HKSAR v. NG MEI LAN

CACC149/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 149 OF 2008

(ON APPEAL FROM HCCC NO. 257 OF 2007)

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REASONS FOR JUDGMENT

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Saw J (giving the judgment of the Court) :

1. The applicant was charged with :

(1)     manslaughter, contrary to common law and punishable under section 7 of the Offences Against the Person Ordinance, Cap. 212; and

(2)     arson with intent, contrary to sections 60(2) and (3) and 63(1) of the Crimes Ordinance, Cap. 200.

2. On 25 March 2008, a jury was empanelled pursuant to section 75 of the Criminal Procedure Ordinance, Cap. 221 to determine whether or not the applicant was fit to be tried.

3. On 26 March 2008, that jury unanimously determined that the applicant was not fit to be tried.  There is no issue taken with this part of the proceedings.

4. On 31 March 2008, the judge raised with counsel the matter which now forms the grounds of appeal in these proceedings, namely, whether section 75A of the Criminal Procedure Ordinance, Cap. 221 required another jury to be empanelled to determine whether the applicant did the acts charged.  The issues were canvassed extensively and much of the discussion focused on the English Court of Appeal decision in R. v. O’Donnell [1996] 1 Cr.App.R. 286 and the relevant English legislation.

5. The issue was, as McMahon J indicated at trial, a matter of the correct interpretation of the relevant provisions.

6. On 1 April 2008, the judge ruled that in the circumstances that prevailed, it was not necessary for a separate jury to be empanelled to determine whether or not the acts alleged had been proved, pursuant to section 75A.   Thereafter, the prosecution adduced evidence seeking to establish that the applicant did the acts which were the substance of the counts upon which she was originally to have been tried namely : the act of killing in the case of the manslaughter count and the act of setting the fire in the arson count.

7. On 2 April 2008, the jury determined in the case of each count that the applicant did the act charged.

8. The applicant was subsequently ordered to be detained in Siu Lam Psychiatric Centre, pursuant to section 76(2)(a)(i) and Schedule 4 of Cap. 221.

9. The applicant filed notices for leave to appeal both conviction and sentence.  Ultimately she did not pursue the application for leave to appeal sentence and we dismissed it.  At the conclusion of the hearing on 7 January, 2008, we dismissed the application for leave to appeal conviction.  These are our reasons.

10. The charges arose out of events that took place in the early hours of 2 May 2007 in Room 2029, Hing Cheung House, where the applicant lived with her daughter, Yeung Man Fung.  Some time around 5:30 a.m. a fire broke out.  When the firemen gained entry to the premises, they found the applicant and her daughter lying on the floor.  They were both unconscious, but were resuscitated and taken to hospital.  The applicant survived but her daughter did not.  She is the person named as the victim in the manslaughter count.

11. It was the prosecution’s case that the applicant deliberately started the fire which led to the death of her daughter.  It was part of the prosecution’s case that the applicant had, in letters written to the police in June 2007, admitted that she had started the fire in the flat by lighting newspapers.  In another letter written to the police in July 2007, she admitted starting the fire “carelessly”. 

12. There was also evidence from one of the neighbours who had overheard the daughter pleading with her mother to open the door to the apartment.  There was evidence from an expert fire officer that the fire apparently had been started on the lower bunk bed.  Another expert witness said that in his opinion a naked flame had been applied to the bedding on the lower bunk bed.

13. It suffices to say that there was an abundance of evidence to support the prosecution’s case that the applicant deliberately set fire to the bunk bed in the flat and that, as a direct consequence, her daughter had died.

Grounds of appeal

14. Mr Selwyn So on behalf of the applicant advanced only three of his five original grounds of appeal.

15. Grounds 1 to 3 can properly be taken together.  They are to the effect that there was a material irregularity in the proceedings in that the jury which determined that the applicant was unfit to be tried pursuant to section 75, Cap. 221, was the same jury which determined that the prosecution had proved the acts charged pursuant to section 75A, Cap. 221.  The substance of Mr So’s submission is that a separate jury had to be empanelled for the section 75A proceedings.

Discussion

16. To understand the intent of section 75A properly, it is necessary to have regard to section 75 which, insofar as is relevant, reads :

“(1)    This section applies where on the trial of a person the question arises (at the instigation of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Ordinance it would constitute a bar to his being tried.

(2)     The court, if having regard to the nature of the supposed disability is of opinion that it is expedient so to do and in the interests of the accused person, may postpone consideration of the said question (hereinafter referred to as ‘the question of fitness to be tried’) until any time up to the opening of the case for the defence, and if before the question of fitness to be tried falls to be determined the jury return a verdict of acquittal on the count or each of the counts on which the accused person is being tried that question shall not be determined.

(3)     Subject to subsection (2), the question of fitness to be tried shall be determined as soon as it arises.

(4)     The question of fitness to be tried shall be determined by a jury, and –

(a)   where it falls to be determined on the arraignment of the accused person, then if the trial proceeds the accused person shall be tried by –

(i)    where paragraph (a) of the definition of ‘court’ is applicable, a jury other than the jury which determined that question;

(ii)   in any other case, the same jury which determined that question;

(b)   where it falls to be determined at any later time, it shall be determined by –

(i)    where paragraph (a) of the definition of ‘court’ is applicable, a separate jury or the jury by whom the accused person is being tried, as the court may direct;

(ii)   in any other case, the same jury by whom the accused person is being tried.

(5)     …

(6)     In this section –

‘court’ (法庭) means –

(a)   the Court of First Instance acting in the exercise of its criminal jurisdiction; (Amended 25 of 1998 s.2)

(b)   the District Court acting in the exercise of its criminal jurisdiction; or

(c)   a magistrate;

‘verdict of acquittal’ (無罪的裁決)does not include a special verdict that the accused person is not guilty by reason of insanity.  (Replaced 37 of 1996 s. 3)”

17. What is apparent from the words of section 75 is that in a trial in the Court of First Instance of the High Court, if the issue of the fitness of a defendant to be tried arises at the time of arraignment, a jury must be empanelled to determine that as a preliminary issue.

18. Paragraph 4(a) provides that if the trial thereafter proceeds, that is to say if the jury determines that the defendant is fit to be tried, then another jury must be empanelled for the trial.  

19. There may be very good reasons for this and the most obvious is that in all probability the jury will have already heard evidence from experts and possibly the defendant.  They will have heard of necessity some evidence as to the nature and circumstances of the alleged offence.  They may have made findings adverse to the defendant, which may include findings which reflect upon credibility.  In those circumstances, were they then to proceed to determine the defendant’s guilt or innocence, then they would have to do so having already heard evidence which may have been inadmissible.  If the issue arises after the arraignment, the situation is different.  Up to that point the trial will have proceeded in the normal way.  Evidence more prejudicial than probative will have been excluded.  Evidence irrelevant to the matters in issue will not have been placed before the jury.  

20. On the other hand, if the jury has determined that the defendant is not fit to be tried, then section 75A is engaged.

21. Section 75A reads :

“(1)    Where in accordance with section 75 it is determined by a jury that an accused person is under disability, then –

(a)   without prejudice to any proceedings for the purposes of paragraph (b)(ii), the trial shall not proceed or further proceed;

(b)   the jury shall determine –

(i)    on the evidence (if any) already given in the trial; and

(ii)   on such evidence as may be adduced or further adduced by the prosecution or adduced by a person appointed by the court for the purpose of this section to put the case for the defence, whether they are satisfied, as respects the count or each of the counts on which the accused person was to be or was being tried, that he did the act or made the omission charged against him as the offence;

(c)   if the jury are so satisfied as respects that count or any or those counts, they shall make a finding that the accused person did that act or made that omission;

(d)   if the jury are not so satisfied as respects that count or any those counts, they shall return a verdict of acquittal as if on the count concerned the trial had proceeded to a conclusion.

(2)     …

(3)     For the avoidance of doubt it is hereby declared that –

(a)   evidence that may be adduced under subsection (1)(b)(ii) includes the testimony of witnesses;

(b)   the law applicable in criminal proceedings shall be the law applicable in any proceedings arising under subsection (1)(b).”

22. We observe at the outset that a determination pursuant to section 75, that the defendant is under a disability, brings the trial to a halt.  What takes place thereafter is not a trial.  Section 75A(1)(a) makes that clear.  Instead there is a determination of whether the defendant did the acts which are the substance of the offences charged.  It is plainly intended that the same jury that made the determination pursuant to section 75, should then consider the issues raised by section 75A.  This is apparent from the language used by the draftsman.

23. The use of the expression “where in accordance with section 75, it is determined by a jury that an accused person is under disability” cannot have been intended to require a second jury to be empanelled to determine whether the defendant did the acts which are the substance of the offences in section 75(A)(1).  The use of the expression “a jury” in section 75 is followed by the expression “the jury” in section 75A(1)(b) which confirms, in our opinion, that it is intended to be the same jury which will determine both issues.

24. Mr Selwyn So on behalf of the applicant submitted that section 75(4)(a)(i) :

“… established clearly the intention of the legislation that the jury hearing and determining the fitness issue should not be the same jury hearing and determining the trial.”

We do not agree.  Section 75(4)(a)(i) requires a new jury to be empanelled only if the defendant is determined not to be under a disability.  If he is determined to be fit to be tried, then the defendant is arraigned and tried by a second jury.

25. Much of the time in the court below was taken up with a comparison of the Hong Kong provisions and the equivalent English legislation upon which the Hong Kong provisions had been originally modelled.

26. Section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 provides as follows :

“Finding of unfitness to plead

4.-(1) This section applies where on the trial of a person the question arises (at the instance of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Act it would constitute a bar to his being tried.

(2)     If, having regard to the nature of the supposed disability, the court are of opinion that it is expedient to do so and in the interests of the accused, they may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence.

(3)     If, before the question of fitness to be tried falls to be determined, the jury return a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question shall not be determined.

(4)     Subject to subsections (2) and (3) above, the question of fitness to be tried shall be determined as soon as it arises.

(5)     The question of fitness to be tried shall be determined by a jury and –

(a)   where it falls to be determined on the arraignment of the accused and the trial proceeds, the accused shall be tried by a jury other than that which determined that question;

(b)   where it falls to be determined at any later time, it shall be determined by a separate jury or by the jury by whom the accused is being tried, as the court may direct.

(6)     A jury shall not make a determination under subsection (5) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

Finding that the accused did the act or made the omission charged against him

4A.-(1) This section applies where in accordance with section 4(5) above it is determined by a jury that the accused is under a disability.

(2)     The trial shall not proceed or further proceed but it shall be determined by a jury –

(a)   on the evidence (if any) already given in the trial; and

(b)   on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,

whether they are satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

(3)     If as respects that count or any of those counts the jury are satisfied as mentioned in subsection (2) above, they shall make a finding that the accused did the act or made the omission charged against him.

(4)     If as respects that count or any of those counts the jury are not so satisfied, they shall return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.

(5)     A determination under subsection (2) above shall be made –

(a)   where the question of disability was determined on the arraignment of the accused, by a jury other than that which determined that question; and

(b)   where that question was determined at any later time, by the jury by whom the accused was being tried.”

27. What is immediately apparent from a comparison of the two sets of provisions is that, when the English provisions were adapted for use in Hong Kong, a significant distinction was drawn between the English provisions and section 75A, Cap. 221.

28. In the English provisions, if the original determination that the defendant was not fit to be tried was made on the arraignment, section 4A(5) required there to be a separate jury to be empanelled to determine whether the accused did the acts alleged whereas, in Hong Kong, the view has been taken that a second jury would serve no useful purpose. 

29. Accordingly, we are in agreement with the judge's conclusion that the same jury should determine both issues.

30. Leave was refused and the application dismissed.