicken Chiu (No 2), doing nothing is also a choice.

108.  It has become a practice in our courts for sentencers of offenders convicted of manslaughter to not indicate a starting point.  This is a practice that has been endorsed by the Court of Appeal for the reason that manslaughter is an offence that can be committed in a large range of circumstances encompassing an equally large range of culpability resulting in a wide sentencing range from a non-custodial sentence to life imprisonment. The rationale for this practice was explained by Stuart-Moore VP in HKSAR v Wong Shui Mouk[32].

14.     There are, we should add, sound and pragmatic reasons for a judge who is called upon to decide an appropriate level of sentence for manslaughter, after weighing in the balance the many factors in aggravation and in mitigation which are often present in such cases, to do so without first indicating a starting point.  This is one category of offence which can vary so greatly in gravity and can be affected by so many considerations, both adverse and favourable to a defendant, that a starting point becomes a hindrance and an irrelevance in the quest for a just resolution to this complicated task. In R v Lee Sau-ping, CACC 189/1995, Chan J, as he then was, expressed the difficulty as follows:

‘… This is one class of offence where a judge may well not be able conscientiously to fix a starting point. There is a wide-range of sentence, from probation to life imprisonment. A sentencing judge may well feel having taken an overall view of the matter that all he can finally do is to decide on the appropriate sentence.’

Whatever way the delicate balance is achieved when arriving at an appropriate sentence for manslaughter, it is unlikely, at least in many such cases, that it will be of any real assistance to take a formal starting point.”

109.  Thus, although a sentencing judge is not obliged to indicate a starting point there is, equally, nothing to stop the judge from doing so.[33] 

110.  Although we can well understand the difficulties that sentencers face with manslaughter offenders we would not, ourselves, discourage judges from indicating a starting point.  The modern approach to judicial decision-making is to require judicial officers to explain the reasoning that lies behind, and provides support for, the decisions they make.  Indicating a starting point, whenever possible, will help bring focus to a sentencer’s reasons for sentence and should assist the sentencer in crafting well thought-out and carefully analysed reasons for sentence.  It will also make the sentencing process more transparent which can only be of assistance to those advising the offender and to appellate courts who may be called upon to review the sentence. 

111.  Furthermore, not indicating a starting point, seems to us, with respect, a little pointless.  If an offender is convicted after trial then the sentence imposed will often, in reality, reflect a starting point if there is little in the way of mitigation that would operate to afford the offender a discount.  Even on a plea of guilty, the starting point can readily be calculated when everyone knows that the only discount usually afforded an offender is the one-third discount for his plea of guilty.  By employing a bit of arithmetic a person can readily reverse engineer the sentence to calculate what the starting point must have been.

112.  In respect of the appellant we shall indicate our starting point.

113.  We agree that the appellant would, in the English guidelines, fall within the medium range.  As we have said, this appellant consciously made the decision to take no action in respect of his addiction and such a choice must be denounced by the courts and deterred by the sentences it imposes.  The substantial impairment of his mental responsibility for his actions was due to his psychosis but that psychosis did not prevent him from being aware that his addiction was causing him problems or from realising that he needed to take action in respect of his abuse of drugs.  His addiction may have caused in him a sense of helplessness but the reality is that he chose to give in to his addiction because it was the easier course to adopt, compounded, perhaps, by the fact that, with the assistance of the deceased he had ready access to a free supply of drugs.  He made the choice to live with his addiction rather than to do something about it. 

114.  We are satisfied that the appellant poses no risk to the community upon his release should he abstain from drugs.  His awareness of the dangers of drugs to him, his realisation of what they caused him to do and the consequences of those actions not only to himself but to all those for whom he cares, have made him genuinely remorseful.  Hopefully, all of these matters will be sufficiently strong motivation for him not to relapse into drug addiction.  However, it goes without saying, that upon his release he will have to be monitored and he will need the support of all those around him in his endeavours to rehabilitate himself.  

115.  We see little to distinguish this case factually from the Vicken Chiu (No 2) case where a sentence of 10 years’ imprisonment was imposed on an offender who had pleaded guilty to manslaughter on his arraignment.  In these circumstances we are of the view that an appropriate starting point for his sentence is 15 years’ imprisonment.

116.  We must now turn to the issue of what discount we should award the appellant for his offer to plead guilty to manslaughter.

117.  As a matter of principle we accept that an offender should be accorded a full one-third discount from the starting point of his sentence if he has at all times offered to plead guilty to manslaughter and in none of his trials has he ever sought a complete acquittal.  This is in accordance with the law as laid down by the Court of Appeal in HKSAR v Francisco Reynaldo[34] and, as was noted by a differently constituted Court of Appeal in HKSAR v Wong Kam Shing, Jackie[35], is now settled by the Determination of the Appeal Committee of the Court of Final Appeal in Sze Kwan Lung & Ors v HKSAR[36]. 

118.  But if an offender whose plea offer is rejected goes to trial relying on a defence which, if successful, will result in his complete acquittal, then the law is equally clear that he will not normally be accorded the full one-third discount, but instead something less.  Here the appellant relied at trial on the defence of self-defence, which would, if successful, have resulted in his complete acquittal.  A strict application of the legal principles would mean that he should receive something less than a full one-third discount for his offer to plead guilty to manslaughter.

119.  We have given this matter anxious consideration.  If one thing is clear about this case, it is that it is not a “normal” case.  This much is apparent from the procedural history of the pre-trial plea negotiations.  A plea agreement was reached and endorsed at a high level within the Prosecutions Division of the Department of Justice.  We have indicated that we are of the view that this was a proper case for a plea to be accepted to manslaughter on the basis of diminished responsibility.  There was no need for a trial and it would have been quite proper for the Director of Public Prosecutions to have remained firm in his decision to accept the plea offer in satisfaction of the indictment for murder.  In these quite unusual circumstances we are of the view that the appellant should, exceptionally, be awarded a full one-third discount for his offer to plead guilty to manslaughter. 

120.  That, being so the starting point of 15 years becomes 10 years’ imprisonment and that is the sentence we imposed on the appellant.

12.     Disposition

121.  For these reasons we granted the appellant leave to appeal and treating the hearing of the application as the hearing of the appeal we quashed the conviction for murder.  Exercising our powers under section 83A(2) of the Criminal Procedure Ordinance, Cap 221 we substituted a conviction for manslaughter and sentenced the appellant to 10 years’ imprisonment. 

[1] Appeal Bundle, page 316I-K.

[2] Appeal Bundle, page 352R-S.

[3] Appeal Bundle, page 238.

[4] Appeal Bundle, page 273.

[5] Appeal Bundle, page 166L-U.

[6] Appeal Bundle, page 152F-G.

[7] Appeal Bundle, page 167B.

[8] Appeal Bundle, page 152K-L.

[9] Appeal Bundle, pages 163I-164J.

[10] Appeal Bundle, page 166B–D.

[11] Appeal Bundle, page 246, paragraph 5. 

[12] Appeal Bundle, page 246, paragraph 6.

[13] Appeal Bundle, pages 246-247.

[14] Appeal Bundle, page 185I-M.

[15] Appeal Bundle, page 238, paragraph 2.

[16] Appeal Bundle, page 307Q–R.

[17] Appeal Bundle, page 305I-J.

[18] Appeal Bundle, page 34E.

[19] Appeal Bundle, page 37G-H.

[20] Appeal Bundle, page 37D-E.

[21] Appeal Bundle, page 79L-M.

[22] Appeal Bundle, page 247, paragraph 10.    

[23] Appeal Bundle, pages 165A-O.

[24] Section 83E(1) of the Criminal Procedure Ordinance, Cap 221.

[25] (2011) 14 HKCFAR 453, 475.

[26] [2016] 2 LRC 251.

[27] Robinson v State [2016] 2 LRC 251, 266-267, [28]-[29].

[28] (1983) 5 Cr App R (S) 190

[29] [2011] 5 HKLRD 422

[30] [2011] 5 HKLRD 422, 430 at [31].

[31] (1999) 46 NSWLR 346, 385

[32] HKSAR v Wong Shui Mouk CACC 239/2007, unreported, 12 June 2008 at [14].

[33] See for example HKSAR v Wong Kam Shing, Jackie [2010] 4 HKC 580, at 583, [18].

[34] [2000] 3 HKLRD 688

[35] [2010] 4 HKC 580, 585 at [30].

[36] FAMC 1 & 2/2004, unreported, 5 March 2004.