HKSAR v. LI CHEUNG CHOI

CACC 210/2018

[2021] HKCA 1278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2018

(ON APPEAL FROM HCCC 348 OF 2016)

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J U D G M E N T

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

A. Introduction

1.  The applicant was indicted for the murder of his wife, Li Liya (“the deceased”) contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212.  He was convicted on 11 July 2018, following a trial before Toh J (“the judge”) and a jury in the Court of First Instance.

2.  By a Notice of Application for leave to appeal, the applicant applied for leave to appeal against his conviction. 

3.  At the original hearing of the application on 18 October 2019 it became apparent that further transcript of the trial would be needed and that there may also be a need for the Perfected Grounds of Appeal to be amended.  The appeal was adjourned and the applicant subsequently filed Amended Perfected Grounds of Appeal Against Conviction. 

4.  At the resumed hearing of the application we reserved our judgment.  This is our judgment.

B.     The trial

5.  The applicant pleaded guilty to manslaughter but his plea was not accepted by the prosecution.  The plea offer was based on the applicant having suffered from diminished responsibility at the time of the killing.  Thus, the only issue at trial was whether the defence of diminished responsibility was made out.  No other defence was raised by him. 

B.1    The prosecution case

6.  The applicant and the deceased had travelled from Shenzhen to Hong Kong on 13 October 2015, and stayed overnight at the “iclub” Hotel at Fortress Hill.  On 14 October 2015 they flew to Manila.  The applicant returned to Hong Kong the same day but the deceased did not return until 23 October 2015.  On that day, at 11:38 hours, the applicant met the deceased at the Hong Kong International Airport and they then travelled together in a taxi to Yau Tong, where the applicant’s parents lived. 

7.  At 12:35 hours, they boarded a second taxi (“the taxi”) which was driven by PW1.  The applicant sat in the front passenger seat next to the driver, whilst the deceased sat behind the applicant on the rear passenger seat.  They gave him different instructions on their destination, including Tsing Ma Bridge, the airport, “iclub” Fortress Hill Hotel and finally Lok Ma Chau, which they eventually confirmed to be their destination.  They made a stop at a public toilet near Ngau Tau Kok, after which both the deceased and the applicant sat in the rear passenger seat.  In the course of driving, through the Tate’s Cairn Tunnel, PW1 heard a scream from the deceased and sounds of a struggle.  It was the prosecution case that whilst the taxi was travelling through the tunnel the applicant strangled his wife with a belt, which became Exhibit 2, and when he did so he had the intention to kill her or cause her grievous bodily harm. 

8.  When PW1 later heard the applicant say things suggestive of wanting to commit suicide, he stopped the taxi outside a Circle K convenience store near Sheung Shui MTR station and reported to two police officers, PW2 and PW3.

9.  PW2 approached the taxi and observed the deceased was lying prone on the applicant’s lap with the applicant’s left hand on the deceased’s back between her shoulder blades.  The applicant looked nervous, was looking forward dully, taking deep breaths with his lips tightly closed and his body was shaking.  PW2 noticed that there was a dark-coloured strap around the applicant’s neck and when PW2 spoke to him the applicant tried to strangle himself with the strap and bit his tongue.  PW2 thought the applicant was trying to kill himself.  PW2 then struggled with the applicant and finally, with the assistance of his colleague and a bystander, managed to remove him from the taxi.  At no stage did the applicant try to escape and nor did he say anything to PW2. 

10.  PW2 then saw the deceased and noticed she was limp, her face was pale and there were strangulation marks on her neck.  She appeared to PW2 to be in a coma.

11.  The deceased and the applicant were separately taken by ambulance to North District Hospital where they were admitted.  On 28 October 2015, after five days in a coma, the deceased’s condition rapidly deteriorated and at 4 pm that day she was certified brain dead.  

B.2    The evidence of the taxi driver and the transcript of the taxi’s car camera recording

12.  The evidence of what transpired in the course of the journey in PW1’s taxi came from PW1 and a recording from a car camera inside the taxi which recorded both video and audio.  Thus, there was a recording of all the sounds within the taxi during the journey.  A transcript was made of this recording with the voices on the transcript being referred to only by gender as belonging to a male or female but the identities of the voices at relevant times were the subject of admitted facts.[1]

13.  The car camera first records the applicant’s instruction to PW1 to take him and his wife to Tsing Ma Bridge which he then changed to the airport.  The deceased confirmed the airport as their destination but she then changed it to the iclub Hotel.[2] She repeated this and in response to a query from PW1 she confirmed it.  The applicant then interrupted and changed the destination to Man Kam To.  He engaged in conversation with PW1 and confirmed they wanted to cross the border.  The deceased then said to the applicant:

“Where are you taking me to?”[3]

14.  Later the deceased, in an exchange with the applicant, insisted that they go to the iclub Hotel and because PW1 was not familiar with it he got her to write it down for him on a piece of newspaper.

15.  There then takes place a conversation between the applicant and the deceased in the course of which the deceased said:

“Who got to catch us?”[4]

and then a bit later:

“Doomed, what should I do? How about going to Shenzhen”.[5]

After the applicant instructed the taxi driver to go to Lok Ma Chau the deceased said:

“I am not afraid of death!”[6]

followed by:

“I have no money and have no choice.”[7]

16.  The applicant then asked PW1 to stop at a toilet.  PW1 took them to a public toilet near Ngau Tau Kok which both the applicant and the deceased used.  After re-boarding the taxi the applicant sat behind PW1 and the deceased sat on the passenger or near side of the rear seat.  They restarted their journey to Lok Ma Chau and this took them through the Tate’s Cairn Tunnel.  Before reaching the tunnel PW1 did not notice anything unusual in respect of his passengers.  He was aware of conversation taking place but could not understand it as it was being spoken in a dialect with which he was not familiar.

17.  A short while after entering the tunnel PW1 heard the deceased scream.  He looked in the rear view mirror and saw the hand or arm of the applicant around the shoulder of the deceased, near her neck on the left hand side of her and he saw the applicant push the deceased down onto his lap.  PW1 said he heard some sounds of struggle and it seemed to him that someone was kicking against the front seat.  This lasted for only a few seconds and then there was no more sound.  The transcript of the car camera contains only the following record of what occurred:

“222.		[The screen shows the taxi going through the tunnel.]
223.	Female	Uh! Yi… uh … uh… ah… ah!
224.	Male	What is up? What is up?
225.	Male	Oo… oo… oo… oo… uh… oo… she gotta leave me!
226.		[Afterwards, neither the male nor the female makes a sound.]”[8]

The prosecution suggested that what can be heard at counter 225 is the applicant strangling the deceased. 

18.  PW1 said that as they were leaving the tunnel he heard a metal clanking sound which the transcript records at counter 230. Similar sounds were subsequently heard by PW1 and they are recorded at counter 247 of the transcript.  When he first heard this sound he turned around and saw a nylon belt with “two loops at the two ends which would produce some sound of metal.”[9] This was like Exhibit 2 which is a belt that was seized from the taxi and which bore bloodstains and DNA of the applicant and the DNA of the deceased and which the prosecution alleged had been used by the applicant to strangle the deceased.

19.  At the exit of the tunnel PW1 enquired if everything was okay.  This was followed by the applicant talking to himself about wanting to jump from the Tsing Ma Bridge with the deceased.  The transcript record is as follows:

“227.		[The screen shows that the taxi has reached the exit of the tunnel.]
228.	Male	Alright? Alright?
229.	Male	Uh… uh! Uh!
230.		[Metal clanking sound. The taxi continues to go forward.]
231.	Male	Yes! Uh! Uh! Ouch… Ai… Em, em, coughing… Em! (It) is destined to die after a whole life of hard work!
232.	Male	[Indistinct] Ah! …uh! Jump, let’s jump from that bridge together, both of (us), uh! Go, both of (us) go to Tsing Ma Bridge together (and) jump, (you) can buy me what kind of drink! The best!
233.	Male	What? What?
234.	Male	Ha(?)
235.	Male	What?
236.	Male	I have actually bought this for myself, for me, she has prepared to be together with me!
237.	Male	For you people!
238.	Male	Could you do me a favour?
239.	Male	Ha(?)
240.	Male	Could you do me a favour? Buy one for me, help me that, help me to buy that, er, drive me to Tsing Ma Bridge! Just jump down, [indistinct].
241.		[The screen shows that the taxi continues to go forward and the traffic flow is smooth.]
242.	Male	Uh… uh… ah… ah… ah… ah… em!
243.		[A male is heard to be panting continuously.]
244.		[The screen shows a smooth traffic flow.]
255.	Male	Ouch… ouch… uh!
246.		[A male is heard to be panting continuously.]
247.		[The screen shows that the taxi is travelling on a highway and the traffic flow is smooth. There are metal clanking sounds.]”[10]

20.  The applicant then asked PW1 to find a place where he can buy a drink and said there is no longer any need to go to Lok Ma Chau.  He then directed PW1 as follows:

“259.	Male	Drive (us) to Tsing Ma Bridge! W-we gotta be together, g-gotta be to, I want to be together! Nothing! No matter where you take (us) to, we, we gotta be together, gotta die together! Uh!
260.	Male	Are you in (any) trouble?
261.	Male	How about driving (us) to a relatively … a place (that) is more, more s-suitable for me to get rid of (the trouble), alright?
262.	Male	Ha(!)
263.	Male	Find a place that is more suitable for me to get rid of (the trouble), no need to cross the border!
264.	Male	Ai, I am given a tough job!
265.	Male	You are given a tough job, then you, then you just drive (us) to the Immigration Department!
266.	Male	Ha(!)
267.	Male	No need to drive (us) to the airport.
268.	Male	Airport!
269.	Male	Uh, (I’m) telling you to drive (us) to, drive (us) to a place (where) I can solve (the matter) myself, alright?
270.	Male	I see! (But) I do not know where (such place) is(.)
271.	Male	You can just find a quiet place for me, (and) say that she can I solve (the matter) ourselves! This is enough! Alright?
272.	Male	Let me s-see wh-wh-where (you) can get off!
273.	Male	Tell (me) where (we) can get off(?) Let (me) tell you, do not just say okay! Then, you drive (us) over to [Wah Lam (transliteration) Road]!
274.	Male	I see!
275.	Male	Then, we will jump into the sea, want or not want(?)
276	Male	Who want or not [indistinct] yours(.)”[11]

21.  When, at counter 232, the applicant asked PW1 to buy something to drink, PW1 understood him to mean something poisonous by which he could kill himself.  Then, when he heard the applicant say he would like to go to Tsing Ma Bridge he thought he should look for help.   He went to Sheung Shui MTR where he stopped his vehicle and sought assistance from police officers.  Whilst PW1 was talking to the police he saw the applicant trying to strangle himself with the belt.  When the police officers dragged the applicant out of the taxi, PW1 alerted them to the fact that the applicant was biting his tongue. 

B.3    The prosecution medical evidence

22.  The applicant was examined by PW6, Dr Choi Kwok Ching Alvin, in North District Hospital on 23 October 2015.  Dr Choi stated that his diagnosis was, “acute stress reaction severe, suicidal attempt.”[12] Dr Choi was the medical officer in charge of the medical ward where the applicant was placed after his admission from the Accident and Emergency Department of the North District Hospital.  He said that at the time of his admission the applicant was in a confused state and was not able to react or respond normally and so he was given sedation.  The laceration to the tongue, caused by the applicant biting it, was only superficial, which means it was not deep but shallow.  It was only to the top layer of the tongue and no blood was oozing from the wound.  He was treated with a course of antibiotics and discharged after 3 days, on 26 October 2015.  In cross-examination Dr Choi confirmed that the diagnosis of acute stress reaction was not his diagnosis but the diagnosis of a psychiatric colleague.  Dr Choi said that as a physician of internal medicine the applicant presented as a person with no abnormality.     

23.  PW10, Dr Tang Yuen Yee Dorothy, is a psychiatrist employed by the Hospital Authority based at Castle Peak Hospital but also performing duties as a visiting psychiatrist at Siu Lam Psychiatric Centre.  Dr Tang said in her evidence that the applicant was kept in Siu Lam Psychiatric Centre under her observation, between 28 October 2015 and March 2016. 

24.  Dr Tang said that initially the applicant “complained of headache with ‘confusion’ when he thought about the index offence, so details were not discussed in depth.”[13] However, the applicant became more forthcoming and in a clinical interview conducted on 9 November 2015 she was told by the applicant:

“… [he] reported that he harboured negative cognitions and suicidal ideation for a few months… he said both the deceased and [the applicant] wanted to commit suicide prior to the index offence. He volunteered that he wanted to jump from Tsing Ma Bridge, but his wife dare not. He said he bit his tongue on the taxi as a suicide attempt.”[14]

25.  The applicant told Dr Tang that he started to experience low mood in early 2014 when the deceased disclosed to him that she was in debt to the amount of $500,000 to a number of loan sharks, one of whom was called Hui.  When the applicant approached Hui he was told that the amount of the debt was in fact $2 million.  The applicant borrowed money from friends but because of the high interest he found it difficult to repay the debt.  They tried to avoid Hui but he sent threatening messages to them.  Then the deceased’s son asked for assistance in repaying a debt of $300,000 and so he and the deceased went to the Philippines in order to approach people he knew there for loans of money.  But when he was refused entry to that country, he returned to Hong Kong.  The deceased remained in the Phillipines for a week and on her return he picked her up from the airport.   

26.  In a subsequent examination in May 2017, the applicant gave a slightly different account of what happened after picking up the deceased from the airport.  He told Dr Tang:

“They then went back to Yau Tong by taxi. However, the deceased told [the applicant] that she did not want his parents to know about their financial difficulty. They then got on another taxi and left. He [the applicant] said he was worried that the taxi was being followed. He recalled that they got off to go to toilet at Kwun Tong on the way, and he told the taxi driver [PW1] to go to Lo Wu. He reported that he soon saw a whole patch of blackness, and felt that Mr Hui [the loan shark] captured his wife and pushed her into a well. He asked Mr Hui to stop after which he found himself in the hospital being restrained. He reported no recollection of what happened in the taxi, and did not remember mentioning Tsing Ma Bridge or history of tongue biting”[15].

27.  Dr Tang concluded her report with the following:

“12. Opinion and recommendation:

LI is impressed to suffer from methamphetamine intoxication, and possibly adjustment problem precipitated by the psychosocial stressor of debt; at the time of the index offence. He reported that he voluntarily took methamphetamine 2 days prior to the index offence, and the urine toxicology report on 24^th October 2015 revealed positive finding of the drug. He stated that there was poor sleep after using methamphetamine, and he expressed suspiciousness and appeared worrisome towards the creditor Mr Hui and his 2 sons, but the paranoid idea was not impressed to be up to delusional level. No definitive psychotic symptom such as hallucination, passivity or thought alienation was reported. During the stay at SLPC from 30^th October 2015 to 2^nd April 2016, he denied any abnormal perception or belief. As evidenced by the above, he is not impressed to suffer from stimulant-induced psychosis, but likely methamphetamine intoxication at the time of the index offence which does not constitute an abnormality of mind, and the issue of diminished responsibility is then irrelevant.”[16]

28.  Dr Tang explained that the applicant was not drug dependent as he did not experience any craving for methamphetamine.  Methamphetamine is commonly known as “Ice” and that is how we shall refer to it in this judgment.  She did not find him to be suffering from psychosis as he did not experience delusions, hallucinations or thought disorder whilst in a state of clear consciousness and that is why she did not prescribe for him any anti-psychotic medication.  The other reason why she did not diagnose psychosis was because his symptoms were of such short duration.  The symptoms of a person suffering from psychosis, she testified, “would persist for more than one week, usually at least up to one month”[17].  It is unlikely, she said, that the person would recover within days and without the benefit of medication it would take weeks for a person to recover from the least serious form of psychosis.

29.  PW11, Dr Lui Sing Heung, is also a psychiatrist employed by the Hospital Authority, based at Castle Peak Hospital and performing visiting psychiatrist duties at Siu Lam Psychiatric Centre.  He examined the applicant on three occasions and the applicant gave him a similar account of what happened in the taxi when it entered the tunnel as he gave to Dr Tang.  In his report, Dr Lui recorded the applicant’s account as follows:

“He tells that some time into the journey he suddenly saw darkness ‘like a sheet of black’, and at the same time had this strong feeling that his wife’s creditors were there to grab her to “push her into a well”, and he was like struggling. He claims he has no recall whatsoever about the belt in question, or of having anything to do with it to his wife or to himself. He says he could not remember having said ‘Tsing Ma Bridge’ or ‘to jump’ or police officers making enquiry afterwards with him still in the taxi.”[18]

30.  Dr Lui also said that when he examined the applicant on 28 October, “psychiatric assessment elicited no signs of psychosis”[19]. He then concluded his report by offering the following opinion:

“12. Opinion: Li was in a state of methamphetamine intoxication at the time of the alleged offence. He was confused and the sudden fear and flash of paranoia were compatible. Drug induced psychosis was unlikely for want of distinct and ongoing symptoms. Moreover, once induced such psychosis would take on a life its own and run its course, typically (if without treatment) several weeks to up to six months.

13. Abnormality of mind is a legal concept not a medical one, and if voluntary intoxication does not constitute abnormality of mind then there is no question of diminished responsibility.”[20]

C.     The defence case

31.  The applicant elected not to give evidence himself, but called two defence expert witnesses, Dr Choi Wing Kit (DW1) and Professor Tang Wai Kwong (DW2) to establish his case of diminished responsibility.  In brief, DW1, having interviewed the applicant, expressed the opinion that the applicant was suffering from an abnormality of mind at the time he killed the deceased.  The abnormality of mind was Stimulant Psychosis, caused by the applicant’s consumption of Ice.  Professor Tang, who did not interview the applicant, was called to provide expert evidence concerning the effect of Ice on the applicant at the time of killing.

32.  The applicant gave Dr Choi a similar account as to what happened in the taxi as he had provided to Dr Tang and Dr Lui.  Dr Choi recorded it as follows:

“LI said he finished using toilet faster than the deceased. While he was waiting, he had a strong feeling that someone was also waiting for the deceased and she might be in danger. The taxi continued the journey after they finished using toilet. LI changed his seat and sat at the back with the deceased as well. He told her ‘don’t sit alone and too far away from me’. After a while, all of sudden, LI saw the things became dark in front of him. He then saw the creditor HUI pushing the deceased into a well. He said he was shock at that time and he just wanted to stop HUI from killing his wife. He remembered that he had forcefully grabbed at HUI and had struggled with him. He apparently saw HUI also threw the deceased down to the well, and after a while, he couldn’t find her anymore. At that time, he thought that his wife has killed. He felt so desperate and didn’t want to live alone anymore. He then bit his own tongue trying to kill himself as well. When he became more in contact with the environment, he found that he was already in a hospital.”[21]

33.  In his report on the applicant, Dr Choi expressed the following opinion:

“It is my opinion that, at the time of killing, the subject LI, Cheung-Choi was suffering active and profound symptoms of Stimulant Psychosis; Mental and behavioural disorders due to use of other stimulants, including caffeine, psychotic disorder, schizophrenia like (ICD-10 F15.50). (Appendix 1). The symptoms he experienced at the time of killing included: auditory and visual hallucinations, delusion of persecution, and delusion of reference associated with prominent signs of agitation. These psychiatric symptoms represent an abnormality of mind arising from a medical condition, and this could form the ground for diminished responsibility, one of the partial defences that reduce murder to manslaughter under Cap 339 Homicide Ordinance of Hong Kong.

…

In the present case, LI had a long history of recreational use of ICE (methamphetamine). He had experienced very serious psychosocial stress that precipitating prominent adjustment problems after getting know about the deceased’s financial difficulties, and he also started to use ICE excessively as a way of stress-coping since about two to three months prior to the killing. His mood was predominantly depressed, anxious and irritable within these few months and he was also increasingly paranoid. Since around July or August 2015, he started to feel being followed and persecuted, and he also heard non-existing voices threatening him from time to time. It appears to me that he was actually extremely psychotic, agitated, disorganized and confused at the material time of the alleged offence.”[22]

34.  Dr Choi provided a second report in which he commented on the reports of Dr Tang and Dr Lui prior to reaffirming his diagnosis of Ice-induced stimulant psychosis.

35.  Professor Tang had to rely on what was contained in the reports of Dr Tang, Dr Lui and Dr Choi.  He said he was unable to form an opinion on whether the applicant had psychotic symptoms prior to the alleged murder of the deceased and whether he had them at the time of the murder.  He referred to a particular study which suggested that there are minimal subjective effects from Ice after 12 hours from the time of its consumption, and concluded:

“Hence Ice intoxication cannot account for psychiatric symptoms that is (sic) presence (sic) 2 to 3 days after the last use of Ice.”[23]

36.  He also said that the psychosis resolves shortly after cessation of use and most patients improve within hours to a week of abstinence.  This made it possible, he said, that the applicant had sufficiently recovered from his Ice psychosis that it could not be detected by Dr Tang.

37.  Thus, the cross-examination of the prosecution psychiatrists by Mr Steve Chui, counsel for the applicant at trial, proceeded on the basis that the applicant was in a state of clear consciousness when he and the deceased boarded PW1’s taxi but he was already showing symptoms of visual and auditory hallucinations and when the taxi entered Tate’s Cairn Tunnel he experienced a psychotic episode in the course of which he strangled the deceased.

D.     The judge’s discussions with counsel 

38.  Because the applicant did not testify in his defence the judge raised with counsel how she should direct the jury in respect of the applicant’s statements to the psychiatrists as to his state of mind at the time of the killing.  The judge first raised this issue after mid-day on 4 July 2018, saying:

“COURT: Yes, so I need counsel to give their mind to this. The defendant has chosen not to give evidence. So I will be telling the jury in my instruction that what he tells the doctor is hearsay and it has not been -- it is not evidence of the truth but it is only given in order for them to understand how the doctor arrived at his opinion. All right? So it is -- I’d like both counsel to consider that.”

39.  The next day, Mr Chui, returned to this issue and the following exchange took place with the judge:

“MR CHUI: Sorry, sorry. My Lady, yesterday you raised this hearsay evidence.

COURT: The? I’m sorry?

MR CHUI: I do not see it here but can you at least inform us a little bit more on how you’re going to direct the jury?

COURT: On?

MS CREBBIN: On the hearsay evidence.

COURT: The hearsay evidence. Well, the hearsay is because I will direct the jury that the defendant has chosen not to give evidence. Although he had a right to choose not to give evidence and nothing can be construed against him, however, because he is running the defence of diminished responsibility, it is for the defence to prove that he was on the balance of probabilities suffering from diminished responsibility.

What was told to the psychiatrist was hearsay because he has not given evidence in the witness-box as to those assertions, but it has been allowed to be recited to them because that was the basis upon which each psychiatrist formed their opinion. So that is basically what I intend probably -- I most probably to say.

MR CHUI: Yes, I’m most grateful, my Lady.

COURT: Yes, any comment on that?

MR CHUI: And -- no.

COURT:  All right.”

40.  This was how this issue was left and, as we shall see later in this judgment, this was how the judge directed the jury.  Clearly, Mr Chui made no attempt to dissuade the judge from the correctness of her proposed directions. 

41.  At 12:44 pm on 10 July 2018 an exchange between the judge and counsel took place on the issue of suicide pact.  This exchange, in fact, occurred during the judge’s summing-up and was prompted by comments of the judge that are set out at [66] of this judgment.  The exchange proceeded as follows:

“COURT: Yes, anything?

MR CHUI: No, my Lady.

COURT: Yes, Ms Crebbin.

MS CREBBIN: My Lady, there is only and it may be I misunderstood. I was ticking everything off. There is just one thing I wanted to raise. You talked about the suggestion, obviously hearsay suggestion to the psychiatrist of wanting to commit suicide together or possibly both agreeing, and you went into the question of intent. My Lady, the only reason I raise it is I was a little concerned how I interpreted what you were saying...

COURT: Yes, yes.

MS CREBBIN: ...because of course if there is a common intent, then it’s reduced to manslaughter if one person dies in a suicide pact and the other doesn’t. That’s the only reason I’m raising it. I appreciate that I don’t think there is any evidence to support that this was a common pact, but it was just I only raised the matter because I’m not sure quite where your Lady was going with it.

COURT: You see, what I was referring to is the fact that there may have been an intent to commit suicide together, but when the defendant entered the taxi and said, ‘Tsing Ma Bridge,’ you can see the wife saying, ‘No, I want to go to the hotel.’ So she did not want to kill herself.

MS CREBBIN: My Lady, yes, that’s why I raised the issue of her struggling as well in the taxi, the same sort of thing.

COURT: Yes, so...

MS CREBBIN: I just wanted to confirm that thing.

COURT: So if that happens, if one party thinks, ‘Oh, you know, we made an agreement. This, the other one has withdrawn but I’ll kill her first, then I’ll kill myself,’ that is still murder.

MS CREBBIN: My Lady, that was my intention. I just...

COURT: Yes.

MS CREBBIN: I just wanted to clarify...

COURT: No.

MS CREBBIN: ...for my own peace of mind, my Lady, and...

COURT: I appreciate that because I...

MS CREBBIN: ...I’m happy with that. Thank you.

COURT: ...it has to come out in a way that the jury appreciates and understands what I mean. I will clarify that, actually...

MS CREBBIN: Yes, now, my Lady, I’m now satisfied that I’m with you. Thank you very much. Thank you.

COURT: ...because it is good -- a good point to take. I didn’t mean to mislead them to think that both parties agreed and ‑‑ yes.

MS CREBBIN: So I presume you didn’t. I was just -- I may have missed the way you phrased it properly. That’s why I just wanted to raised the issue. I’m sorry, my Lady. Thank you.

COURT: Yes, yes, because there is no evidence that both parties agreed, you see.

MS CREBBIN: Well, absolutely. From all the evidence, it indicates the contrary. I agree. Yes.

COURT: Yes, but I -- yes. All right.

MS CREBBIN: Thank you.

COURT: Yes. Anything else?

MR CHUI:  No, my Lady.”

42.  This resulted in the judge making further comments towards the end of her summing-up which are quoted at [67] of this judgment and which reflect what the judge said to Ms Crebbin.

E.     The defence counsel’s closing address

43.  In his closing address Mr Chui initially suggested to the jury that they could not be satisfied that the applicant possessed the mens rea for murder at the time he strangled the deceased because it was not disputed that at the time he was under the influence of Ice.  If the jury could not be sure the applicant intended to kill or cause grievous bodily harm to the deceased then the jury must acquit him.  However, as this was contrary to the law relating to voluntary intoxication, objection was taken to it and Mr Chui had to correct this part of his address.  The thrust of his address then became solely whether the defence of diminished responsibility had been proven on the balance of probabilities.  In support of this defence Mr Chui asserted that the applicant was suffering from a drug-induced psychosis caused by his consumption of Ice.

44.  In addressing the state of mind of the applicant, Mr Chui emphasized the lack of motive and that there was no evidence to suggest that this was a premediated killing.  Given that it was agreed that the applicant was under the influence of Ice at the time he strangled the deceased, Mr Chui asked the jury to consider whether the applicant actually knew that he was strangling his wife with a belt at the time.  Even if he did so realise, there was still the question, Mr Chui submitted, of whether he had the requisite intent for murder as he was under the influence of Ice.

45.  In determining whether the mental state of the applicant was that he was only under the influence of drugs, as opposed to being under a drug-induced psychosis, Mr Chui suggested the jury should have regard to what was said by the applicant in the taxi as recorded by the car camera.  In this respect he suggested that the transcript of the audio record of the car camera showed the applicant still talking about dying together with the deceased after he had already strangled her which showed that he was unaware of what he had done.

46.  Mr Chui then turned to the evidence of the four psychiatrists and argued that the diagnosis of Dr Choi of drug-induced psychosis was to be preferred to that of Dr Tang and Dr Lui of Ice intoxication.      

F.     The Amended Perfected Grounds of Appeal

47.  In his Amended Perfected Grounds of Appeal Mr Bruce relies on two grounds of appeal. His first ground of appeal is that the judge erred in repeatedly directing the jury that there was no evidence to support the statutory defence of suicide pact.  This defence is contained in section 5 of the Homicide Ordnance, Cap 339 which provides as follows:

“5. Suicide pacts

(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between him and another to kill the other or be a party to the other being killed by a third person.

(2) Where it is shown that a person charged with the murder of another killed the other or was a party to his being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between him and the other.

(3)   For the purpose of this section, suicide pact (自殺協定) means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.”

48.  In support of this ground of appeal Mr Bruce submits that the evidential foundation for the defence could be found in the evidence of the taxi driver (PW1) and the transcript of the taxi’s car camera recording.  This evidence, he argued, allowed of an inference that there was a common agreement between the applicant and the deceased having for its object the death of them both.  This existed at least in respect of a proposal to kill themselves at the Tsing Ma Bridge and once an inference to this effect was available then the defence had to be left to the jury for them to determine whether that common agreement continued.  As to what would constitute an evidential foundation for leaving this defence to the jury, he relied on the statements of legal principle that can be found in HKSAR v Coady (No 2)[24] and Ho Hoi Shing v HKSAR[25]and emphasised that it only had to meet the standard of proof relevant for that defence.

49.  The applicant’s second ground of appeal asserts that the judge erred in directing the jury that critical aspects of the medical evidence called by both the prosecution and defence was hearsay and that no reliance could be placed upon it.  Alternatively, this ground complains that the judge’s directions may have resulted in a verdict which was unsafe or unsatisfactory because:

(i)     the statements in the medical reports were in law admissible or capable of being admissible;

(ii)     there had been no challenge by the prosecutor to the underlying factual basis of the medical evidence; and

(iii)    the Admitted Facts were the basis of the reception into evidence of the medical reports.  

The effect of the judge’s directions, this ground asserts, was to withdraw, or diminish, these reports in the eyes of the jury.

50.  Mr Bruce also submits that the jury may have been confused by the directions of the judge given that medical evidence adduced by both the prosecution and the defence relied on statements made by the applicant to the reporting doctors and given that the prosecutor made no point in her closing speech on the fact that there was no evidence from the applicant. 

51.  In support of this ground, Mr Bruce traverses authorities from Australia and England, and argues that the applicant’s statements to the psychiatrists were, in law, admissible, at the very least as evidence of the applicant’s state of mind and his intention at the time he killed the deceased.  He relies on a ruling of a single judge of the South Australian Supreme Court in R v Pangallo[26] of which he said:

“20 It is submitted that the better view is that enunciated by Court in R v Pangallo (above). The effect of this is that if what is recounted in the medical report and which is attributed to the accused is narrative or the recounting of a series of events or a history then it is inadmissible hearsay. However, where what the accused recounts is medical symptoms or in this case his delusions and the like then such a history is admissible for reasons articulated in R v Pangallo. The problem may arise in circumstances where part of what the accused articulates to the psychiatrist is a history of medically relevant events such as a history of alcohol or drug abuse which forms the basis of a diagnosis of a medical condition. That, it is submitted, is probably best viewed as a mixture of what is prohibited and is hearsay and what is permitted as original evidence. In short, the problem may not be directly addressed in the authorities.”[27]

52.  Before us, Mr Bruce argued that everything the applicant said to the psychiatrists was admissible for all purposes, even hearsay purposes.

53.  A further argument deployed by Mr Bruce is that the statements to the psychiatrists should all be regarded as mixed statements, containing as they all did certain admissions against interest.  

G.     The respondent’s submissions

54.  Mr Ned Lai, and with him Ms Karen Ng, on behalf of the respondent, submits in respect of the first ground of appeal that the requisite evidential threshold that would necessitate the issue of suicide pact being left to the jury was not met in the present case.  He argues that the evidence required to substantiate the essential components relating to that issue was insufficient, if not completely lacking.

55.  In respect of the second ground of appeal, Mr Lai asserts that the judge was correct to characterise the applicant’s statements to the psychiatrist as hearsay and to limit their admissibility to explaining the basis of the psychiatrists’ opinions and diagnosis.  His position is that the common law of England and Australia regards statements made by an accused to a medical practitioner in respect of the circumstances surrounding an offence as hearsay which should be supported by the accused giving evidence.  Where the accused does not give evidence then the statements he made to the medical practitioner are not evidence of the truth of their contents but only evidence of the foundation of the medical practitioner’s diagnosis.  The extent to which there is no other evidence to establish that factual foundation will affect the weight to be given to the diagnosis.

H.     Discussion

H.1    The issues in the trial

56.  Before discussing the grounds of appeal it is helpful to identify what were the key issues in this trial.  The first key issue was who killed the deceased and how.  Although no admissions were made by the applicant it was not seriously disputed that it was the applicant who killed her and that it was by strangling her with the belt, Exhibit 2, when the taxi was driving through the Tate’s Cairn Tunnel.

57.  The second key issue was whether the jury were satisfied that the applicant strangled the deceased with the requisite mens rea for murder.  This became an issue because it was accepted that at the time of the killing the applicant still had Ice in his body and the jury had to be satisfied that the presence of it did not affect his intent. 

58.  If satisfied that the mens rea element of the offence had been proven then the third and final key issue for the jury was whether the defence of diminished responsibility was available to the applicant.

59.  A very important contextual element in the trial was that the applicant did not testify.  This has relevance to both grounds of appeal in that the consequence of not testifying meant that there was no in-court evidence from the accused; only his out-of-court statements to the psychiatrists.  Those out-of-court statements were relevant to the defence of diminished responsibility but provided very limited support for a defence of suicide pact and generally were completely contrary to it.  The only occasion the applicant mentioned a suicide pact to the psychiatrists was in an interview with Dr Tang as set out at [24] of this judgment.

60.  The vast majority of the applicant’s out-of-court statements advanced an explanation of the applicant experiencing an Ice-induced episode in which he became seized of a paranoid belief that the deceased was being attacked by one of her creditors by being pushed into a well.  He claimed to have no recollection beyond this and no memory of strangling her.  The medical dispute in respect of the defence of diminished responsibility was whether this drug-induced episode was a manifestation of an abnormality of mind.  If it was merely Ice intoxication, as asserted by the prosecution’s experts, then it was not an abnormality of mind; if it was a drug-induced psychotic episode, as asserted by Dr Choi for the defence, then it was an abnormality of mind.

61.  The final important contextual element for both grounds of appeal is the fact that the judge raised with counsel the issues of whether to leave suicide pact as an alternative basis for a verdict of manslaughter and the issue of how she should direct the jury on the evidential use they could make of the applicant’s statements to the psychiatrists.  Mr Chui at no stage made any attempt to dissuade the judge from her proposed course of action in respect of both issues.

H.2    The first ground of appeal

62.  Clearly, suicide pact as a basis for a manslaughter verdict was not part of the defence case[28].  It could not be as it required a common agreement between the applicant and the deceased and would have been entirely contrary to the defence of diminished responsibility.  However, that does not prevent an accused’s counsel from asking the trial judge to leave this alternative verdict to the jury.  It is perfectly proper for a defence counsel to say an alternative verdict arises from the evidence which is not part of his case and which, because it may be contrary to his case, he cannot invite the jury to return but which the judge is nevertheless required to place before the jury with appropriate directions in respect of it. 

63.  For such a situation to arise there must be evidence before the jury to justify the judge adopting this course.  In this respect the comments of Ma CJ in HKSAR v Chau Yui Ming, in giving a judgment with which other members of the Court of Final Appeal agreed, are particularly apposite.  He said:

“31. In my view, some care needs to be exercised when defining the obligation to direct alternative verdicts. It is unhelpful, not to say confusing, for a Judge to have to direct a jury to alternative options based on vague expressions such as ‘possible alternatives’, ‘possible scenarios’, ‘alternative defence scenarios’ or ‘secondary defence scenarios’. This was the type of expression used by McWalters JA in the passages set out above.²⁵ Apart from being imprecise and uncertain, it can give rise to considerable practical difficulties in application because it can lead to a real potential for confusion on the part of the jury. Where, for instance, the defence's evidence and approach to the evidence is contrary to such alternative or possible or secondary factual scenarios, it would be confusing and wrong for a judge to have to direct a jury on those alternative factual scenarios. Were it otherwise, this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial. …

32. The answer to the question in what circumstances it would be incumbent on a Judge to direct a jury as to the alternative options open to it is, I believe, to ask further whether there is an obvious alternative verdict which is supported by the evidence of that alternative. …

…

34. What is the position when the alternative scenario relied on is contrary to the way the defence has conducted or presented its case on the facts? In the passage from Ho Hoi Shing v HKSAR quoted above,Chan PJ referred to a Judge not being absolved of the duty to direct on an alternative verdict ‘even if a particular alternative is not raised by the parties or is inconsistent with the defence run by counsel for the accused’. However, it is relevant to read the extract from the judgment of Lord Clyde in Alexander Von Starck v R which follows immediately after. This passage refers to conclusions open to the jury ‘on the evidence which has been presented in the trial whether or not they have all been canvassed by either of the parties in their submissions’. (Emphasis added.)

35. The way that the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict. If a factual alternative does not arise in the way the defence has dealt with the facts and presented the case on the evidence (as opposed to the legal approach) this will in most cases be decisive. …”[29]

64.  Ma CJ then referred to a decision of the English Court of Appeal in R v Fairbanks where Mustill LJ in giving the judgment of the court said:

“… the judge is not always obliged to leave all the alternative verdicts theoretically comprised in the charge of the offence, but need not (and indeed should not) do so unless the alternatives really arise on the issues as presented at the trial.

These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.”[30]

Of this passage Ma CJ said:

“36. The quoted passage assists in determining whether an obvious alternative verdict ought to be placed before the jury in emphasising the need to look at the way the case on the facts has been run. …

37. The Trial Judge has a discretion in deciding on the most appropriate course to take when faced with the possibility of an alternative verdict. Orders under s.23 of the Criminal Procedure Ordinance involve a judicial discretion. If such a situation arises or may reasonably arise, it will be good practice for the Judge to elicit the views of the parties. Such views may not necessarily be decisive but they are certainly relevant. Counsel of course have the duty to assist the court in putting forward any relevant considerations, particularly those relating to a fair trial, for the Judge to consider.”[31]

65.  In the present case the suicide pact basis for a manslaughter verdict was not run as a defence and, as we have said, was contrary to the defence of diminished responsibility that was relied on in order to reduce the offence of murder to manslaughter.  That clearly affected the ability of the applicant to discharge the reverse legal burden that section 5(2) of the Homicide Ordinance imposes on him.  He could not testify in support of a suicide pact defence so he had to rely on finding the evidential basis for the defence from other sources.  However, these forensic difficulties are, ultimately, of no relevance as the only issue is whether it was in the interests of justice that suicide pact be left to the jury because there was evidence which made suicide pact an obvious alternative verdict.  The fact that the applicant’s own counsel did not ask for this to be done is a strong indication that the evidence was in fact lacking.

66.  The judge’s view on the lack of evidence to support a common intent is set out at [41] of this judgment.  This exchange with counsel was prompted by the judge’s comments earlier in her summing-up when she said:

“And it seems, appears from the conversation with the taxi driver with the defendant, the defendant seems to have hinted it was his intention to die and that he wanted to die together. So, I do not know if you think this way, but if it was originally their intention to die together, commit suicide together, and they wanted to go to Tsing Ma Bridge, in fact to do that, but the deceased may have changed her mind because she wanted to go to the hotel.

Then the deceased was killed and the defendant wanted to kill himself, so you can tell from his conversation with the taxi driver, he wanted to buy something to drink so he can go. And then his attempt to strangle himself. So even if you think, members of the jury, that it was originally the intention that both of them decided to kill themselves, and that it came about that the defendant thought that he’d kill the deceased first and then kill himself, well there is the intention there.

Because the act of killing another person with the full intent to kill or cause serious bodily harm to that other person and the killing was unlawful and the defendant did the act or acts which caused the death, that is still -- if all of that is proved to your satisfaction so that you are sure, it is still murder.” [32]

67.  Towards the end of her summing-up and after the exchange with counsel quoted at [41], the judge directed the jury as follows:

“Now, earlier on, I had asked you to consider what was said in the taxi, and that the defendant seems to be saying that he thought that he and the deceased should die together. Now there is no evidence that the deceased agreed with him to commit suicide together. This was what he appeared to be saying in the taxi.

You remember in the taxi, the defendant upon entering the taxi, asked the taxi driver to go to Tsing Ma. The deceased immediately pointed out she wanted to go to the hotel in North Point, so there is no question that the deceased -- there is no evidence here that the deceased had agreed to commit suicide, together with the defendant.

So if it is in the thought of the defendant -- what I’m trying to say to you and make it clear to you is this, that if the defendant thought that, ‘We should die together. I’ll kill her first then I’ll kill myself’, that does not make it any less of a crime than murder, because he did intend to kill her. Although, at the end he wanted to kill himself after that. So that does not make it -- detract from what he did to the deceased.

It does not matter what he intended to do with himself, whether he wanted to kill himself by strangling himself or take poison, it did not matter. What mattered was what was in his mind when -- at the time when the offence was committed? And it is not important what the motive was either. The prosecution does not have to prove motive or premeditation. It could be a spur of the moment intention to kill or cause the deceased serious bodily harm, and that is sufficient. All right?” [33]

68.  Thus, although the judge mentioned the possibility of the applicant wanting to kill the deceased and himself, she limited the relevance of this possibility to only the existence of a motive and to proof of intent to kill or cause grievous bodily harm.  She repeated this theme when dealing with the evidence of Dr Tang as set out in [24] of this judgment.  In respect of what the applicant had told Dr Tang the judge directed the jury as follows:

“ And so here, although it’s hearsay, the fact that he said both his wife and he wanted to commit suicide, prior to the index offence, you may find some support for it in the taxi video‑cam transcript. As I have pointed out to you earlier, he seemed to be saying that they wanted to die together. So that may, you may think, might support -- that might be some evidence, that was the motive or intention behind the events of that day.

He said he bit his tongue on the taxi as a suicide attempt. Now, that is backed up by evidence from the taxi driver, that he did bite his tongue and the tongue injury was actually found by the doctor in Lai Chi Kok -- I mean, North District Hospital. So that, there is evidence of that, that he tried to bite his tongue.”[34]

69.  We turn now to a consideration of the evidence, bearing in mind that section 5(3) of the Homicide Ordinance requires proof of “a common agreement between two or more persons having for its object the death of all of them”. 

70.  The main evidence of suicide pact came from the recording by the taxi’s car camera.  Although the driver formed the view that the applicant and, perhaps, also the deceased, wanted to commit suicide, he formed this view only from what he heard and observed but a lot of what he heard he did not understand because it was spoken in a dialect.  Thus, the real source of evidence of suicide pact came from the car camera recording and, to a lesser extent, the conduct of the applicant.  We say to a lesser extent because by the time the applicant came to overtly discuss killing himself, and trying to do so, he had already strangled the deceased.  Whether his attempt to kill himself was genuine or whether it was just due to his emotional state at having strangled the deceased were competing inferences open to the jury to draw.  Even if the jury found that he wanted to kill himself, that alone would not prove the existence of a suicide pact.  If there was some evidence of such a pact then the applicant’s attempt at suicide would support an inference that such a pact existed and that his killing of the deceased was pursuant to it.  But it does not, on its own, prove these matters.

71.  What the evidence must be is dictated by the terms of the section.  The evidence must allow of an inference that:

(i)  there was an agreement between the applicant and the deceased having for its object the death of both of them (section 5(3));

(ii)  the deceased was a willing participant in it;

(iii)  the killing of the deceased by the applicant was in pursuance of this common agreement (section 5(2)); and

(iv)  at the time he killed the deceased he, the applicant, had the settled intention of dying in pursuance of this common agreement (section 5(3)).

72.  One of the cases on which Mr Bruce relies is HKSAR v Coady (No 2) where Keith JA discusses the quantum of evidence that must exist in order for the defence of provocation to be left to the jury.  We note that at  page 587A of the report Keith JA quotes with approval a statement by Lord Taylor CJ in R v Cambridge[35] where he said at page 975D-F:

“But what sort of evidence gives rise to the duty? Clearly, it is not for the judge to conjure up a speculative possibility of a defence which is not relied on and is unrealistic.”

73.  In his oral submissions before us Mr Bruce acknowledged that, at best, the evidence was “thin” and “murky” but, nevertheless, submits that a common agreement can be inferred from the conversation in the taxi.  We do not agree.  Even those statements of the deceased that are quoted at [15] of this judgment do not evidence an intention by the deceased to commit suicide, let alone a common agreement between her and the applicant to do so.  The initial instruction to PW1 that he drive them to Tsing Ma Bridge may reflect the applicant’s state of mind but does not allow of an inference that the deceased shared his suicidal thoughts.  Likewise, the statements of the applicant after he had strangled the deceased evidence his intention to kill himself and a desire that he and the deceased die together, but not a common agreement to which the deceased was a willing party. 

74.  Having carefully read the transcript of the taxi’s car camera recording, it is clear to us that what statements there are from the deceased reveal a positive intention by her not to kill herself.  For example, she repeatedly asked to be driven to the iClub Hotel and actually wrote the name of it on a piece of newspaper when PW1 demonstrated his ignorance of it.  At another stage, the deceased enquired of the applicant “Where are you taking me to?”  This query, at counter 48, followed by the deceased insisting on the iClub Hotel, despite the applicant telling PW1 “Do not listen to her.”[36] clearly demonstrates the lack of an agreement between the deceased and the applicant.  There are other statements by her that also suggest she was not in a suicidal state of mind.

75.  To meet the threshold requirement, the evidence must go beyond establishing that the deceased was upset, emotional or even depressed.  It has to establish, to use the language of section 5(3), “a settled intention of dying” pursuant to a pact with another.  Anything less only undermines the protection, otherwise afforded by the reverse burden operation of the section, “for society from murder disguised as a suicide pact killing.”[37]

76.  As the second ground of appeal asserts that evidential use can be made of the hearsay statements of the applicant to the psychiatrist we shall consider whether the evidential threshold was reached if regard could be had to the statements of the applicant to Dr Tang that are quoted at [24].  In our view it does not.  That statement shows what the applicant wanted to do, not what the deceased wanted to do.  Of course, if regard could be had to what the applicant told the psychiatrists then this ground of appeal would have to fail for other than the one occasion quoted at [24], the explanations of the applicant were that he strangled the deceased whilst undergoing an Ice-induced psychotic episode.    

77.  We are, therefore, not persuaded that the conversation in the car meets the evidential threshold for leaving the partial defence of suicide pact to the jury.  Given the way the trial was run, the issues that were raised and the defences relied upon, suicide pact was never a realistic defence and the evidence relevant to it never raised it beyond the level of a speculative possibility.  The judge was right to conclude that there was insufficient evidence, if any at all, that the deceased had a settled intention of dying pursuant to which she was a willing party.  The first ground of appeal fails.  

H.3    The second ground of appeal      

78.  When directing the jury on the use they could make of the applicant’s statements to the psychiatrists the judge said:

“… But I must stress to you that this background is only information which is supplied to Dr Tang. It has not been proven in evidence. It is hearsay, because it is only given to her, but we have no evidence that this was truly his background. But this is given, because it gives the basis for Dr Tang’s opinion which you have to consider as part of the psychiatric evidence.

Now then the third paragraph, ‘History of Substance and Alcohol abuse’. Again, there is no evidence of that, because the defendant has not chosen to give evidence, so we do not have the evidence as to what his substance and alcohol use was. Again, this is material which is supplied to Dr Dorothy Tang, in order for her to make her assessment.

Then his psychiatric history, the first sentence, ‘Li was new to Mental Health Service, prior to the index offence’. Now, that is merely saying that he has no previous record with the Mental Health Services in Hong Kong. Now then the rest of the paragraph again, that he reported stable mood and low mood about the death etc, again that is hearsay. That is not evidence.

The last sentence, ‘He denied any abnormal perception or belief’. Now, that is what Ms Crebbin is saying, that there was no report of any abnormal perception or belief until 18 months later when he saw Dr Choy(?).

Now then, he reported about his taking of drugs etc, starting to take it one month ahead and couldn't sleep and last used was two days prior to the index offence. Again, that is hearsay because there is no evidence to back it up.”[38]

After setting out the evidence of Dr Tang the judge directed the jury:

“ So again, she gives the background, his history of substance abuse and one thing to note is that, as I said, it is all hearsay. There is no evidence to support it. But one thing of interest to note, and you may disagree with me, is that at paragraph 4, in the sentence, the fifth sentence from the bottom:

‘He said he felt he could avoid thinking about his stressors after taking methamphetamine, but denied hearing non-existing voice or any abnormal belief after using the drug’.

Now, you will notice that Dr Choy was told something quite different, that he heard voices, which is not from any existing person. So, this is another -- an example of why hearsay evidence is unreliable in the sense that the person has not given evidence in front of you, been subjected to cross-examination and for you to decide if the witness is telling you the truth, is reliable or accurate or inaccurate. So you may think therefore, that why was the defendant telling something different to Dr Choy, 18 months later? So that is for you, members of the jury.”[39]

79.  When dealing with Dr Lui’s evidence the judge referred to what the applicant told him as set out at [29] of this judgment and contrasted it with what he told Dr Tang and Dr Choi and then directed the jury in respect of all these accounts:

“ All this is hearsay, members of the jury, and because there is no evidence to prove that whether he saw or he had the feeling. This was only what he told the psychiatrist.”[40]

80.  Prior to discussing the evidence of the defence psychiatrists the judge gave the standard direction on the consequence of the applicant not having given evidence, saying:

“ On the other hand, it means there is no evidence from the defendant to undermine, contradict or explain the evidence put before you by the prosecution. However, you have to decide whether, on the prosecution’s evidence, you are sure of the defendant’s guilt on the count of murder.”[41]

81.  As an introduction to her discussion of the defence medical evidence she directed the jury as follows:

“… The evidence on behalf of the defence comes from two psychiatrists.

The two psychiatrists base their opinion on what they were told by the defendant. Now, what they were told by the defendant has not been repeated in evidence before you, and that is why I say it is hearsay. He has not given evidence, nor been cross‑examined on it, nor has he repeated what he told the psychiatrists on Oath.

So what was told to the doctors by the defendant has no firm evidential foundation. So similarly, with what he had told Dr Dorothy Tang and Dr Lui, again that has not been repeated on Oath, nor has he been cross-examined on it. So there is no firm foundation for that evidence.”[42]

82.  She repeated this direction shortly after summarising Dr Choi’s diagnosis by saying:

“ Now, all this, members of the jury, as I have said earlier as for the other reports, it is hearsay. There is no foundation, evidential foundation for what was told to Dr Choy. Except of course, the fact that he took methamphetamine. You may find some support for that in the fact that ‘Ice’, methamphetamine, was found in his urine when he was examined at North District Hospital.”[43]

83.  The position adopted by the judge is quite clear.  Essentially it was that everything said by the applicant was hearsay and, therefore, was not evidence.  She made no distinction of the kind relied on by Mr Bruce between a narrative of events and a statement as to his state of mind. 

84.  The directions given by the judge reflect the traditional common law approach to what we shall call “medical histories” provided by a person to a medical practitioner.  Perhaps the best summary of this approach can be found in the exposition of the law by the High Court of Australia in Ramsay v Watson where it was said:

“… The most satisfactory brief statement of the doctrine relied upon is a passage in Wills on Evidence 3rd ed. (1938), p. 209 as follows: ‘Whenever there is an issue as to some person’s state of health at a particular time, the statements of such person at that time or soon afterwards with regard to his bodily feelings and symptoms are admissible in evidence. This medium of proof does not appear, like most of those which are known as Declarations, to possess any special sanction of credibility; like declarations accompanying acts it would seem to have been admitted on the ground of necessity and convenience’.

The origin of this rule and its present scope and logical basis have been much discussed. It is easier to suppose it originated in practical necessity than to give it a logical place in a symmetrical scheme of conceptions concerning evidence. It is not confined to complaints of sensations of ill-health; for statements by a deceased man, said to have been poisoned, as to his state of health made before the poison was supposed to have been administered, have been received for the prosecution: R. v. Johnson (1). In some textbooks this rule has been put on the ground that the statements admitted were themselves relevant facts, because they were spontaneous and natural expressions of suffering forming part of a res gesta: Phillips, 10th ed. (1852) pp. 149, 150; Starkie, 4th ed. (1853) pp. 88, 468; Phipson, 8th ed. (1942) pp. 71, 72. And this view had some support from Professor Thayer in his article on Bedingfield’s Case reprinted in his Legal Essays (1927). But it seems better to regard such statements as evidence of the facts they recount, and thus as exceptions to the general rule excluding hearsay: see the remarks of Dixon J. in Adelaide Chemical and Fertiliser Co. Ltd. v. Carlyle (1); and see too an article by Professor Stone in (1939) 55 Law Quarterly Review 66, at 84, 85. The rationale of the rule allowing such evidence has been said to be that it was the best or only evidence available. If a man's bodily feelings at a particular time were relevant, but he could not be called as a witness, or was not a competent witness, what he had said at that time might be the only means of proving the fact. In most, if not all, of the cases in which this question has arisen the declarant was dead before the trial: … The remark of Holt C.J. in Thompson v. Trevanion (11) an action by a husband and wife for assault, battery and wounding of the wife is sometimes regarded as the beginning of this rule, but only because Lord Ellenborough referred to it in Aveson v. Kinnaird (12). The wife, being a party, was not a competent witness. Mr. Cross has said in his work on Evidence (1958) p. 387 of this topic: ‘Whatever may be its true nature, the evidence is received because it is frequently all that can possibly be available’. …

A sounder argument for admitting evidence of what the men had told the examining doctor might have been that it was part of the material on which he formed the opinion that he gave in evidence. When a physician's diagnosis or opinion concerning his patient's health or illness is receivable, he is ordinarily allowed to state the ‘history’ he got from the patient. This practice accords with what seems to be the better opinion in the United States: see Wigmore on Evidence s. 688. It matters not whether the person whose health is in question was a regular patient of the doctor, or whether the doctor saw him for the purpose of qualifying as a witness. This, of course, is quite a different matter from the rule last discussed. That, in cases where it applies, makes statements made to anyone concerning present symptoms and sensations admissible as evidence that those symptoms and sensations, in fact, existed. This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts.”[44]

85.  For the English position on this issue, a convenient starting point is two judgments of Lord Parker CJ in R v Ahmed Din[45] and R v Bathurst[46].  In the former case it was clearly assumed by the Court of Appeal that what is told by a person to a medical practitioner is, when related by that medical practitioner, hearsay evidence.  In that case the defence of diminished responsibility was relied on in respect of the appellant’s killing of a man with whom he believed his wife was having an affair.  After interviewing the appellant and his daughter the doctor concluded that the appellant was suffering from paranoia.  The Court of Appeal made the following comments on the medical reports:

“… It is to be observed at once that that opinion depends entirely on what they have been told by those of whom they have inquired. In the present case they inquired of the appellant himself whose mental state is suspect. They did apparently make an inquiry of the daughter, and the daughter said that she did not think or had no reason to believe that the mother had committed misconduct …

The information that the doctors had obtained was, of course, purely hearsay. Nobody at all was called by the defence to lay a basis upon which the doctors could express their opinion. …

…

In the present case, if the prosecution had considered step by step the ingredients in the section, it would at once have become apparent that any question of disease of the mind depended here on something of which the jury had to be satisfied, namely, that this man had no solid grounds for believing in his wife’s infidelity. That is not a matter for the doctors. They may have their own views about it, but that is no better evidence than any other. It is not a medical question. As it seems to this court, the prosecution, while not cross-examining the doctors on medical matters on which they are in full agreement, had a duty to probe the question whether or not the appellant was suffering from a delusion. Equally, as it seems to this court, it is for the defence to prove the facts upon which the doctors can express their opinion as experts. Here they did not attempt to do so, but relied on hearsay evidence given by the doctors.

It seems to this court that this case clearly shows the necessity for scrutinizing the medical reports in order to see how much of them consists of purely medical matters, and how much depends upon the facts which they have tried to ascertain, but cannot say whether they are true or not.”[47]

86.  In the subsequent judgment of R v Bathurst, Lord Parker, explained what he had said in Ahmed Din:

“ In giving the judgment of the Court I said (at p. 276): ‘As it seems to this Court, the prosecution, while not cross-examining the doctors on medical matters on which they are in full agreement, had a duty to probe the question whether or not the appellant was suffering from a delusion. Equally, as it seems to this court, it is for the defence to prove the facts upon which the doctors can express their opinion as experts. Here they did not attempt to do so, but relied on hearsay evidence given by the doctors.’

That case sets out what undoubtedly is the true position, namely that while questions of diminished responsibility are largely matters of medical opinion, nevertheless, where there is any issue on the matter, it is for the defence to lay a foundation of fact upon which the experts can give their opinion. Having said that, however, this Court is quite clear that the court in AHMED DIN (supra) never had in mind the idea that the defendant himself would have to be called. Their comment in that case is directed to the fact that the wife was not called to say that there were no reasonable grounds for his belief that she had been unfaithful, thus supporting the defence that he was suffering from a delusion; nor was the daughter called from whom some of the information was obtained, but the court never had in mind the idea that the defendant himself would be called, and indeed it is quite obvious, when one looks at that case, that it would be perfectly ridiculous to suppose that he should be called; if he did, he would have to go into the box and say: ‘I was suffering from a delusion,’ which was the one thing which he could not possibly prove.

Having said that, this Court feels strongly that while it may be there are cases in which a defendant ought to go into the witness-box, albeit his plea is one of diminished responsibility, yet the cases when comment on his failure to do so can properly be made must be very rare. One has only to go back to one's own experience at the Bar, and I think the experience of all practising barristers today, that almost in every case counsel defending a prisoner raising this defence would prevent him, if he could, from going into the witness-box. He may well be suffering from delusions, he may be on the border of insanity; it would be the last thing that any counsel would do to allow his client to go into the witness-box, and in those cases at any rate any comment on his failure to do so would be clearly unfair.

Having said that, the Court is prepared to concede that there may be cases where a defendant ought to go into the box, and where his failure to do so may be commented on, albeit the plea is one of diminished responsibility. There might be a case where the prosecution, by cross-examining the psychiatrist called for the defence, indicated that they were challenging some particular point, and a point which could only be spoken to by the defendant as opposed to some relations, friends, or the like, and in such a case, probably a very rare case, some comment might be justified.”[48]

87.  The English position then became solidified with the decision of another Chief Justice, Lord Lane, in R v Bradshaw, where he said:

“Although as a concession to the defence doctors are sometimes allowed to base their opinions on what the defendant has told them (ie hearsay) without those matters being proved by admissible evidence, yet the strict (and correct) view is that expressed at p.446 of Cross on Evidence, 5th ed., in the following terms: ‘A doctor may not state what a patient told him about past symptoms as evidence of the existence of those symptoms because that would infringe the rule against hearsay, but he may give evidence of what the patient told him in order to explain the grounds on which he came to a conclusion with regard to the patient’s condition.’

Thus, if the doctor’s opinion is based entirely on hearsay and is not supported by direct evidence, the judge will be justified in telling the jury that the defendant’s case (if that is so) is based upon a flimsy or non-existent foundation and that they should reach their conclusion bearing that in mind. In proper cases, for example where, as here, the defendant has completely recovered from any abnormality of mind by the time of the trial, there is no reason why the judge should not comment upon the fact that the defendant could have provided the necessary evidence had he wished to do so, the burden of proof being upon him.”[49] (Emphasis added.)

88.  The first basis for admissibility that is described in Ramsay v Watson will not usually be applicable in a criminal case where the evidence relied upon are statements by an accused.  We say that because the statements will usually, but not always, not possess the characteristic of contemporaneity that is a prerequisite to their admissibility.  Inevitably the interviews that are conducted by medical practitioners in preparation for trial are conducted well after the crime with which the accused is charged, was committed.  That was certainly the position in respect of this applicant.

89.  The question before us, therefore, is the narrow one of whether there was a basis for the applicant’s statements to the psychiatrists to be admissible as to the truth of their contents when the applicant did not give evidence and, if not, how the jury was to be directed in respect of them.  The case law also discusses the appropriateness of the trial judge making comment to the jury on the failure of an accused to give evidence[50] and whether a judge should exclude medical opinion evidence as being inadmissible when there is no evidence adduced to prove the factual matters on which the opinion is based.

90.  In the present case the judge made no adverse comment on the applicant not giving evidence.  What she did was to characterise the factual basis of the psychiatrists’ opinions as hearsay, because the applicant did not give evidence, and that as a consequence his statements to them could not be regarded as evidence.  Here, she was giving a legal direction on the consequence of the applicant not proving the factual basis for the psychiatrists’ expert opinions and the issue of whether she was right to do so is the issue before us.  If she was correct, then she cannot be criticised for what she said.

91.  The legal issue of excluding the psychiatric evidence on the basis that, without the factual foundation for the expert opinions having been proved, it was inadmissible, has not been argued before us.  Mr Bruce referred us to a number of Australian cases which suggest that there is no uniform practice within Australia.  Some courts adopt a flexible approach to the issue and allow the psychiatrist to give evidence even when the factual foundation is not proven[51]; others adopt a more strict approach to admissibility and if proof of the factual foundation is lacking then the expert opinion is regarded as inadmissible.[52] However, we note that the practice in Hong Kong is to generally regard a failure by an accused to testify as going to the weight of the expert opinion evidence on which he relies, rather than its admissibility, with the jury being told to disregard it if they find the factual foundation for the opinion has not been proven.[53]

92.  Mr Bruce relies on a line of Australian cases which he says support his proposition that the applicant’s statements to the psychiatrist, being statements as to only his state of mind at the time of the offence, were admissible.  This line of cases starts with Gordon v R, a judgment of the High Court of Australia in May 1982.  This judgment consists of only four paragraphs of substance and in one of them the court said, in the course of refusing special leave to appeal:

“In the case of psychiatric evidence, statements made to the psychiatrist may be themselves original evidence, in which case they need no confirmation in the witness box. In the present case, however, the statements made to the psychiatrist and upon which he relied, but which were not proved in evidence, were not of that character.”[54]

Ever since, courts in Australia have been grappling with what kind of evidence the High Court was referring to and the legal basis for its statement. 

93.  Before leaving this case it is worth quoting the comments of the New South Wales Court of Criminal Appeal in the judgment in Gordon that was under appeal.  In giving a judgment with which the other members of the court agreed, Street CJ said:

“Evidence from medical witnesses based upon histories and other material placed before them, which is in its nature hearsay, is commonly admitted, but to the extent that professional opinion is dependent upon hearsay, then there is the expectation that the material presented as hearsay by the medical witness will be substantiated in affirmative, probative form. To the extent that such substantiation may fall short, then the weight of the professional opinion will suffer. This is a convenient method of permitting an expert witness to place his evidence before a tribunal of fact. It proceeds, however, upon the basis that, where objection is taken, an attempt with genuine prospects of success will be made to substantiate the hearsay material. A significant shortfall could totally negate the worth of the professional opinion and could, in some cases, lead to the discharge of the jury on the application of the other side.”

These comments are interesting as they reflect an attempt to reconcile the potentially harsh consequence of characterising the medical history as hearsay with the desire not to cause unfairness to an accused.  We shall return to this issue later in this judgment.

94.  Chronologically, the next relevant judgment is that of the High Court of Australia in Walton v R[55]. In that case the accused was being tried for murder.  Witnesses gave evidence of statements by the deceased in their presence of her intention to meet the accused the following day.  The issue was whether this was hearsay evidence and, if not, on what basis it was admissible.

95.  Mason CJ, in agreeing with Wilson, Dawson and Toohey JJ, analyzed the legal issue as follows:

“The hearsay rule applies only to out-of-court statements tendered for the purpose of directly proving that the facts are as asserted in the statement. Generally speaking, evidence of out-of-court statements relied on for another purpose is not excluded by the rule. Thus, evidence of a relevant out-of-court statement is admissible evidence of the maker's knowledge or state of mind when he made the statement in a case where such knowledge or state of mind is a fact in issue or a fact relevant to a fact in issue: Reg. v. Blastland (14). Similarly, a person’s statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were. As Mellish L.J. remarked in Sugden v. Lord St. Leonards (15):

‘(W)herever it is material to prove the state of a person’s mind, or what was passing in it, and what were his intentions, there you may prove what he said ...’

The point is that the making of the statement is itself evidence of the author’s intentions at the time the statement was made. Evidence of the making of the statement may be given by the author himself or, in the case of an oral statement, by any person who heard it made.

Statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence: see Peipman v. Turner (16); Nash v. Commissioner for Railways (17); Dobson v. Morris (18); Thomas v. Connell (19); Brodie v. Brodie (20); Lloyd v. Powell Duffryn Steam Coal Co. Ltd. (21). Wigmore on Evidence, Chadbourn rev. (1976), §1715, suggests that such statements are an exception to the hearsay rule on the ground that a statement about a person’s intentions is direct and testimonial, whereas conduct indicative of such intentions is indirect and circumstantial. But the better view is that evidence of such statements is not merely hearsay. Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author's intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness's testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule: Lloyd (22); Dobson (23); Nash (24).”[56] (Emphasis added.)

96.  The statement of intention will be admissible where a factual issue is relevant to that statement of intention.  Thus, if the author of the statement says he will do a particular thing or will be at a particular place at a particular time and it is relevant to prove any of these matters without his evidence then a person who heard him make this statement can give evidence of it.  The fact that the author said what he would do or where he would go can be a piece of circumstantial evidence that he in fact did what he said he would do.

97.  Although Mr Bruce acknowledges that what Mason CJ had to say in Walton v R had nothing to do with medical histories given to medical practitioners, he nevertheless submits that the principle described by Mason CJ in the sentence above which is in italics, “is of broad application”.  We cannot agree it is of broad application as it is confined to those situations where what was said does not breach the hearsay rule because the relevance of what was said lies in the fact that it was said, not the truth of any fact asserted or referred to in what was said.

98.  Its application is well illustrated by the case of R v Hendrie in which King CJ of the South Australian Supreme Court clearly explained why such evidence did not infringe the rule against hearsay.  This case concerned the trial of a painter/decorator for the murder of a woman in the bedroom of a house.  The prosecution relied on a statement by the husband of the deceased as to a conversation he had with her in which they discussed converting a window of the bedroom into a door.  The conversation was adduced in order to explain why the deceased might have gone to the bedroom with the accused without any struggle.  King CJ said:

“In my view, there was no hearsay element in the evidence which was adduced relating to this conversation. What was sought to be proved by the prosecution was the reason why the deceased was in the bedroom with the offender without a struggle. The existence of an intention on the part of the deceased to have work done in relation the window tended to explain that. The intention was therefore a relevant fact. The conversation between the deceased and her husband was original evidence tending to prove the state of mind and intention of the deceased at the time when the conversation took place and by inference her intention and state of mind on the morning of the crime in relation to the window.

It is well established law that a person’s state of mind may be proved by contemporaneous statements made by that person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind. Their evidentiary value is derived from experience of human behaviour which indicates that people tend to express their intentions or their states of mind. For that reason what a person says is some evidence of what he is thinking. It is circumstantial evidence which may form a basis for an inference as to his intention or other state of mind.

This evidence, as it seems to me, was properly admitted because it consisted of statements by the deceased which tended to indicate that she had an intention with respect of the window. The existence of that intention with respect to the window tended to provide the explanation of her being in the bedroom and of the first signs of struggle occurring in the bedroom. In my opinion, therefore, the evidence was not objectionable as hearsay and was properly admitted.”[57]

99.  Clearly, this category of non-hearsay evidence, to which Mason CJ was referring in Walton and King CJ in Hendrie, relates to those situations where the fact that something was said has probative value in its own right, independent of any factual assertion it might contain.  Because the statement is not being adduced to prove any fact contained within it, it is not in breach of the hearsay rule.  In that respect, the Ramsay v Watson second category can be seen as an illustration of the Watson v R principle.  The relevance of the statements of the applicant to the psychiatrists lies not in proving that the applicant in fact experienced the psychotic episode that he describes; rather they are set out in the reports solely for the purpose of establishing what the psychiatrists were told by the applicant (that is, that they were said) and that, in consequence, they formed the factual assumptions on which the psychiatrists based their expert opinions.  Whether the applicant experienced a psychotic episode is for the jury to decide, not the psychiatrists, but that decision they can only make when admissible evidence relating to it is placed before them.

100.  Contrary to what Mason CJ said, Mr Bruce is seeking to use what the applicant told the psychiatrists for a hearsay purpose, namely to prove that at the time the applicant killed the deceased he was experiencing the psychotic episode he described.

101.  We do not accept that what Mason CJ said was intended as a gloss upon the Ramsay v Watson second category.  He was referring to statements revealing the state of mind of the speaker at the time the statements were made; not statements of a state of mind that existed at some time in the distant past.

102.  Mason CJ also made some comments urging a more flexible application of the hearsay rule.  He said:

“ The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay. It must be borne in mind that the dangers against which the rule is directed are often very considerable, as evidenced by the need for the rule itself. But especially in the field of implied assertions there will be occasions upon which circumstances will combine to render evidence sufficiently reliable for it to be placed before the jury for consideration and evaluation of the weight which should be placed upon it, notwithstanding that in strict terms it would be regarded as inadmissible hearsay.

...

To this extent it can be said that the hearsay rule is less rigorous in its application to implied assertions than it is in the case of express assertions. It is for the trial judge to decide whether or not a particular implied assertion is of a kind to which the rationale underlying the hearsay rule would be relevant. If the judge determines that an assertion is express or is otherwise one which it would be dangerous to admit as hearsay, then the ordinary rules of hearsay and the various exceptions to the general exclusionary rule will then be applied. But where the assertion is one made by implication only, it is necessary for the judge to balance the competing considerations in order to determine admissibility, since the dangers associated with hearsay evidence will not all necessarily be present. In very rare cases it may be that such an approach will be appropriate also for an express assertion, for the same reasons, but it will be uncommon for a situation to arise in which an express assertion is made which does not come within a recognized exception to the hearsay rule and yet which despite being tendered as proof of what it asserts would not offend the basis of that rule. In particular, an express assertion will often lend itself more readily to a suspicion of concoction.”[58]

103.  This brings us to R v Pangallo, a case of murder in which the defence of insanity was relied on through the evidence of two psychiatrists who testified that the accused was suffering from paranoid schizophrenia. 

104.  The murder took place on 27 and 28 December 1987.  The accused did not give evidence but there was evidence from other sources relating to the accused’s mental health.  The judge admitted the interview with the psychiatrist that took place on 31 December 1987 under the Ramsay v Watson first category for admissibility.  There were interviews in June and August 1989 and the Prosecutor did not object to their admissibility under the second category of Ramsay v Watson, but she submitted that, in accordance with the Ramsay v Watson principle, “the opinions given by the psychiatrists should not be accepted because they depended so much on assertions made to them by the accused and not confirmed here.”[59] In response to this submission Prior J said:

“To limit the admissibility of statements about the accused’s state of mind in accordance with the rules discussed in Ramsay v Watson smacks of unfairness. It could be more than that in cases where an accused’s continuing state of mind is such that he would be advised not to give evidence himself. Indeed, in this case, Dr Clayer felt it unwise for the accused to give evidence at all because of the dangers of suicide. Dr Lucas thought that medication should enable the accused to give evidence without any substantial increase in such a risk.”[60]

105.  Prior J then referred to Gordon v R and interpreted the comment that statements to a psychiatrist may themselves be original evidence as referring to statements by an accused about his state of mind.  He reached this conclusion after referring to what was said in R v Blastland[61] and Walton v R.  He said:

“The accused’s statements to the psychiatrists about his state of mind constitute original evidence. Such statements may be acted upon without the accused affirming them in evidence.”[62]

106.  If Prior J is correct then it would mean that any part of a medical history that related to the accused’s mental state would be admissible, not as an exception to the hearsay rule, but in its own right.

107.  The only occasion where Prior J’s judgment has been considered by an appellate court appears to be R v Barrett, a 2007 judgment of the Court of Appeal of the Supreme Court of Victoria.  However, after setting out the issues that fell to be addressed from the case law, the Court of Appeal declined to state its position as it had not heard full argument on the question.  The Court said:

“117. The ambit of Gordon is by no means certain. Nor is the ambit of Ramsay v Watson beyond doubt. Indeed, as Prior J noted, the High Court had not held in Ramsay v Watson that it was mandatory for a trial judge to exclude expert evidence which was based on a patient’s history that was not to be confirmed in the witness box. The Court merely held that the opinion evidence ‘may have little or no value’ in those circumstances.

118. I note, however, that one important consideration that led Prior J to admit the evidence was his concern that it would be unfair in a trial where insanity was in issue to impose a prerequisite for the admission of opinion evidence of a psychiatrist that no narrative statements be relied upon unless they were confirmed in evidence by the accused. His Honour heard evidence that it would endanger the mental health of the accused were he to give evidence.

119. It is, indeed, common for psychiatrists dealing with a mental impairment or insanity defence to give evidence based, in part, on the history they had been given by an accused person, but without the accused giving confirmatory evidence in the witness box of the matters he or she had recounted to the psychiatrist.  Were this Court to make a ruling as to the validity of that practice then it ought do so only after hearing full argument.”

108.  Thus, there is division within the common law world on how to treat non-contemporaneous[63] medical histories.  The various approaches can be summarised as follows:

(i)  medical histories are hearsay and the consequence of there being no evidence adduced to prove them is that the judge is entitled to:

(a)  direct the jury that the factual foundation for the expert opinion has not been proven and therefore the expert opinion carries little or no weight or should be disregarded; and

(b)comment to the jury that the accused could have testified to prove the factual foundation but chose not to;

(ii)  medical histories are hearsay and the consequence of there being no evidence adduced to prove them is that the judge should rule that the expert opinions that rely upon them are inadmissible; and

(iii)  the medical history must be examined to determine whether it contains only a narration of past events which may[64] be hearsay or also statements as to the accused’s mental state which are not hearsay.

Under (i) above the expert opinion remains before the jury but under (ii) above the expert opinion is excluded from the evidence in the trial.

109.  We do not accept that a distinction can be validly made between a narration of events and a description of a state of mind, such as feelings, perceptions, hallucinations or delusions, for behind every such description is an assertion that they occurred; that they were actually felt and experienced by the accused.  Of course the accused is not trying to prove the truth of them because they are not real; only that they were real to him because at the time he committed the offence, he experienced them.  The expert cannot say that the accused experienced them, but can only give an expert opinion based upon an assumption that the accused did experience them.  Whether the accused truly experienced them is a fact in issue which requires proof and of which the jury is the final arbiter.

110.  This distinction is also unattractive for the reason that it makes intelligible direction to the jury difficult, if not impossible, when a medical history contains a mixture of a narration of events and assertions as to the accused’s state of mind.

111.  We have not, as yet, discussed existing Hong Kong case authorities on this subject.  Surprisingly, there appears to be only one, the Court of Appeal decision in HKSAR v Kissel[65].

112.  In this case the applicant relied on the defence of diminished responsibility.  Reports were compiled by psychiatrists on behalf of both the defence and the prosecution.  The prosecution chose not to call its psychiatrist, but the defence wished to take advantage of an opinion expressed by him in his report.  However, they did not wish, themselves, to call him.  In order to obtain the benefit of the prosecution psychiatrist’s opinion, without calling him as its witness, the defence incorporated his favourable opinion into the defence psychiatrist’s report. The prosecution objected to this course and the judge ruled that, without calling the prosecution psychiatrist, the content of his medical report was inadmissible and the defence psychiatrist could not include in his report the opinion of the prosecution psychiatrist or make reference to it.  This ruling of the judge became a ground of appeal.

113.  In the course of dealing with this ground of appeal, before ultimately dismissing it, the Court of Appeal discussed the basis for admissibility of hearsay evidence in expert reports.  It started with the following propositions:

“132. In general, the factual basis for the opinion evidence of an expert must itself be admissible and not hearsay. It is however recognised that opinions expressed by experts are invariably based on assumed facts and it is often necessary to refer to those assumed facts when the experts give evidence. The law therefore recognizes exceptions to the hearsay rule and one of those exceptions applies to expert witnesses who are entitled to express opinions based on information, published or unpublished and usually in written form, received from other experts.

133.   However, an expert can only rely on other experts’ works, including the published works of eminent authors if they are general in nature and that they are part of the corpus of knowledge with which an expert in his field can be expected to be acquainted. …”

114.  In support of these propositions the Court of Appeal referred to statements by Bingham J in H v Schering Chemicals Ltd[66] and a summary of the law by Professor Rosemary Pattenden in her article Expert Opinion Evidence Based on Hearsay[67]. Professor Pattenden’s summary of the legal principles, as quoted by the Court of Appeal, was as follows:

“135. Professor Pattenden came to the following conclusion (at p.95):

1. Unless a common law or statutory exception to the hearsay rule applies an expert cannot give substantive evidence of what others have told him.

2. There are two common law hearsay exceptions peculiar to experts. The first relates to technical data widely used by members of the expert’s profession, not confined in relevance to the facts of the case about which he is testifying and regarded as reliable. The second relates to knowledge which the expert can be assumed to have and on which he draws to formulate his opinion and to express working truths but which he has not learnt through personal experience. To some extent these exceptions overlap.

3. An opinion by an expert based in whole or in part on hearsay is admissible if the party calling the witness has proved or intends to prove the facts on which the expert relies, the opposite side has formally admitted the facts on which the opinion is founded, or an exception to the hearsay rule can be invoked.

4. If an expert expresses an opinion which is based on reported data which is to be or has been proved by other evidence the expert can repeat the hearsay to the court for the purpose of explaining how the opinion was reached.

5. If the hearsay basis of an opinion is not supported by admissible evidence at the end of the trial and no exception to the hearsay rule can be relied upon, the opinion must be ignored unless the hearsay played no real role in the formation of the opinion or the part based on hearsay can be severed from the part based on first-hand knowledge.

6.  …”

115.  Thereafter, in order to respond to the arguments of the applicant’s counsel, the Court of Appeal discussed what an expert could refer to in his report, saying.

“139. It was considered both unobjectionable and desirable for an expert to relate to the court information derived second-hand and which underpins his opinion. (See Ramsay v Watson (1961) 108 CLR 642, 648; R v Henry [1977] Qd R 204, 212).

140.   However ‘If the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone.’ (Per Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ at p.649) In R v Turner (1974) 60 Cr App R 80, the English Court of Appeal also stressed the need to prove strictly the facts upon which an expert opinion rests.”

116.  At [142] the Court of Appeal stated the legal position to be as follows:

“142. In our view, where an opinion by an expert is based on the reports of others and if the reports will not be proved by other evidence, then whether the reports are described as irrelevant, or having no weight, the better approach is to exclude those reports as evidence to avoid the danger that they may unduly influence the jury. An expert should not be allowed simply to reproduce another expert’s opinion as a support to his own conclusion or just to echo other experts’ opinions to reinforce his own when these opinions were prepared for the purpose of litigation and were related to a contested issue in the case.”

117.  The defence psychiatrist was Dr Wong and the prosecution psychiatrist was Dr Lui.  The Court of Appeal described the evidence that Dr Wong could lawfully give as follows:

144.   Dr Wong, of course, was entitled to take into consideration what the applicant had told him in his assessment of her condition in the expectation that the applicant would give evidence at trial, although what she told him could not be evidence as to the truth of what she said. But Dr Wong was going further when he sought to introduce Dr Lui’s expert report which contained the latter’s findings on the applicant’s mental condition, one of the major issues in the case. It was also made clear at the outset that the defence had no intention to call Dr Lui to give evidence.”

118.  An important contextual element in this case is that the applicant did, in fact, give evidence and so the precise issue that arose in the present case was not before the Court of Appeal.  Nevertheless, it is clear that the Court of Appeal accepted the following propositions of law:

(1)  a doctor can give evidence of what a patient has told him if what the patient told him underpins any opinion the doctor forms on the patient’s medical condition;

(2)  what a patient tells a doctor is not evidence of the truth of what is said; and

(3)  where an opinion by an expert is based on the reports of others and if the reports will not be proved by other evidence, then whether the reports are described as irrelevant, or having no weight, the better approach is to exclude those reports as evidence to avoid the danger that they may unduly influence the jury.  

119.  Thus, on the basis of existing authority we are bound to regard what a patient tells a medical practitioner as to his state of mind and the circumstances in respect of an event occurring at some time in the distant past as hearsay evidence which cannot be used as evidence of its truth.  That, it seems to us, is the uniform view of the common law in England and Australia and it is the clear view of our own Court of Appeal.  Therefore, the question for us is whether we are justified in departing from the settled law of Hong Kong and in creating new law. 

120.  In Hong Kong the Court of Appeal is bound by its previous decisions and can only depart from a previous decision where it is satisfied that its previous decision is plainly wrong.  This test was laid down by the Court of Final Appeal in Solicitor (24/07) v Law Society of Hong Kong[68].  

121.  In explaining what was involved in the application of the “plainly wrong” test Li CJ said:

“46. Where the arguments whether the previous decision is wrong are finely balanced, the Court of Appeal’s mere preference for the view that it is wrong would plainly be insufficient to justify departure from it. Even where the Court of Appeal is satisfied that the arguments against its previous decision are more substantial and cogent than the contrary arguments in its favour, this would still be insufficient. It is only where the Court of Appeal is convinced that the contentions against its previous decision are so compelling that it can be demonstrated to be plainly wrong that the test is satisfied.

…

50. The Court of Appeal would undoubtedly approach the matter with great caution, having regard to the great importance of the doctrine of stare decisis. The possible ramifications of disturbing the basis on which property, commercial and other transactions have been entered into and rights have been acquired would have to be borne in mind. It must be emphasised that the plainly wrong test sets a high hurdle. The departure from a previous decision in accordance with this test should be wholly exceptional and should only occur very rarely.”[69]

122.  Given the abundance of authority on this issue and the high hurdle set by the “plainly wrong” test, we cannot possibly say that the Court of Appeal decision in Kissel is plainly wrong.  Indeed, we are bound by it.

123.  Once it is accepted that the statements of the defendant are hearsay, and on the assumption that they are not proven by other admissible evidence, the question then arises of what to do with the expert’s report.  The judge can either exclude the report as being inadmissible because it is irrelevant, or allow the report to be placed before the jury with a direction that when considering what weight to give to it, they have regard to the fact that the factual scenario on which it is based has not been proven.  The Court of Appeal in Kissel appears to have favoured excluding the report, although, arguably, it did not make a positive determination of this issue.  We are of the view that there are cogent arguments against both options and we are not attracted to either of them.  

124.  In our view, the strict application of the hearsay rule results in the expert opinion being ruled inadmissible.  Yet, if, because of his medical condition, the accused is advised not to testify then the consequence of possibly preventing him from advancing his defence seems a disproportionate response created by an inflexible application of the hearsay rule.  We see this as an area of the criminal law where a balance has to be struck between strict legal principle and fairness to an accused.  We are, after all, dealing with defences to the most serious crime known to the criminal law which, on conviction, attracts a mandatory sentence of life imprisonment.

125.  However, once it is decided that the expert opinion may be put in evidence, the question then becomes how to direct the jury on it.  We cannot help but wonder what the jury would understand of a direction that they may have regard to the expert opinion but not to the truth of the unproven facts on which it is based.  When put like this, such a direction is, with respect, a nonsensical one because the probative value of the former depends entirely upon having regard to the truthfulness of the latter. If understood by the jury, such a direction will, in effect, require them to ignore the expert opinions and so the judge might just as well have excluded them from evidence.

126.  An analogous issue arose in the common law’s approach to directing the jury in respect of the content of a mixed statement given by an accused out of court which the prosecution adduce as part of their case.  The traditional, strict, approach was to say that the admissions of the accused, being against interest, were an exception to the hearsay rule but the exculpatory parts were not evidence as they were prior self-serving statements.  In R v Sharp the dichotomy between the two views was explained by Lord Havers as follows:

“The difference in the authorities centres upon the status to be attached to those parts of a mixed statement that excuse or explain an admission and are intended to show that the admission does not bear the inference of guilt it might otherwise attract…All the authorities agree that it would be unfair to admit the admission without admitting the explanation and the only question is how best to help the jury evaluate the accused’s statement. The view expressed in Duncan, 73 Cr. App. R 359 is that the whole statement should be left to the jury as evidence of the facts but that attention should be drawn, when appropriate, to the different weight they might think it right to attach to the admission as opposed to the explanation or excuses. The other view, which I might refer to as the “purist” approach, is that, as an exculpatory statement is never evidence of the facts it relates, the jury should be directed that the excuse or explanation is only admitted to show the context in which the admission was made and they must not regard the excuse or explanation as evidence of its truth.”[70]

127.  In its judgment the House of Lords recognised that the “purist” approach was not a practical approach that would be understood by lay jurors.  The need for jury directions to be intelligible to lay persons was emphasized by Lord Mackay of Clashfern LC in the same case.  He said:

“It has to be borne in mind that the purpose of giving directions to a jury is that they may apply them in reaching their verdict in the particular case. The vast majority of jurors will not have had the experience of studying law and accordingly the concepts to be put before them must in my opinion be capable of reasonably straightforward expression and application if this purpose is to be achieved.”[71]

128.  In words which resonate with the issue we must now decide, the following comments of Lord Havers in resolving the question before the House of Lords, bear repeating:

“How can a jury fairly evaluate the facts in the admission unless they can evaluate the facts in the excuse or explanation? It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast on the admission, and it is surely only because the excuse or explanation might be true that it is thought fair that it should be considered by the jury. I agree with Lawton L.J. that a jury will make little of a direction that attempts to draw a distinction between evidence which is evidence of facts and evidence in the same statement which whilst not being evidence of facts is nevertheless evidentiary material of which they may make use in evaluating evidence which is evidence of the facts. One only has to write out the foregoing sentence to see the confusion it engenders.”[72]

129.  There are certain similarities between the issue in Sharp and the issue before us.  In Sharp there were two types of evidence; the admissions could be used as evidence of their truth whilst the exculpatory parts could not and the jury would have to be directed that there was a limited use only to which they could put those parts.  For the House of Lords, this raised issues of both fairness and practicability and they resolved these issues by the simple means of saying that henceforth the jury should be directed that the whole of the statement should be considered by them in deciding where the truth lies but that the judge may comment to the effect that the exculpatory parts may carry lesser weight.  This has become the law of Hong Kong.

130.  In the case of unproven medical histories we have the question of whether the jury should be directed that their content is not evidence but that the expert opinion founded on them remains evidence before them for their evaluation.  In our view this is not a practical approach which a jury will be able to apply.  We can see difficulties with the purist approach of treating the expert opinion as inadmissible; nor do we see the solution as lying with the approach of Prior J of trying to find an appropriate legal pigeon hole into which to fit unproven medical history evidence so that it is taken out of the Ramsay v Watson second category and given original admissibility in its own right.

131.  Heeding the encouragement of Mason CJ to adopt a more flexible approach to hearsay evidence, and attracted by what the House of Lords accomplished in R v Sharp, we see that a possible, and not unattractive, solution would be to cut the Gordian Knot created by the rule against hearsay, as it applies to unproven medical histories, in the same way that the House of Lords did in R v Sharp in respect of mixed statements. 

132.  This would mean that, henceforth, juries would be directed that the whole of the expert opinion is before them for them to determine where the truth lies.  The judge would further direct them that the expert opinion is founded upon, and assumes the truth of, the medical history provided by the accused but that it is for the jury to decide whether they accept this medical history as true or not.  Where the accused has not given evidence in support of his medical history, the judge may comment that the jury is entitled to take that into account when determining what weight they should give to the medical history and that determination may affect their assessment of the expert opinion which is founded on that medical history.[73] The judge could also, in appropriate cases, make a Bradshaw comment, namely, that the defendant bears the burden to establish the defence and could have provided the evidence to prove the medical history had he chosen to do so.  Such a comment would not be appropriate where there were medical reasons for the accused not testifying.

133.  However, for reasons of stare decisis, the merits of our suggestion for what the law should be, must be left to others to decide.

134.  In the present case the judge directed the jury that the medical history of the applicant was not evidence before them.  In view of our decision on the state of the current law we must hold that this was not an erroneous direction.

I.     Disposition

135.  We allow the application for leave to appeal but dismiss the appeal.

[1] Appeal Bundle, page 11 at [34] of the Admitted Facts.

[2] They had overnighted at this hotel on 13 October 2015 prior to flying to Manila.

[3] Appeal Bundle, page 447, counter 48.

[4] Appeal Bundle, page 451, counter 108.

[5] Appeal Bundle, page 452, counter 115.

[6] Appeal Bundle, page 452, counter 122.

[7] Appeal Bundle, pages 452-453, counter 124.

[8] Appeal Bundle, page 464. 

[9] Appeal Bundle, page 552O-T.

[10] Appeal Bundle, pages 465-467.

[11] Appeal Bundle, pages 470-471.

[12] Appeal Bundle, page 126S.

[13] Appeal Bundle, page 478 at [7].

[14] PW10’s medical report, paragraph 8: Appeal Bundle, page 482.

[15] Appeal Bundle, page 483 at [10].

[16] Appeal Bundle, page 483 at [12].

[17] Appeal Bundle, page 170L-N.

[18] Appeal Bundle, page 484 at [3].

[19] Appeal Bundle, page 485 at [11].

[20] Appeal Bundle, page 486.

[21] Appeal Bundle, page 491A.

[22] Appeal Bundle, page 491C.

[23] Appeal Bundle, page 528 at [89].

[24] [2000] 3 HKLRD 573

[25] (2008) 11 HKCFAR 354

[26] (1989) 51 5 ASR 254

[27] Applicant’s Further Outline of Submissions for Appeal Against Conviction.

[28] This was confirmed by Mr Chui in response to an enquiry made of him by Mr Bruce.

[29] (2019) 22 HKCFAR 368, 385-387.

[30] [1986] WLR 1202 at 1205-1206.

[31] HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368, 388-389.

[32] Appeal Bundle, pages 32P-33H.

[33] Appeal Bundle, pages 64R-65L.

[34] Appeal Bundle, page 39L-T.

[35] [1994] 1 WLR 971

[36] Appeal Bundle, pages 448-450 at counters 62-95.

[37] A-G’s Reference (No 1 of 2004) [2004] 1 WLR 2111, 2148E at [130].

[38] Appeal Bundle, page 38C-R.

[39] Appeal Bundle, pages 40K-41A. 

[40] Appeal Bundle, page 48L-M.

[41] Appeal Bundle, page 51B-D.

[42] Appeal Bundle, page 51G-M.

[43] Appeal Bundle, page 52H-L.

[44] (1961) 108 CLR 642, 647-650.

[45] (1962) 46 Cr App R 269

[46] (1968) 52 Cr App R 251

[47] (1962) 46 Cr App R 269, 274.

[48] (1968) 52 Cr App R 251, 255-256

[49] (1985) 82 Cr App R 79, 83.

[50] As happened, for example, in R v Bathurst (1968) 52 Cr App R 251 and R v Barry (Adrian) [2010] 1 Cr App R 32.

[51] See R v Barrett (2007) 171 A Crim R 315, 340 at [119]; R v Gordon BC8111151 quoted at [92] of this judgment.

[52] See, for example, Koushappis v Western Australia (2007) 168 A Crim R 51 at [47]; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64] and [55]; R v Ping (2005) 159 A Crim R 90 at [43]-[46].

[53] See the Hong Kong Judicial Institute’s Specimen Directions in Jury Trials, November 2020, Chapter 110, pages 110-2 at Note 2 and Specimen Directions at 110-4.  Although encouraging judicial officers to scrutinise reports for the presence of inadmissible hearsay evidence the Notes do not address the issue of the impact of the presence of such material on the admissibility of the report itself.  The Specimen Direction at 110-4 suggests that the jury should be directed:

     “The expert evidence … appears to be based on facts which [the expert] has been told. You should analyse the evidence of the [the expert] and determine the extent to which [his/her] opinion depends upon the facts … being correct. If the opinion is based upon facts which you are satisfied have been proved, … then it is a matter for you to consider whether the opinion that is based upon those facts … is correct. On the other hand, if you decide that the facts have not been proved … then any opinion based upon them is of no assistance because it has no foundation. If that is the case, the opinion should be disregarded.”

[54] Gordon v R (1981) 41 ALR 64

[55] (1989) 166 CLR 283

[56] (1989) 166 CLR 283, 288-289.

[57] (1985) 37 SASR 581, 585.

[58] (1989) 166 CLR 283, 293-294.

[59] (1989) 51 SASR 254, 270.

[60] Ibid.

[61] [1986] AC 41 where Lord Bridge of Harwich said at page 54D:

     “It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made.  What a person said or heard said may well be the best and most direct evidence of that person’s state of mind.  This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial.”

[62] (1989) 51 SASR 254, 271.

[63] We use the word “non-contemporaneous” to refer to medical histories that are outside the ambit of the Ramsay v Watson first category.

[64] This depends on what is meant by the High Court of Australia in Gordon v R.  In R v Barrett the Court of Appeal of Victoria thought Prior J treated it as encompassing even a narrative of past events.

[65] [2014] 1 HKLRD 460

[66] [1983] 1 WLR 143

[67] [1982] Crim LR 85

[68] (2008) 11 HKCFAR 117

[69] (2008) HKCFAR 117, 141-143.

[70] [1998] 1 WLR 7, 12A-D.

[71] ibid, 9B-C.

[72] [1988] 1 WLR 7, 15E-F.

[73] Such a comment would be along the same lines as the comment that is made in respect of mixed statements, namely, “you may feel that there is less weight to be attached to his [excuses] [explanations], for they were not made on oath, have not been repeated on oath, and have not been tested by cross-examination.” See Hong Kong Judicial Institute, Specimen Directions in Jury Trials, November 2020, Chapter 113-5.