HKSAR v. NANCY ANN KISSEL

CACC 66/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 66 OF 2012

(ON APPEAL FROM HCCC NO. 55 OF 2010)

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.  The applicant was charged with the murder of her husband (the deceased) on 2 November 2003 at a flat in the Parkview Complex in Tai Tam (the apartment) where they lived with their children (E, J and R) and two domestic helpers (Connie and Min).

2.  On 19 May 2005, the applicant was arraigned before Lunn J (the first trial) when the applicant accepted she had killed the deceased, but raised by way of defence, self-defence, provocation and diminished responsibility.  The defence of diminished responsibility was abandoned after she had been cross-examined.

3.  On 1 September 2005, the applicant was convicted as charged and her appeal to the Court of Appeal was dismissed on 6 October 2008 when the Court of Appeal made some strong adverse comments about the applicant.

4.  The Court of Final Appeal allowed the applicant’s appeal against conviction on 11 February 2010 on the basis that the prosecution’s cross-examination of the applicant on matters relating to her bail application and the admission of certain hearsay evidence (the deceased had spoken about his suspicion that the applicant was trying to poison and kill him) was unfair.

5.  The Court of Final Appeal ordered a retrial in the absence of any attempt to urge the Court not to do so on the basis that a fair trial was not possible.  Indeed, counsel for the applicant “acknowledged the strength of the arguments in favour of a retrial and realistically refrained from offering any argument against one”. (Judgment of the Court of Final Appeal (2010) 13 HKCFAR 27 at para.268)  The Court of Final Appeal made the following observation (at paras.269 and 270):

“269. … The following three points emerge from what was said in the Privy Council by Lord Diplock in Au Pui Kuen v. Attorney-General [1979] HKLR 16 at p.19 and in this Court by Lord Woolf in Ting James Henry v. HKSAR (2007) 10 HKCFAR 632 at pp.651G-653H. First, whether or not there should be a retrial is a matter of discretion. Secondly, it depends on what justice requires. And thirdly, it may involve balancing a number of factors some of which may weigh in favour of a retrial and some of which may weigh against it.

270. Despite how long ago the fatal incident took place, the time which [the applicant] has already spent in custody and the fact that she now appears to be in very poor health, I regard it just and proper, all things considered, that she be retried on a fresh indictment for murder. …”

6.  At the retrial before Macrae J (as he then was) (the judge), the applicant again admitted killing the deceased and was prepared to plead guilty to manslaughter on the basis of provocation or diminished responsibility.  The prosecution did not accept her plea and the retrial commenced on 11 January 2011, following an unsuccessful application for a permanent stay in November 2010.

7.  The retrial concluded on 25 March 2011 when the applicant was unanimously convicted by a nine-member jury as charged and sentenced to life imprisonment.  Almost one year later, on 15 February 2012, the applicant sought leave to appeal against conviction out of time.

8.  The reasons advanced for the delay were that the applicant was having mental and physical problems, and could not face the prospect of further court proceedings.  Instead she wished to be transferred back to USA to serve her sentence.  It was suggested that the applicant did not consider appealing even though she was told there were good grounds.

9.  The applicant changed her mind subsequently and is now no longer certain that she wants to be transferred to the USA and hence the delay in the application for leave to appeal.  It is suggested that the applicant’s decision not to appeal was not a rational one.  It is emphasized that the applicant has strong arguable grounds of appeal, and it is in the interests of justice they be given full consideration by the Court.

The Facts and the Prosecution Case

10.  The applicant and the deceased first met in 1987 when they were both living in New York.  They married in 1989 and they moved to Hong Kong in 1997 when the deceased took up employment with Goldman Sachs in Hong Kong.  In 2000, the deceased joined Merrill Lynch and his annual income was US$175,000 plus commission and bonuses.

11.  The deceased earned almost US$6 million in the years 2000 to 2003 and he had an asset of over US$15 million.  The applicant was named the first beneficiary (and the estate of the deceased as the second beneficiary) in the three life insurance policies taken out by the deceased in the USA, the total face value of which was US$ 5 million.

12.  The applicant and the deceased were happily married, but their relationship began to deteriorate significantly in 2002.  In 2003, the applicant had an affair with Michael, an electrician responsible for the installation of very expensive hi-fi and electrical equipment in the Kissel’s holiday house in Vermont USA.

13.  The deceased was keen to save the marriage initially.  However, in July 2003, the deceased became aware of the affair between the applicant and Michael when he discovered affectionate emails between them.  The affair was also confirmed by a report compiled by a private detective he engaged to keep the applicant under observation.  Apparently the applicant was in contact with Michael by constant emails and daily telephone conversations since mid 2003.  On 21 August 2003, the applicant typed her thoughts in which she referred to her affair with Michael and noted that the deceased would never trust her again.

14.  In October 2003, the deceased discovered the existence of a secret mobile telephone used by the applicant to contact Michael and a series of love letters written by the applicant to him.  By this stage, the deceased believed the marriage could not be saved.

15.  The deceased told his family members and friends that he intended to seek a divorce.  He had previously sought legal advice on his matrimonial circumstances.  When the deceased saw his lawyer on 31 October 2003, he stated that he would discuss with the applicant the divorce and the practical arrangements for the children on 2 November 2003.  He also told his lawyer he wanted to have access to the children at weekends only and that they were to stay with the applicant at other times.

16.  The applicant killed the deceased in the master bedroom in the apartment in the evening of 2 November 2003 after the deceased had consumed a spiked milkshake prepared by the applicant.  The deceased consumed the spiked milkshake at about 3.45 pm and then went to the children’s playroom with R.  At 5.15 pm, the applicant, through Min, asked the deceased to return to the apartment.

17.  When Min and the children returned to the apartment later at 6.15 pm, the applicant asked Min to tell the children not to make any noise as the deceased was sleeping.

18.  It was the prosecution case that the applicant killed the deceased in the evening on 2 November 2003 after he returned to the apartment at a time when, according to expert evidence, the drugs in the milkshake was likely to have their peak effect.

19.  The weapon, a lead ornament weighing over 3 kilos and normally kept in the dining room, broke into three parts during the attack and exposed a number of nails on the base-plate which caused puncture wounds to the applicant’s hands.

20.  After killing the deceased, the applicant covered his head wounds with six towels and a plastic bag and placed his body in a sleeping bag and then wrapped it tightly in a carpet with rope and adhesive tapes together with some cushions. 

21.  On 5 November 2003, the third day after the killing, the applicant arranged for the carpet, with the deceased’s body inside, to be removed to a storeroom in the Parkview Complex used by the family.  The deceased’s body was discovered on 7 November 2003 in the storeroom. 

22.  The post-mortem examination revealed that the deceased had suffered at least five separate blows to a small area on the upper right side of his head, likely to be inflicted when he was lying face down and not moving.  Any one of those blows could have been fatal as the deceased’s skull was fractured and driven into his brain.  There were other less fatal wounds to the head.

23.  The absence of injuries on the deceased’s arms or hands indicated that he could not have been trying to protect himself and the prosecution case was that the deceased was either unconscious or his consciousness was impaired at the time of the attack.

24.  The bruises and abrasions on the lower limbs of the deceased were consistent with the suggestion that he had bumped into furniture or doors when his consciousness had been impaired.

25.  Toxicological analysis revealed, in the stomach of the deceased, the presence of sedative and antidepressant drugs, including Stilnox, Amitriptyline, Lorivan and Rohypnol.  Butalbital (a painkiller for the deceased’s back problem) and Amitriptyline were also present in the liver of the deceased.  Rohypnol, also known as date-rape drug, is notorious for being used to induce unconsciousness and amnesia.

26.  The applicant consulted doctors in August and October 2003, complaining of insomnia, as a result of which she was prescribed Rohypnol, Stilnox, Amitriptyline and Lorivan.  She was also prescribed a painkiller.  There was evidence that the applicant did some research on these drugs on the Internet on 20 August 2003.

27.  After killing the deceased, the applicant left the apartment at 2 am on 3 November 2003 and returned nine minutes later.  None of the containers for the drugs dispensed by doctors to the applicant, except that of the painkiller, could be found in the apartment.

28.  It was the prosecution case that the applicant drugged the deceased with the spiked milkshake and when the deceased was incapacitated and laid asleep on the bed, she battered him to death with the lead ornament.  It was also suggested that she left the apartment after midnight to discard some items connected with the killing, including the containers for the sedative drugs.  Following the killing, the applicant tried to conceal what she had done and tried to dispose of the dead body. 

29.  The prosecution detailed the applicant’s activities in the next few days after killing the deceased and suggested that those activities were consistent with a planned murder. 

30.  There was the evidence that the applicant purchased bleach, carpets, furniture, cushions, towels, cardboard boxes, rope, adhesive tapes, bedding materials and peppermint oil.  The rope and adhesive tapes were used to tie up the carpet with the deceased’s body wrapped inside.  The new bedding materials and carpet replaced those which were bloodstained.  Bloodstained items were later recovered from the children’s bedroom.

31.  The applicant concealed the deceased’s death by lying to others, including the police and her father.  She told them the deceased left home after they had a violent argument.  The applicant gave others the impression that the deceased was alive but she was unaware of his whereabouts.  The applicant also lied about certain pain and injuries which she claimed she sustained during the fierce argument on 2 November 2003.

32.  The prosecution said these matters proved that the applicant was conscious of her guilt and that it was a planned murder.

33.  The prosecution further relied on the evidence of Connie and Min to: (1) demonstrate that the applicant’s conduct after the killing was inconsistent with her defence of provocation or diminished responsibility; and (2) refute the applicant’s assertions that the deceased had abused her or the children, was a heavy drinker, and had acted unreasonably.

34.  Connie and Min both said the applicant lied about the injuries on her hands and that she gave instructions with regard to the disposal of the deceased’s body and items linked to the killing.

35.  Contrary to the applicant’s case, Connie and Min were adamant that the deceased was pleasant, kind and friendly, and that he was a loving and caring father.  Connie denied the suggestion that the deceased liked to be in control of the family or that he had been violent towards the children.  She said she did not witness any argument between the applicant and the deceased about his rough handling of the children.

36.  Min also said that the deceased was never drunk and he was not violent to the children or the applicant. She said she had not witnessed any fight between the deceased and the applicant.

37.  The deceased’s colleague and friend, Mr David Noh opined that the deceased was extremely professional in his work and he was just a social drinker.  He was told by the applicant on 3 November 2003 that she and the deceased were having some family issues and that the deceased would go back to the office soon.

38.  A family friend, Ms O’Shea described how she tried to contact the deceased repeatedly after 2 November 2003.  The applicant told Ms O’Shea that she had been in a fight with the deceased and, as a result, had suffered two broken ribs.  She also told Ms O’Shea that she was going to keep the appointment for a cosmetic surgery in San Francisco scheduled to take place in mid-November 2003.  The applicant also assured Ms O’Shea that she was all right.  The prosecution suggested that the applicant could not have suffered any broken rib as she was able to move the carpet wrapping the deceased body.

39.  There was evidence that the applicant contacted Michael every day between 3 and 6 November 2003 and that she had arranged for the delivery of large packing cartons to the apartment and had made available a 150-cubic foot storage space from Links Relocation.  The suggestion was that she was trying to dispose of various items linked to the killing of the deceased.

40.  The applicant appeared to be hiding the death of the deceased from everyone whilst arranging for the disposal of his body.  The prosecution case was that the applicant’s conduct subsequent to the killing was inconsistent with her claim that she killed the deceased under provocation or that she was suffering from an abnormality of mind that would substantially impaired her mental responsibility for the killing.

41.  Put simply, the prosecution suggested that the killing was planned and premeditated.  The applicant shopped for the sedative drugs, administered them on the deceased to render him unconscious and then killed him in a brutal manner.  The prosecution further suggested that after killing the deceased, the applicant embarked on an elaborated scheme designed to conceal what she had done, whilst making arrangements for the disposal of the deceased’s body.  The prosecution argued that the applicant’s conduct showed she could not be suffering from any abnormality of mind that would substantially impair her mental responsibility for the killing.

The Defence Case and Evidence

42.  The defence sought a permanent stay on the ground that the applicant could not receive a fair trial because of the large volume of adverse publicity, the poor mental and physical condition of the applicant as well as the Court of Appeal’s adverse comments about her.  It was predicted that the retrial would further aggravate the applicant’s already poor mental and physical condition.

43.  It was also suggested that it was an affront to the public conscience and/or was oppressive to have a retrial when it was the result of the prosecutorial misconduct or breach of professional duty in the first trial.

44.  At the substantive hearing, the applicant admitted killing the deceased, but raised the defence of provocation and/or diminished responsibility.

45.  In her evidence, the applicant suggested that after E was born, the deceased made it clear he no longer liked her appearance.  She alleged that the deceased was short-tempered and aggressive, and was dominating and violent towards her and the children.  She said the deceased was not concerned about the children’s well-being, and would regularly assault her and force her to have oral and anal sex which hurt her.  She said the deceased was a heavy whisky drinker and a regular cocaine user.

46.  The applicant suggested that the deceased started to abuse her and the children shortly after their relocation to Hong Kong.  The applicant further suggested that the deceased’s conduct had led her to attempt committing suicide and she only stopped when she thought of the children.  The applicant said the deceased’s conduct was so outrageous that she found it necessary on one occasion to put a sleeping pill in his whisky to calm him down to avoid him mistreating her and the children.

47.  The applicant gave a detailed account of what she claimed to be five years of physical and sexual abuse at the hands of the deceased.  She suggested it was the deceased who wanted her to have the cosmetic surgery that was scheduled in mid-November 2003.

48.  The applicant said she did not mention the problem to any of her friends or associates as she thought it was a matter only between the two of them and she always tried to give an impression that her marriage life was wonderful.  She also admitted that she did not tell anyone about her suicide attempts until she was charged with murder.

49.  The applicant admitted falling in love with and becoming intimate to Michael sexually since May 2003. She said she found in him a place of peacefulness and understanding and that she felt safe with a man for the first time.

50.  The applicant visited Dr Fung and Dr Dytham in late August and late October 2003 respectively when she complained of insomnia and she was prescribed with sedative drugs.  Dr Fung prescribed 10 tablets of Stilnox and advised her to take half a tablet per night. 

51.  The applicant said she had conducted, on the computer, a search on some of those drugs because she was contemplating suicide.  She said she had twice tried to commit suicide, once on 4 May 2003 when she was in Vermont and the other time on 29 August 2003 after she had obtained the Stilnox from Dr Fung.  She said she changed her mind when thinking of the children, vomited and felt sick for a few days.

52.  The applicant also mentioned the marriage counselling sessions on 8 and 15 September 2003.  She said the first session was followed by an argument in the taxi on the way home when the deceased urged the driver to drive faster.  When they arrived home the argument continued and the deceased became violent, slamming the applicant into a glass door before subjecting her to forced anal sex.  The session on 15 September 2003 ended with the applicant wanting a divorce and the deceased being thrown out by the counsellor.  The applicant said when they returned to the apartment, the deceased again subjected her to forced anal sex.

53.  The applicant said she did not remember anything that happened on 1 November 2003, but she said she did not, at any stage, plan to kill the deceased. 

54.  The applicant then described what according to her happened on 2 November 2003.  She said when she was washing a glass and a fork in the kitchen at 9 pm, the deceased became angry because she had forgotten to put water in the ice-cube tray.  She then saw the deceased in the doorway of the master bedroom with a baseball bat and she walked towards him.

55.  The applicant said the deceased told her that he had filed for a divorce and that she was not fit to take care of the children as there was something wrong with her.  She said, “He told me it was a done deal.  Like one of his work deals.” The applicant said she remembered an “overwhelming kind of emotional crash” when she saw the deceased had a baseball bat that he was leaning on and then tossing up in the air, and she kept wondering why he was holding it.

56.  The applicant said she then picked up the lead ornament without knowing what she intended to do with it.  She said when the deceased hit her, she dropped the ornament in the bedroom.

57.  According to the applicant, the deceased then pulled her into the bedroom, ripped her pants off and started to have sex with her on the bed by trying to flip her over to be on her stomach.  As she did not want to have anal sex, the applicant kicked him and they both fell onto the floor at the end of the bed.  The deceased then said, “I’m not finished with you yet”, and started grabbing her by the ankles.  The applicant then reached out for the ornament, which was on the floor, and flung it behind her.  She said she hit something, but could not say what it was. 

58.  The deceased then let go of the applicant.  They were on the floor sitting up against the closet.  The deceased was bleeding on the front of his head.  The applicant said she tried to help but he refused and said, “I am going to fucking kill you.” The applicant said she then “just kept on swinging”.  The applicant claimed she had difficulties remembering the events immediately before and after killing the deceased, but said, “I didn’t want to let him go”.

59.  The applicant claimed to have no recollection of leaving the apartment in the early hours on 3 November 2003, or of most of the events in the following few days.  She could not remember how the various drugs found their way into the milkshake and how she tried to dispose of the deceased’s body.

60.  The applicant admitted that it did not make any sense for her to spike the milkshake as she would never have wanted to hurt her family members.  She said she could not recall putting the drugs in the milkshake but accepted that she must have done so.  She said, “It is still something I go over in my mind 100 times a day.  I can’t for the life of me think what I was thinking.”

61.  The applicant said she had put a sleeping pill in the deceased’s whisky in the summer of 2003 to calm him down when he was increasingly violent towards her and the children, and that she must have put drugs in the milkshake on 2 November 2003 for the same reason.  But she said it did not make sense as “I would never hurt my husband”.

62.  In support of the defence of diminished responsibility, the applicant called Drs Desmond Fung, Annabelle Dytham, Calais Chan, CK Wong and Lenore Walker to give evidence.

63.  The applicant saw Dr Fung on 29 August 2003.  She said she had been referred by a marriage counsellor.  The applicant mentioned her marriage problems and complained of not being able to sleep well since E was born.  She said there had been arguments with the deceased which erupted into physical violence.  She told Dr Fung that the deceased had discovered her affair with another man and it made him “very sad” and that their relationship had gone to total non-communication.  The applicant also told Dr Fung that the deceased tried to be a good father, but went away a lot on business. 

64.  The applicant told Dr Fung that violence and excessive drinking were part of the problems experienced by her parents.  She complained of boredom in Hong Kong but did not mention any history of depression or any suicidal attempt on her part.  The applicant did not tell Dr Fung that the deceased had a drinking problem.

65.  The applicant consulted Dr Fung again on 30 October 2003.  She told Dr Fung that Stilnox, previously prescribed, was not effective. She complained that she could not sleep, that her relationship with the deceased had further deteriorated, and that there was talk of a divorce. She told Dr Fung that she regularly exercised in a gym as a means to avoid stress. 

66.  Dr Fung opined that the applicant’s condition appeared to have worsened since 29 August 2003.  Dr Fung then prescribed the applicant with 10 tablets of Stilnox; 20 tablets of Amitriptyline; and 15 tablets of Lorivan.

67.  The applicant did not, however, tell Dr Fung that she had obtained 10 tablets of Rohypnol from Dr Dytham on 23 October 2003.

68.  The applicant first visited Dr Dytham for a Well Woman check on 26 February 2002.  On that occasion, the applicant filled in a questionnaire in which she did not mention any abnormality on her part.  She said she was sexually active and that sexual intercourse was not painful.  The applicant consulted Dr Dytham again on 27 March 2003 when she presented herself as a normal mother who was well organised. The applicant did not make any complaint about forced anal intercourse, feeling of low mood, insomnia or stress.

69.  At the consultation with Dr Dytham on 23 October 2003, the applicant appeared to be very well and was beautifully dressed.  But she complained of feeling terrible, being in low mood, having difficulty sleeping, and also having marital problems.  For the first time, the applicant complained of being assaulted by her husband.  The applicant also complained to Dr Dytham about sexual abuse involving rape.  But the following is the extent of the record that Dr Dytham made of the visit:

“I recall that her main complaint was lack of sleep. Nancy said that she had not slept well for many nights despite using her husband’s sleeping tablets (Ambien). The sleeping tablets did not work. She said that even when in hospital for the delivery of her children, none of the sleeping tablets had worked.”

70.  Likewise, Dr Dytham did not record the applicant’s complaints in her written notes of 4 November 2003, a second consultation that the applicant attended instead of 3 November 2003, the original scheduled date, saying she was not free.  In the notes, it was simply stated that the applicant’s main complaint was lack of sleep and that Ambien (Stilnox), the sleeping tablets found in the deceased’s stomach, was not working.

71.  Dr Dytham was asked by the applicant’s lawyers to provide a complete and full account of the consultation on 23 October 2003.  Dr Dytham did not make any reference to the allegation of sexual abuse involving rape. 

72.  When Dr Dytham gave evidence in the first trial on 12 August 2005, she said the applicant had not complained of rape and that if it were mentioned, “I would have gone straight down that channel, there was no way I would have let that go – that’s a very serious thing.” It would appear that this aspect of Dr Dytham’s evidence was inconsistent with that given by her at the first trial.

73.  On 23 October 2003, Dr Dytham prescribed to the applicant Rohypnol, which was a powerful and dangerous drug because of its side effect and, in particular, its ability to cause a blackout.

74.  Dr Chan, a psychologist, saw the applicant on referral by Dr Wong for the purpose of performing a psychometric assessment of her personality and psychological function in April 2005.  The applicant was found to have clinically significant scores on three personality tests, namely the schizoid scale, the self-defeating scale and the dependent scale.  The applicant also scored abnormal readings in her clinical syndrome tests, namely, the anxiety scale, the dysthymia scale, the major depression scale, the delusional disorder scale and the thought disorder scale.

75.  Dr Chan accepted that the tests alone, which took place 18 months after the killing and based on a short interview of 1½ hours, could not be relied on to establish a particular mental condition.  He also said he had not taken into account the background history of the applicant and accepted that there was the possibility of malingering.   

76.  Dr Wong described the applicant as a victim of sexual, physical and psychological abuse suffered at the hands of the deceased.  He suggested that the five blows to the deceased’s head were consistent with and indicative of a frenzied attack even though they were aimed at and directed towards the same area of the skull.  Dr Wong made no mention in his report of the fact that the applicant had administered the spiked milkshake to the deceased before killing him.

77.  Dr Wong sought to include in his report part of the medical report dated 23 June 2005 of Dr SH Lui (Dr Lui), a psychiatrist of Castle Peak Hospital consulted but not called to give evidence by the prosecution.  Dr Wong set out in his report, among other things, Dr Lui’s conclusion as follows:

“The sum of the evidence is that Mrs Kissel probably was suffering from a depressive disorder in the period leading up to the index offence. Her mood might have coloured the way she perceived her marital problem. At the material time this depression could constitute an abnormality of mind so as to reduce her mental responsibility for the crime.”

78.  The prosecution objected to the inclusion of Dr Lui’s report in Dr Wong’s report in any form on the basis that it was inadmissible, contending that the proper course was for the defence to call Dr Lui. 

79.  Dr Walker first saw the applicant in January 2011 and spent 12 hours with her.  She seemed to have accepted, without question, the applicant’s assertion that she had been the victim of physical, sexual and psychological assaults.  Dr Walker suggested that Connie was not reliable when she described the deceased as a kind and caring person.

80.  Dr Walker opined that the applicant suffered from a Major Depressive Disorder (MDD) episode during the end of 2002 when the family was having a holiday in Whistler and that she was suffering from a condition known as “battered woman syndrome”.  The suggestion was that few battered women would tell other people about the abuse as they felt ashamed as though it was the result of their own fault.  They would also try to stay in the relationship for various reasons. 

81.  Dr Walker said MDD and battered woman syndrome resulted in an abnormal mental functioning of the applicant at the time of the killing as they distorted her judgment and her thinking and made her more fearful of any kind of provocation.  When associated with trauma, the re-experiencing of the trauma would have heightened her fear and such a condition would have substantially diminished the applicant’s responsibility for her actions.

82.  Based on what the applicant had told them, including the suggestion that she had twice attempted to commit suicide, Drs Chan, Wong and Walker suggested that the applicant was suffering from MDD that probably started in 2002.  It was suggested that MDD would have substantially impaired the applicant’s responsibility for the killing and therefore she satisfied the criteria for diminished responsibility.

83.  There was also the suggestion that the applicant was suffering from dissociative amnesia and dissociative fugue to the extent that she would have no idea that she was sleeping with a dead body in the apartment and only came back to reality after speaking to her father on 5 November 2003 and being visited by the police on 6 November 2003.

84.  There was evidence that some of the applicant’s family members had suffered psychiatric problems and it was suggested that the applicant must have a genetic pre-disposition of such a problem.

85.  A few of the applicant’s friends and associates gave evidence to the effect that they had, at various stages, noticed bruises under the applicant’s eyes.  They were told by the applicant that she had sustained other injuries, including rib injuries.  There was also evidence that the deceased had in August 1999 sustained a boxer’s fracture consistent with the suggestion that he had been violent towards the applicant.

86.  However, it was not disputed that the applicant had given different explanations for her visible injuries, but yet never suggesting that the deceased had anything to do with them.  Indeed, the applicant had never complained to any of her friends or associates of any abusive or improper conduct on the part of the deceased.

The Judge’s Decisions and Directions to the Jury

87.  The judge took the view that despite the long lapse of time, the history of the case, the adverse publicity against the applicant as well as her poor physical and mental condition, a fair trial could be ensured.  The judge also took the view that the extent of the publicity and the associating prejudice could be removed by proper and emphatic directions to the jury.  The judge commented, with reference to the judgment of Ginsburg J in Skilling v United States 130 S Ct 2896 (2010) that:

“Prominence does not necessarily produce prejudice, and jurors’ impartiality…does not require ignorance.”

88.  The judge rejected the submissions that the mental condition of the applicant and/or the conduct of the prosecution in the first trial would be sufficient reasons to stop the prosecution of the applicant.

89.  The judge rejected the applicant’s application for a permanent stay, but took additional measures during the trial to accommodate the difficulties faced by the applicant.

90.  The judge ruled that, without calling Dr Lui, the content of his medical report was inadmissible and Dr Wong could not in his report include or refer to Dr Lui’s opinion or report. 

91.  The judge said in his ruling:

“Mr Fitzgerald, for the defence, argues that any expert is entitled to explain what evidence he is relying on and why, and to comment on the conclusions of a fellow professional which may have assisted him in the view to which he came, and who may have concurred in the view to which he came.

But, with respect, this exercise goes beyond that. Dr Wong is seeking to confirm his own opinion, which is not accepted by the prosecution, by reference to another opinion from somebody who is not to be called a witness and whose opinion is also not accepted by the prosecution.

The prosecution cannot realistically challenge Dr Lui’s opinion through Dr Wong.  Moreover, the opinion, which Mr Perry QC does not accept and which he cannot challenge, goes to one of the central issues of this case, namely, diminished responsibility.”

92.  The judge ruled that Dr Lui’s refusal to assist or to talk to the defence per se was not a sufficient reason to render his opinion admissible.  The judge indicated he was prepared to secure Dr Lui’s attendance so that the defence might at least interview him, which offer the defence did not take up.

93.  At the conclusion of the evidence, the judge commenced his summing up to the jury by setting out the respective positions of the prosecution and the defence.  He told the jury that:

“The prosecution say that this was a cold-blooded and premeditated killing in which the defendant planned to kill her husband and which was followed in the next few days by a determined and conscious attempt to conceal the crime. By her conduct before, during and after the killing, they say that she fully intended to kill her husband and was fully aware of what she had done. Accordingly, they ask you to find her guilty of murder

…..

The defence say that when the defendant did what she did, the defendant was either provoked by what the deceased said or did to lose her self-control, or she was suffering from diminished responsibility, or both.  Further, they say that her medical condition not only accounts for why she did certain things before the killing but also explains why she acted as she did after the killing.  Accordingly, she has, at the outset of this trial, pleaded guilty to the lesser offence of manslaughter and the defence ask you to find her not guilty of murder but guilty of manslaughter.”

94.  The judge then gave extremely detailed directions to the jury, both on questions of law and fact.  The judge reviewed the evidence, in particular that of the doctors, and counsel’s submissions in length to the jury.

95.  The judge detailed the applicant’s evidence and the defence case on provocation and diminished responsibility. The judge had rightly directed the jury on the burden and standard of proof in respect of those issues.  The entire summing up was comprehensive, fair and correct.

Grounds of Appeal

96.  Mr Fitzgerald QC suggests that the judge was wrong not to have ordered a permanent stay of proceedings.  He argues that the judge should not have disallowed Dr Wong from referring to Dr Lui’s opinion and from giving evidence that Dr Lui shared his view on the mental condition of the applicant at the time of the killing.  In addition, Mr Fitzgerald QC puts forward the following grounds of appeal:

(i) there was a demonstrable flaw in the prosecution case and the conviction against the applicant based on such a case is unsafe;

(ii) that the jury was wrong to reject the defence of diminished responsibility when the unanimous evidence of three psychiatrists and one psychologist supported such a defence and the prosecution had adduced no expert evidence to contradict the defence experts; and

(iii) on the facts of the case and in particular the psychiatric evidence, there is a lurking doubt as to the correctness of the conviction against the applicant.

97.  In the perfected grounds of appeal, Mr Fitzgerald QC makes no complaint in connection with the judge’s summing up to the jury either on law or on facts.  However, in his submissions, he suggests, as a part of the argument that the conviction is unsafe and there is a lurking doubt, that the judge had not emphasized enough to the jury the unanimity of the defence experts’ evidence on the issue of diminished responsibility and that such evidence was not contradicted by any prosecution expert.

98.  Mr Fitzgerald QC emphasizes that the widespread public dissemination of the case and of the inadmissible evidence and the continuing presence in the media of the prejudicial material about the applicant would cause prejudice that could not be removed by the passage of time or be cured by judicial direction.  He also suggests it was oppressive to put the applicant through a retrial after a lengthy first trial and appeal process, particularly when she was prepared to plead guilty to manslaughter on the ground of diminished responsibility.  Heavy reliance is placed on the poor physical and mental condition of the applicant.

99.  Mr Fitzgerald QC submits that the prosecution case, namely, the applicant killed the deceased when he was on the bed incapacitated by drugs, was unreliable and unsustainable.  He suggests that the prosecution experts’ evidence did not support this and therefore the foundation of the prosecution case did not exist.

100.  Mr Fitzgerald QC suggests there was no conceivable motive for the applicant to plan to kill the deceased and she only killed the deceased in a frenzied attack provoked by threats and the deceased’s physical assault on her.

101.  Mr Fitzgerald QC argues that Dr Wong was entitled to take into account Dr Lui’s opinion to reach his conclusion that the applicant was suffering from a depressive disorder and that this was a case of diminished responsibility.  He emphasizes that an expert is entitled to draw on the works of others to arrive at his conclusion and further to furnish the court with those particulars so that his reliability can be fairly assessed.  It is further said that the reference to Dr Lui’s report is admissible as a past diagnosis of the applicant and also as a part of Dr Wong’s reasoning or methodology. 

102.  Mr Fitzgerald QC emphasizes that the jury was entitled to know, when assessing Dr Wong’s evidence, that the prosecution had engaged Dr Lui whose report supported Dr Wong’s opinion and that the prosecution had chosen not to call Dr Lui to give evidence.

103.  Mr Fitzgerald QC suggests that as doctors, who had examined the applicant before and after the killing, were unanimous that the applicant was suffering from depression and there was no prosecution evidence to contradict them, the prosecution’s invitation to the jury to reject the doctors’ evidence was unjust and unfair, and the jury’s rejection of the defence of diminished responsibility was unreasonable. 

104.  It is submitted as a point of law that the prosecution must adduce expert evidence when it is putting forward a positive case that the applicant did not suffer from mental abnormality.  As the prosecution had not called expert evidence, there was a flaw in the trial process. 

105.  Mr Fitzgerald QC further suggests that the prosecution was wrong to have invited the jury to take a dismissive and unduly sceptical approach to the value of the psychiatry evidence adduced by the defence.   He argues that the prosecution’s invitation to the jury to reject the evidence of the defence experts tantamount to inviting it to become its own expert and that it was wrong for the jury to disregard the expert evidence, particularly when such evidence was not contradicted or seriously challenged.

106.  Lastly, Mr Fitzgerald QC submits that the conviction is unsafe and that there is a lurking doubt because it is against the weight of the evidence.  He suggests that we should, in line with the approach of the Canadian Supreme Court in R v Molodowic [2000] 1 SCR 420, examine the evidence and conclude that the guilty verdict, in all the circumstances, is unreasonable and therefore unsafe.

107.  Mr Fitzgerald QC relies on what he considers to be the flawed, untenable and unproven theory that the deceased was killed whilst lying asleep on the bed and incapacitated by drugs.  He also relies on the unanimous expert evidence that the applicant suffered from a depressive disorder that had significantly impaired her power of reasoning, affected her emotions and handicapped her power of self-control such that the prosecution case that the applicant did not suffer from any mental illness was unsustainable.

108.  In further support of his lurking doubt argument, Mr Fitzgerald QC relies on the fact that the applicant gave evidence under great difficulties, both physically and mentally.  He points out that the jury had not seen some of the prosecution witnesses, including Connie and Ms O’Shea, give evidence.

109.  Mr Fitzgerald QC concludes that the applicant’s conviction of murder is not a safe one and invites the court to substitute it with a conviction for manslaughter.

Discussion

110.  For the purpose of this application, we have decided to proceed on the basis of the substantive merits of the case and ignore the delay in the application.  Mr Perry QC does not object to such an approach.

The Application for a Permanent Stay of Proceedings

111.  It was unfortunate that the case had attracted so much publicity, both locally and internationally, in the course of the first trial as well as the subsequent appeals.  There were two books about the case published in 2007 and 2008 respectively. 

112.  It was even more unfortunate that the media coverage of the case and the books both contained prejudicial comments about the applicant, emphasizing the use of a laced milkshake with the suggestion that the applicant, encouraged by Michael, had intended to poison the deceased and when that failed, beat the deceased to death and concocted the “battered wife” defence. 

113.  In a society that cherishes freedom of expression and freedom of the press, the publicity attracted by the case because of its nature and the identities of its protagonists could not be avoided.  As Ribeiro PJ observed in HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133 at p 189E to G:

“…In a society where the press is free it is inevitable that the reporting of crime will, in some sections of the media, be lurid and sensationalist, sometimes even at the risk of punishment for contempt. The more heinous or shocking a particular crime, the more it is likely to be given notoriety and to receive potentially prejudicial reporting. Jurors will therefore almost certainly have been exposed to some degree to such media coverage, prejudicial to the accused. Plainly, it is not in the public interest to permit this in itself to abort the prosecution of a person accused of such serious crimes.”

114.  The judge, in the exercise of his discretion not to order a permanent stay, was fully aware of the situation.  He had listed all the media coverage of the case adverse to the applicant in his judgment delivered on 19 November 2010 (HKSAR v Kissel (Stay: Media) [2011] 3 HKLRD 1).  The judge had carefully examined the facts of the case and the relevant principles of law before concluding that the application for a permanent stay should be dismissed. 

115.  In our system of the administration of justice, the court must act on the assumption that the jury will act in good faith, on the evidence and in accordance with the directions of the judge.  “[T]he entire system of trial by jury is based upon the assumption that the jury will follow the instructions which they receive from the trial judgeand that they will return a true verdict in accordance with the evidence.” (per Lord Hope of Craighead in Montgomery v HM Advocate [2003] 1 AC 641 at 674B) “Juries follow the directions which the judge will give them to focus exclusively on the evidence and to ignore anything they may have heard or read out of court.” (per Lord Phillips CJ in R v Abu Hamza [2007] QB 659 at 684E).

116.  The court, while accepting that jurors’ minds may have been subconsciously contaminated, is also entitled to assume that jurors will keep to the oath that each of them has taken, namely: “I swear by Almighty God that I will give a true verdict in this case according to the evidence”.  As Mason CJ noted in The Queen v Glennon (1992) 173 CLR 592 at p 603:

“The possibility that a juror might acquire irrelevant and prejudiced information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.”

117.  Jurors, just like other people in Hong Kong, are exposed to numerous media, be it television, radio, newspapers, magazines, the Internet and other forms of publication.  All major events receive widespread media coverage and different media may report the same event from different perspectives.  To suggest that jurors in Hong Kong will be unduly affected by media reporting of the case and ignore the oath that they have taken to act according to the evidence is an underestimation of their intelligence.

118.  In Lee Ming Tee & Another (supra), Ribeiro PJ said in no uncertain terms that a permanent stay, leading to the accused being discharged, is exceedingly rare.  His Lordship stated at pp.150C to 151J:

“There are cogent reasons why in principle and in practice such stays are highly exceptional.

In the first place, it is only in very unusual circumstances that a court can properly be satisfied that a fair trial is ‘impossible’. The ‘fairness’ achievable is judged in practical and not absolute terms. As Brennan J pointed out in Jago v District Court of New South Wales (1989) 168 CLR 23 at p.49:

‘If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.’

More importantly, the court’s primary endeavour is to ensure that a fair trial takes place, employing the law’s available resources, and not to abort it on the ground that fairness cannot be attained, save a last resort.  To quote Brennan J again:

‘A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party.’ (Jago v District Court of New South Wales (1989) 168 CLR 23 at p.46)

His Honour continued:

‘Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v The Queen (1989) 63 ALJR 422; 86 ALR 35), adverse revelations in a public inquiry (Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25), absence of competent representation (McInnis v The Queen (1979) 143 CLR 575; MacPherson v The Queen (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court’s control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer. ’ (at p.47)

Secondly, in cases where a fair trial remains possible even though official misconduct may be involved in the bringing of the prosecution, the court does not exercise the jurisdiction to stay proceedings as a means of disciplining the police or prosecuting authorities.  As Lord Lowry put it in R v Horseferry Road Magistrates Court, ex p Bennett [1994] 1 AC 42 (at pp. 74-75):

‘The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct. Accordingly, if the prosecuting authorities have been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the court ought not to stay the proceedings merely “pour encourager les autres”.’

The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial.  For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process.  The instances where such an argument has any prospects of success must necessarily be very rare.

Thirdly, in cases where the ground on which to stay is sought concerns alleged unfairness in the use of particular classes or items of evidence, the courts, for procedural reasons, are extremely reluctant to determine the evidential questions on a stay application.  This is because the fairness of using the evidence may be incapable of evaluation prior to the trial itself.  The impact of such evidence on the fairness of the trial may need to be considered in the context of the evidence as a whole so that the question may best be dealt with as a question of admissibility to be determined by the trial judge and possibly made subject to his residual discretion to exclude the same: R v Hertfordshire County Council, ex p Green Environmental Industries Ltd [2000] 2 AC 412; Clinton v Bradley [2000] NIECA 8 at para. 17.”

119.  In R v Abu Hamza [2007] QB 659, the English Court of Appeal approved the approach of the trial judge in that case as follows (at p.685):

“For what it is worth, this judge’s experience leads him to endorse the conclusion that lawyers are occasionally unwisely dismissive of juries. Almost universally, they approach their task and their oath with conspicuous conscientiousness. They are often unavoidably faced with inadmissible evidence which they must discount, especially in the case of several defendants, and experience strongly suggests that, whilst desirable, it is not necessary for them to be kept wholly ignorant of such evidence in order to be able to reach a careful decision which takes no account of it. Extensive publicity and campaigns against potential defendants are by no means unknown in cases of notoriety. Whilst the law of contempt operates to minimise it, it is not always avoidable, especially where intense public concern arises about a particular crime and a particular defendant before any charge is brought. Jurors are in such cases capable of understanding that comment in the media might or might not be justified and that it is to find out whether it is that is one of their tasks. They are capable of understanding that allegations which have been made may be true or may not be and that they, the jury, are to have the opportunity and responsibility of hearing all the evidence which commentators in the media have not and of deciding whether in fact the allegations are true or not. They are not surprised to be warned not to take at face value what appears in the media, nor are they these days so deferential to politicians as to be incapable of understanding that they should make no assumptions about whether any statements made by such people are justified or not. They are also capable of understanding and habitually apply the direction that they are given about the standard of proof.”

120.  We respectfully adopt the aforesaid approach and would add that if the applicant’s position was that she could not receive a fair trial because of (a) the effect of prejudicial publicity, most of which pre-dated the decision of the Court of Final Appeal in February 2010, and/or (b) her physical and mental condition, she could have objected to a retrial order on those bases which, if accepted by the Court of Final Appeal, the retrial order would not have been made.

121.  Clearly, the judge had adopted the correct approach as set out in Stuurman v HM Advocate [1980] JC 111 at 122, and approved in Montgomery v HM Advocate (supra) and Lee Ming Tee (supra), which is not disputed, namely, “whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it”.

122.  The judge was right, in our view, to conclude as he did that any prejudice to the applicant arising from media coverage and/or comments by the court of the case could be removed by proper and emphatic directions to the jury and to that extent a fair trial could be ensured.

123.  As it transpired, the judge did repeatedly direct the jury and in emphatic terms that they were to base their findings of fact on an objective assessment of the evidence and not to be influenced by any extraneous material.

124.  Mr Fitzgerald QC emphasizes that there had been prosecutorial fault in the first trial and that it was not fair, but oppressive and an affront to put the applicant on trial again.  He also suggests that due to the applicant’s physical and mental state, a fair trial was not possible.

125.  It is not uncommon for convictions to be overturned and re-trial ordered because of what is perceived to be prosecutorial fault.  The importance is that there is no suggestion of malice on the part of the prosecution in the present case.  We do not see any justification in the criticism that putting the applicant on trial again is an affront to the public conscience.

126.  The judge concluded that the prosecutorial conduct at the first trial and the anguish and personal difficulties for the applicant of a retrial did not come anywhere near engaging the power to stop the prosecution.  In our view, the judge was right.

127.  The jury would no doubt take into consideration the applicant’s mental and physical disabilities and the extent to which such disabilities would affect her ability to give evidence in assessing the accuracy and reliability of her evidence.  In the present case, they are not matters which justified a permanent stay of proceedings.

128.  As it turned out, the applicant was fully capable of describing the events leading to the killing of the deceased.  There was in fact no complaint that the applicant was unable to participate fully in the course of the trial.

129.  The judge had rightly pointed out (at para.6 of the judgment refusing the stay application) that “there is also a public interest under the affront limb in bringing serious crimes to trial.”  On the prosecution case, this is a very serious and brutal case of murder.  The fact that the applicant was prepared to plead to manslaughter on the ground of diminished responsibility was not a significant factor in the weighing of the various considerations of policy and justice to determine if there should be a permanent stay of proceedings.

130.  We are in complete agreement with the judge on his decision not to order a permanent stay of proceedings.  A fair trial could be attained.  This is not a case “where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued”.  (See L’ Heureux-Dube J’s observation in R v O’ Connor (1996) 130 DLR (4^th) 235 at p.277B-C, referred to in HKSAR v Lee Ming Tee & Securities and Futures Commission (Intervener) (2003) 6 HKCFAR 336, at p.395).

131.  The judge had properly exercised his discretion.  There is no valid basis upon which we can interfere.

The admissibility of Dr Lui’s opinion

132.  In general, the factual basis for the opinion evidence of an expert must itself be admissible and not hearsay.  It is however recognized 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 recognises 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.  In H v Schering Chemicals Ltd [1983] 1 All ER 849, Bingham J said:

“It is, as I have said, common ground that these articles can be referred to by experts as part of the general corpus of medical knowledge falling within the expertise of an expert in this field. That of course means that an expert who says…, ‘I consider that there is a causal connection between the taking of the drug and the resulting deformity’, can fortify his opinion by referring to learned articles, publications, letters as reinforcing the view to which he has come. In doing so, he can make reference to papers in which a contrary opinion may be expressed but in which figures are set out which he regards as supporting his contention. In such a situation one asks: are the figures and statistics set out in such an articles strictly proved? I think the answer is ‘No’. I think that they are none the less of probative value when referred to and relied on by an expert in the manner in which I have indicated. If an expert refers to the results of research published by a reputable authority in a reputable journal the court would, I think, ordinarily regard those results as supporting inferences fairly to be drawn from them, unless or until a different approach was shown to be proper.”

134.  Professor Rosemary Pattenden observed in her article “Expert Opinion based on Hearsay” [1982] Criminal Law Review 85 at p.93:

“…to some extent all opinion evidence by an expert contains hearsay. Very few experts acquire their specialist skill entirely through first-hand experience. Provided that the hearsay on which the expert relies is of a sufficiently general nature to be regarded as part of the corpus of knowledge with which an expert in his field can be expected to be acquainted, no objection can be taken to his evidence on this ground.”

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. ...”

136.  With respect, Dr Lui’s opinion does not fall into any category that will make it admissible when such evidence was being objected to.  Mr Fitzgerald QC has not been able to refer us to any authority that supports his contention that an expert is entitled to put forward another expert’s opinion to support his own on an issue that is being contested.

137.  Mr Fitzgerald QC emphasizes that it is incumbent upon an expert to provide the court with those matters upon which his opinion is based.  He refers to R v Bowman [2006] Cr App R 3, in which Gage LJ, giving the judgment of the English Court of Appeal, set out guidelines as to what should be included in an expert report.  The following, among others, were said to be necessary inclusions in an expert report (at p.61):

“4. Where there is a range of opinion in the matters dealt with in the report a summary of the range of opinion and the reasons for the opinion given. In this connection any material facts or matters which detract from the expert’s opinions and any points which should fairly be made against any opinion expressed should be set out.

5. Relevant extracts of literature or any other material which might assist the court.”

It is submitted that “the main purpose of Dr Wong’s reference to Dr Lui’s report was not to use it evidentially to prove that the applicant was suffering from diminished responsibility, but as an important factor supporting the cogency and reliability of Dr Wong’s conclusions, and to help to explain some of the basis of Dr Wong’s opinion.”  It is further suggested that an expert is entitled to draw on the works of others in his or her field as part of the process of arriving at a conclusion and to furnish the court with those particulars so that it may fairly assess his or her reliability.  “In such circumstances, the opposing party is often unable to challenge through direct cross-examination the authors of material that have been used to fortify the expert’s opinions.”, Mr Fitzgerald QC submits.  Reference is made to R vBradshaw (1985) 82 Cr App R 79 and Daviev. Edinburgh Magistrates[1953] SC 34.

138.  R v Bradshaw (supra) concerns the admissibility of statement of the defendant to the doctor.  The statement has no hearsay quality as it enters merely as an observed fact forming part of the doctor’s data.  It is important to note the following comments by the Lord Chief Justice (at p.83):

“Although as a concession to the defence doctors are sometimes allowed to base their opinions on what the defendant has told them (i.e. 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, 5^th 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.’”

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 C.L.R 642 at p.648; R v Henry [1977] Qd. R. 204 at p.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.

141.  In Davie v Magistrate of Edinburg (supra), experts were called to give their opinion as to whether some blasting operations had caused damages to dwelling houses.  One expert referred to passages in a scientific pamphlet when giving his opinion.  The pamphlet “Vibrations due to Blasting and their Effects on Building Structures”, was published by a Dr Morris, a “recognized authority on the subject”.  It was held that the expert’s reference to the pamphlet was admissible.  It is important to note that the pamphlet was not published nor made for the purpose of the litigation.   

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.

143.  In Ramsay v Watson (supra), the judge became aware before the expert gave his opinion that no attempt would be made to verify its factual basis.  The High Court of Australia approved the trial judge’s decision to stop the defence from asking the doctor what the workmen had told him on the ground that the defence had no intention of calling the workmen to repeat in court what they had told the doctor.

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.

145.  According to Mr Fitzgerald QC, the findings of Dr Lui that Dr Wong wished to adduce and rely on were:

(a) there was a change in the applicant quite noticeably by late 2002;

(b) there may have been some mistreatment of the applicant by the deceased;

(c) it was not clear whether the mistreatment pre-dated the change in the applicant or vice versa;

(d) the applicant’s mood might have been coloured the way she perceived her marital situation;

(e) the applicant was probably suffering from a depressive disorder; and

(f) the applicant’s responsibility was probably substantially diminished at the time of the killing.

146.  With respect, the suggestion that Dr Lui’s opinion was introduced only for the purpose of supporting the cogency and reliability of Dr Wong’s conclusions and not for the purpose of proving that the applicant was suffering from diminished responsibility is highly artificial. 

147.  However one describes Dr Lui’s opinion, its only value lies in the suggestion that the applicant “was probably suffering from a depressive disorder in the period leading up to the index offence”, a major and critical issue in the trial and a hotly contested one. 

148.  Clearly Dr Lui’s report had the potential of misleading the jury into thinking that it was evidence of the truth of the matters stated in it, particularly when Dr Lui was not going to give evidence.  This, in our view, is wrong in principle and highly objectionable. 

149.  Dr Wong was called as an expert on the issue of diminished responsibility.  It was for him to give his expert opinion on the mental condition of the applicant as he found it.  The value of his opinion as an expert depends on his authority, expertise, experience and qualifications, and above all on the extent to which his evidence carries conviction, but not on the opinion of another expert.  Dr Wong should simply state his findings and the basis for them and not to repeat or echo what another expert might have found.

150.  Although an expert is permitted to treat as a working truth data which he learns from other experts, this must be kept within proper limits and should be confined to studies or tests conducted by others or general works of reference.  The use sought to be put to Dr Lui’s opinion in this case has stretched the limit too far.  We do not believe the case of R v Bowman (supra) assists the applicant.  The range of opinion that Gage LJ was referring to does not extend to the findings or opinions of other experts on the very issue that the expert himself is engaged to express an opinion on, especially when the other experts are not to be called to give evidence and their findings or opinions are disputed. 

151.  We fail to see the relevance of the reason for the prosecution not to call Dr Lui to give evidence. The jury assessed the case on the evidence before them and the reasons for calling or not calling a particular witness was not a matter that they need to take into consideration.  There is also no justification for the complaint that the jury had not been provided with the full picture.

152.  A judge has the duty to ensure a fair trial and a trial has to be fair both to the prosecution and the defence.  The judge had offered to secure Dr Lui’s co-operation with the defence.  The offer was declined.   The defence then sought to introduce, through Dr Wong, the opinion of Dr Lui on a central issue in the case without calling him, so that there was no way the prosecution could have tested his opinion and its foundation. 

153.  Dr Lui’s opinion, as expressed in his report, was ambiguous and speculative and there was no clear basis upon which he formed his opinion.  Dr Lui’s assessment of the applicant’s condition was based on what she had told him, including her allegations that she had been subjected to years of physical and sexual abuse and that the deceased was trying to attack her with a baseball bat after he had attempted to have anal sex against her wish.  Dr Lui’s report also referred to the applicant’s allegations that the deceased “drank heavily, 3 to 6 glasses of Scotch every night”, and that “he also used cocaine, even in Hong Kong”. 

154.  According to Dr Lui, the applicant mentioned a suicide attempt in May 2003 in Vermont, but she had not mentioned her extra-marital affair with Michael.  It is doubtful whether the applicant had been entirely frank with Dr Lui.

155.  Indeed, Dr Lui prefaced his opinion by the following remark:

“Based on the above examination, which was incomplete, and necessarily the documents available to me, I have come to the following views.”

156.  It would be difficult to tell what impact Dr Lui’s opinion would have on the jury.  Without Dr Lui giving evidence, the prosecution could not properly test his qualification or his opinion and a fair trial could not be ensured. 

157.  We wish to conclude the discussion on this issue by referring to the following passage in Phipson on Evidence 17^th ed. para.33-61:

“The principle that evidence is given orally remains fundamental to the English criminal trial; and it is submitted that in general expert evidence should not be admitted if the expert is available to give evidence and be cross-examined unless either the expert attends to give oral evidence or the parties agree that he should not. This should be so whether the evidence is tendered on behalf of the Crown or the defence.”

Although this was said in the context of the Court’s discretion to admit hearsay expert evidence in criminal trials under s.30 of the Criminal Justice Act 1988[1], we consider the statement should apply with equal force in this jurisdiction.

Was the prosecution case fundamentally flawed?

158.  We do not agree with Mr Fitzgerald QC that there was a demonstrable flaw in the prosecution case.   

159.  The prosecution suggested that the applicant had planned to kill the deceased by rendering him unconscious with the spiked milkshake and then killed him whilst he was incapacitated.  There was, in our view, clear evidence that the jury could rely on to come to that conclusion.

160.  There was no dispute that the applicant did prepare the spiked milkshake for the deceased’s consumption, claiming that it was a secret recipe.  There was also no dispute that different sedative drugs, including the powerful Rohypnol were found in the stomach of the deceased, drugs that the applicant had collected during her repeated visits to the doctors claiming that she suffered from insomnia. 

161.  The applicant told Min to ask the deceased to return to the apartment where she would be alone with him.  When Min returned to the apartment with the children shortly after 6 pm, she told Min to tell the children not to be noisy as the deceased was sleeping.  When the applicant later spoke to Mrs Tanzer at 6.40 pm, she sounded normal and did not reveal the fact that she had given the deceased and Mr Tanzer some spiked milkshake.

162.  After killing the deceased, the applicant spent time cleaning the bedroom.  She discarded or attempted to discard some heavily blood-stained bedding and on 3 and 4 November 2003 bought some new items.  She also removed the heavily blood-stained footboard of the bed after the killing.

163.  While the experts were not able to determine the amount of drugs consumed by the deceased nor the degree of his incapacitation as the effect of the drugs on different person could be different, the effect of the spiked milkshake, according to Mr Tanzer, was that it had rendered him semi-conscious although he did not remain asleep for the whole of that evening.

164.  Mr Tanzer also said he was sleepy, tired and disorientated after consuming the milkshake and that he was blacked out or asleep in the evening.  He woke up at about 7 pm to have dinner when he was still sleepy and uncoordinated. He then went to bed again, having uncharacteristically consumed a huge quantity of ice-cream.  Mr Tanzer said he slept soundly and when he woke up the following morning, he was still disorientated and could not remember what had happened after returning home the previous afternoon.  Mr Tanzer described it as a little bit like amnesia. 

165.  Mrs Tanzer confirmed what her husband had said.  She said Mr Tanzer’s face was red, and that he was complaining about feeling very sleepy.  She said she was so concerned about her husband’s condition that she kept watching over him.  She thought he was seriously ill and was in fear he might have had a stroke.

166.  Mr David Noh, who spoke to the deceased at about 5 pm on 2 November 2003, said the deceased sounded very sleepy and did not make much sense in what he said.  The deceased also missed an important telephone conference scheduled at 7.30 pm the same evening. 

167.  The forensic evidence suggests that the five fatal blows to the deceased’s head were concentrated in a small area on the upper lift side of his head, likely to be inflicted when he was lying face down and was not moving.  The beddings near the bed-end were heavily stained with the deceased’s blood. 

168.  The bruises and abrasions on the lower limbs of the deceased are consistent with the suggestion that he had bumped into furniture or doors when his consciousness had been impaired. The absence of injuries on his arms or hands indicates that he could not have been trying to protect himself.

169.  The applicant did not sustain any injury on her person that is supportive of a struggle or fight between her and the deceased.  The injuries she had on her knees are consistent with the attempt to move a heavy carpet on the floor.

170.  In our view, the evidence, as a whole, is consistent with the deceased being attacked and killed when he was either unconscious or when his consciousness was impaired.  The jury was entitled to draw such an irresistible inference.

171.  Mr Fitzgerald QC emphasizes that according to Dr Jason Lun Tze-shan (Dr Lun), the blood pattern expert, the bloodspots on the wall, on a picture 160 centimetres from the floor and on the bottom of a cabinet could all be the result of blood being flung during the attack. It was further emphasized that Dr Lun had agreed to the preposition that the presence of blood spots on the bedcover hanging over the end of the bed and on the cabinet with the television on top suggested that the deceased was on the floor in the gap between that chest and the bed when the blows were struck. 

172.  Given Dr Lun’s evidence that the bloodstain pattern was more consistent with an attack on the floor than on the bed, Mr Fitzgerald QC argues that the killing of the deceased was not premeditated but provoked and took place after a struggle that landed both the deceased and the applicant on the floor.  Mr Fitzgerald QC therefore argues that Dr Lun’s evidence had completely destroyed the prosecution case.

173.  It is important to bear in mind that Dr Lun’s evidence is one of the many pieces of evidence on which inference can be drawn as to the circumstances in which the deceased was attacked and killed.   Although Dr Lun agreed that it was more likely that the deceased was struck while on the floor rather than on the bed, he also said that it was possible that the deceased was attacked when he was on the bed.  Importantly, Dr Lun opined that there was no struggle between the attacker and the deceased because obvious contact blood pattern was absent and that the deceased had not moved during the attack.  Dr Lun concluded that the deceased was attacked at a position close to the end of the bed when he was in a low position.

174.  The bloodstain was concentrated in the area at the end of the bed and part of the beddings at the end of the bed was cut away and was never recovered.  Two heavily bloodstained pillows were recovered from the bedroom of E and J. 

175.  We agree with Mr Perry QC that the evidence on the distribution of some of the deceased’s blood in the area at the foot of the bed (relied upon as evidence to show that the deceased was killed when he was lying on the floor) has to be approached with some degree of caution.

176.  It has to be remembered that the examination by Dr Lun only took place on 8 November 2003, by which time the applicant had spent several days cleaning the scene of the killing and disposing of bloodstained items.  The deceased’s dead body would have been moved when the applicant put it in a sleeping bag, wrapped it in the large carpet and tied it with rope and adhesive tapes.

177.  Further, however the prosecution had painted its case, the jury was not bound by it.  It was for them to decide all matters of fact on the evidence before them.  The jury made their decision not by considering the evidence in isolation, but in the light of the whole evidence and they can draw inference from a combination of facts: Chamberlain v. R 51 ALR 225, at p.237.  As noted above, the position of the deceased when he was attacked and killed is only one aspect of the evidence. 

178.  The critical aspect of the case is not so much whether the deceased was lying on the bed or on the floor when he was fatally attacked.  The more important issue is whether the deceased was incapacitated by the spiked milkshake when he was being attacked.  If he was, the defence of provocation will fall away.

179.  On the entirety of the evidence, we are not persuaded that Dr Lun’s evidence was inconsistent with the suggestion that the applicant killed the deceased with the lead ornament when he was incapacitated and was lying on the bed.  Dr Lun’s evidence that the deceased was more likely to have been struck on the floor rather than on the bed does not constitute a fundamental flaw in the prosecution case against the applicant.  Neither does it lead to the conclusion that the verdict reached by the jury is unsafe.

The unanimity of psychiatric evidence

180.  Mr Fitzgerald QC submits there was an unanimity of psychiatric evidence in support of the defence of diminished responsibility and the jury’s rejection of the evidence and the defence was unreasonable.

181.  Experts give evidence and do not decide the issue.  The questions of whether: (i) the applicant was suffering from an abnormality of mind; (ii) the abnormality of mind was induced by disease, namely MDD; and (iii) her mental responsibility was thereby substantially impaired, were questions for the jury to decide on the evidence. 

182.  It is for the jury and not for the medical men of whatever eminence to determine those issues.  This Court has said time and again that it will not usurp the functions of the jury, though it may by virtue of section 83(1) of the Criminal Procedure Ordinance, Cap 221 allow an appeal if it thinks that the conviction should be set aside on the ground that the verdict is in the circumstances of the case unsafe and unsatisfactory.

183.  We accept that a jury may not disregard scientific evidence when the only evidence on a particular question dictates one answer and only a scientist would be qualified to answer that question.  We also accept that unchallenged expert evidence must not be capriciously rejected.  (See Anderson v R [1972] AC 100 and Taylor v R [1978] 22 ALR 599).

184.  However, the principle only applies when the expert evidence is unchallenged, one-way, and not inconsistent with other evidence in the case and the circumstances relevant to the issue.

185.  In R v Bailey (1978) 66 Cr App R 31, one of the cases relied on by Mr Fitzgerald QC, the accused who faced a charge of murder, called expert evidence to prove diminished responsibility.  The prosecution did not call any rebuttal evidence.   The jury’s conviction of murder was quashed on the ground that they were bound to act on evidence and not on their intuitions.  Lord Parker CJ, in delivering the judgment of the court, said (at p.32):

“This Court has said on many occasions that of course juries are not bound by what the medical witnesses say, but at the same time they must act on the evidence, and if there is nothing before them, no facts and no circumstances shown before them which throw doubt on the medical evidence, then that is all that they are left with, and the jury, in those circumstances, must accept it.”

186.  In R v Matheson [1958] 2 All E R 87 at p.89, Lord Goddard CJ made a similar point:

“Three medical men were called by the defence, …; all three of experience in matters relating to mental health. Cross-examination was directed only to the elucidation of some points in their evidence, but the prosecution did not challenge the opinions they had formed and all three had personally examined the appellant. … They were all satisfied that his mind was so abnormal as substantially to impair his mental responsibility. … It was clearly enough to shift the burden of proof thrown on the defence by the section yet no medical evidence was given by the prosecution in rebuttal.

What then were the facts or circumstances which would justify a jury in coming to a conclusion contrary to the unchallenged evidence of these gentlemen?  While it has often been emphasized, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence.  If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not, and indeed could not, disturb their verdict, but if the doctors’ evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be ‘a true verdict in accordance with the evidence’.”

187.  The established principle is that if the expert evidence is challenged and if there are facts and circumstances which throw doubt on the expert evidence, then the jury would be entitled to reject the expert evidence even when there is no evidence from the other side to rebut it.  As Lord Keith of Kinkel said in Walton v R [1978] AC 788 at p.793:

“These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised that the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence. As was pointed out by Lord Parker CJ in R v Byrne [1960] 2 QB 396, 404, what the jury are essentially seeking to ascertain is whether at the time of the killing the defendant was suffering from a state of mind bordering on but not amounting to insanity. That task is to be approached in a broad common sense way.”

188.  In the present case, the prosecution clearly challenged the doctors’ evidence supporting the defence of diminished responsibility and there were facts and/or circumstances which justified the jury’s rejection of the experts’ opinion and hence the defence of diminished responsibility.

189.  The prosecution pointed to the conduct of the applicant and the lies she told after killing the deceased.  The prosecution challenged the applicant’s description of the deceased’s temperament and adduced evidence to support its case.  The prosecution emphasized that before the killing took place, the applicant had obtained from different doctors large quantities of sedative drugs, having made internet searches for “sleeping pills, overdose on sleeping pills, medications causing heart attack drug overdose”.

190.  The applicant consulted Dr Fung on 29 August 2003 complaining about insomnia and she was prescribed with 10 Stilnox tablets, half a tablet to be taken each night.  The applicant claimed to have taken all 10 tablets of Stilnox in an attempt to commit suicide.

191.  When she saw Dr Fung again on 30 October 2003, she again wanted something to help her sleep, saying that Stilnox did not work without revealing that she had earlier been prescribed with Rohypnol by another doctor.  Dr Fung duly prescribed to her 10 tablets of Stilnox, 20 tablets of Amitriptyline and 15 tablets of Lorivan.

192.  On the third occasion the applicant consulted Dr Dytham, she complained of insomnia and was prescribed a course of 10 tablets of Rohypnol.  When the applicant saw Dr Dytham again on 28 October 2003, she indicated she was sleeping and feeling better.  She however did not inform Dr Dytham that she had been prescribed Stilnox and other drugs by Dr Fung.

193.  The applicant prepared the milkshake laced with Stilnox, Rohypnol, Amitriptyline and Lorivan for the deceased’s consumption.  The applicant was able to remember and describe the events on 2 November 2003, but nothing about the circumstances in which she provided the deceased with the spiked milkshake and her brief departure from home shortly after the killing.

194.  In the days that followed, the applicant purchased cleaning items, new bedding and carpet, cleaned the bedroom and made arrangements for disposing the deceased’s body and articles connected to his killing.  The containers for the sedative drugs she used to spike the milkshake were nowhere to be found. 

195.  In the meantime, the applicant lied to others about her injuries and the whereabouts of the deceased.  She also maintained daily telephone contact with Michael.

196.  The applicant claimed not to have any memory or recollection of any of those matters.  It was open to the jury to reject her explanation and conclude that she could have no believable explanation for what she had done.

197.  As rightly pointed out by Mr Perry QC, the opinions expressed by Drs Chan, Wong and Walker were premised on the basis that the applicant was acting in good faith and that she had given an accurate account of the relevant events.  However, many of the matters that the applicant told the doctors were proved to be untrue.  In returning a verdict of murder, the jury had clearly rejected the applicant’s evidence and the foundation of the opinion expressed by Drs Chan, Wong and Walker was gone.

198.  Further, both Connie and Min contradicted the applicant’s assertion that the deceased was violent to her and to the children, and that the deceased was a heavy drinker and a cocaine abuser.

199.  The applicant’s account that she had attempted to commit suicide on two occasions was entirely unsupported and inconsistent with the other evidence.  There was clear evidence that in the months leading to the killing of the deceased, she was actively participating in various social and other events, some of which were connected to the children’s school. She was in close contact with Michael and was planning to visit San Francisco to undergo cosmetic surgery.

200.  As Mr Perry QC points out, the applicant continued to lead a busy social life and her work schedule was hectic in October 2003.  Min’s evidence was that right up until the deceased was killed, the applicant was very involved in the activities of the children’s school, and was at the school on an “almost daily basis”.  The applicant was busy with her own business with commitments arranged for December 2003.

201.  The applicant’s motive for visiting Drs Fung and Dytham was highly questionable when the sedative drugs she obtained, including the powerful Rohypnol, all found their way to the milkshake that she later prepared for the deceased’s consumption.

202.  The applicant did not summon for help after inflicting the fatal blows to the deceased.  She lied about the disappearance of the deceased and reassured others that she was all right.  She was intending to travel to San Francisco on 16 November 2003 for the scheduled cosmetic surgery. 

203.  The applicant had no injury except the puncture wounds to her hands which were caused by the homicide weapon.  The nature of the fatal blows, the position of the blood marks and their patterns all cast serious doubt on the applicant’s account of how the deceased was killed.  

204.  The deceased, who was 40 years old, 5feet 10inches tall and weighing over 80 kilos, was a much stronger and bigger person than the applicant.  The applicant did not suffer any injury consistent with her case of an attack by the deceased or a struggle with him.  There was also a complete absence of injuries on the deceased’s arms and hands, indicating that he could not have been trying to protect himself when he was being attacked and eventually killed. 

205.  There were clear indications that Drs Wong and Walker were not completely unbiased.  Dr Dytham’s account of the applicant’s complaints of sexual abuse by the deceased did not appear in her notes.  She had denied there were such complaints in the first trial.  None of the doctors had referred to and dealt with the fact that the applicant had prepared and given the laced milkshake to the deceased.  They all seemed to be oblivious of the fact that whatever stress and emotional turmoil that the applicant was suffering might simply be the result of her having killed her husband and the ensuing threat of detection and prosecution.

206.  No doubt, the jury was aware that the defence experts were unanimous in their conclusion that the applicant was suffering from mental disease which would substantially impaired her mental responsibility.  The jury must also be aware that the prosecution disputed this, and that notwithstanding, had not adduced any rebuttal expert evidence.   

207.  However, the jury was not bound by either the prosecution or defence case; instead, they must form their own views on the totality of the evidence before them. On the evidence as a whole, there was ample basis for the jury to reject the applicant’s evidence and her defence of diminished responsibility.

208.  Mr Fitzgerald QC says there is a difference between the prosecution saying that the defence has failed to prove mental disease on one hand, and positively asserting that the accused is not suffering from mental disease on the other hand.  It is submitted that, as a principle of law, where the prosecution is advancing a positive case that the accused is not suffering from mental abnormality, it must adduce expert evidence to substantiate it.  No authority in support of this proposition has been cited to us.  But it is reasoned that since abnormality of the mind is a matter to be determined on expert evidence, such that the defence has to call expert evidence to prove mental disease, it follows that the prosecution must, if it seeks positively to assert a contrary case, do the same, albeit to prove the opposite.

209.  We consider, at least in the circumstances of this case, the distinction between saying that the defence has failed to prove mental disease, and asserting positively that the applicant suffered no such condition at the time of the killing is one without difference.  As has been mentioned, the prosecution maintained that the killing was premeditated and carried out when the deceased was rendered incapacitated.  It refuted the defence case of diminished responsibility and/or provocation by reference to the other evidence in the case.  We do not accept that in order to challenge the defence expert evidence on mental condition, the prosecution must call expert evidence in rebuttal.  The prosecution was entitled to refer the jury to all the evidence in the case and to ask them to conclude that the applicant did not, at the time of the killing, suffer from mental abnormality such that her mental responsibility was substantially impaired.

210.  Mr Fitzgerald QC also complains that the prosecution had invited the jury to take a dismissive and unduly sceptical approach to the value of the defence psychiatry evidence.  Relying on R v Molodowic (supra) and R v Pearce (unreported, CA No.99/3228/Y4), it is submitted that the judge should have given a stronger direction to the jury, drawing their attention to the absence of rebuttal evidence from the prosecution and that mental abnormality was a matter on which psychiatrists were particularly qualified to give an opinion.

211.  R v Molodowic (supra) is a decision of the Canadian Supreme Court.  The accused in that case was tried on a charge of second degree murder for the killing of his grandfather.  He was diagnosed to be suffering from paranoid schizophrenia.  In support of his defence of mental disorder, two psychiatrists were called who both agreed that the accused did not have the capacity to appreciate that his actions were morally wrong.   The prosecution did not call rebuttal evidence but in cross-examination challenged the defence expert. The accused was convicted and his appeal to the Court of Appeal was dismissed. He appealed to the Supreme Court, contending that the verdict was unreasonable[2].  In allowing his appeal, the Supreme Court considered (at para.23) that the Court of Appeal should have cause for concern having regard to the psychiatric and other evidence in the case and “the unjustified skepticism that may be directed at an accused relying on the defence of mental disorder”.

212.  The Supreme Court however approved the trial judge’s direction to the jury that they were not required to accept the evidence of the psychiatrists, but that they had to assess it in light of the totality of the evidence tendered and that they were entitled to reach their own conclusion even if it conflicted with that of the experts (see para.12).  It stated the legal position to be thus (at para.10):

“A proper understanding and weighing of expert opinion often plays a central role in the determination of whether or not an accused should be found not guilty by reason of mental disorder. The absence of a Crown rebuttal expert to contradict an accused’s psychiatric evidence is not in itself sufficient to conclude that a verdict of guilty was unreasonable if that conclusion remained reasonably open to the jury on the totality of the evidence. However, it may be unreasonable for a jury to disregard the expert evidence put before it, particularly where all the experts called were in agreement with each other, when their evidence was ‘uncontradicted and not seriously challenged’ (R v Kelly (1971), 6 C.C.C. (2d) 186 (Ont. C.A.), at p.186), and when there was nothing in the ‘conduct of the commission of the crime which would raise any serious question as to the validity of the psychiatrists’ conclusion’ (Kelly, at p.186).”

213.  Clearly, in the present case, there was an extensive body of evidence that would call into question the validity or reliability of the psychiatric evidence adduced by the defence and there was proper basis for the jury’s verdict.   

214.  R v Pearce (supra) is an exceptional case.  The appellant denied murder but pleaded guilty to manslaughter on the basis of diminished responsibility.  Two psychiatrists were called by the defence.  Both concluded that he was suffering from an abnormality of mind that would substantially impair his mental responsibility.  The jury returned a verdict of murder.  On appeal, the English Court of Appeal quashed the conviction.  The Court was of the view that there was no evidence in the case that could possibly justify the jury in coming to a conclusion other than that the accused’s responsibility was substantially diminished, noting that the matters relied upon by the prosecution had all been considered by the psychiatrists and none of them, either singly or collectively, was inconsistent with the responsibility of the accused for his actions at the material time being substantially diminished (see para.27).  In the very special circumstances of the case, it was said that the trial judge “should, perhaps with hindsight” have directed the jury that the medical evidence was uncontradicted and there was no evidence justifying a different conclusion.

215.  The circumstances in the present case are very different.  It cannot be said that there was no evidence that could justify the jury in concluding that the responsibility of the accused was not substantially impaired.  We do not agree that the judge’s direction to the jury is in any way inadequate.

216.  In short, we are of the view that the applicant can have no legitimate complaint of the jury’s rejection of the defence of diminished responsibility.

The Lurking Doubt

217.  In so far as the “lurking doubt” argument is based on the suggestion that the conviction was against the weight of the psychiatric evidence, the fact that the applicant’s evidence and the defence of diminished responsibility had been properly and safely rejected by the jury would be a complete answer. 

218.  S.83 of the Criminal Procedure Ordinance Cap 221 empowers the Court of Appeal to allow an appeal against conviction if it thinks:

(a) that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law; or

(c) that there was a material irregularity in the course of the trial.

219.  To suggest that there is a lurking doubt is a different way of saying that the conviction is unsafe and unsatisfactory.  (See the judgment of Lord Steyn in Kwong Kin Hung v The Queen [1997] HKLRD 15)

220.  In HKSAR v Chang Che Wei [2012] 2 HKLRD 1151 McWalters J, in delivering the judgment of the Court of Appeal, said (at p.1161):

“The approach an appellate court should take to an invitation to invoke the ‘lurking doubt’ principle was set out by the Court of Appeal in HKSAR v Chau Shu Ho [2008] 5 HKLRD 796 where, after examining a number of authorities, it distilled the following principles from them:

(1) an appellate court should apply the principle with great caution as it does not enjoy the benefit which the jury had of seeing the witnesses and assessing their credibility;

(2) a ‘lurking doubt’ does not mean an insubstantial doubt but a substantial remaining doubt;

(3) determining whether it ‘feels’ there is a lurking doubt the appellant court has regard not just to the evidence but also its instincts and experience; and

(4) where a defendant fails to give evidence it is much less likely that a court will feel there is a lurking doubt.”

221.  How a judge should direct the jury depends on the facts of each case and the nature and extent of the dispute between the parties.  The prosecution case was that it was a planned murder. 

222.  The applicant had an affair with Michael and the deceased was seeking a divorce.  The prosecution evidence suggested that the applicant shopped for sedative drugs, including the powerful Rohynol, from different doctors by claiming to have difficulty sleeping.  The applicant administered a milkshake spiked with the sedative drugs to render the deceased unconscious.  She then repeatedly struck his head with a heavy metal ornament to kill the deceased in a most brutal manner.  After killing the deceased, the applicant tried to cover up what she did.  She lied to others and embarked on an elaborated scheme to conceal the truth and to dispose of the deceased’s body.  The applicant claimed not to be able to remember many of the crucial events which are difficult if not impossible to explain.

223.  Confronted with such strong evidence against her, the applicant claimed that she killed the deceased because she was provoked and was suffering from an abnormality of mind induced by disease and that her mental responsibility for the killing was substantially impaired.   In our view, her account of the circumstances in which she killed the deceased was completely unconvincing.  Her description of her mental condition at or around the time of the killing was contradicted by an extensive body of evidence.

224.  In his lengthy closing submissions to the jury, Mr Fitzgerald QC, just as he did before us, emphasised that the killing of the deceased could have happened on the floor and not on the bed and that the defence experts’ opinion had not been rebutted by any prosecution expert.  Mr Fitzgerald QC repeatedly mentioned to the jury the evidence of Drs Wong and Walker and that “the prosecution have not adduced one single medical expert to contradict the findings of (Drs Wong and Walker)”. 

225.  The jury must therefore be aware of the evidence of the defence experts and the fact that there was no expert evidence from the prosecution to contradict such evidence.  The judge reminded the jury in the following terms:

“The facts of this case are your responsibility. You will wish to take account of the arguments in the very full speeches you had heard from counsel, but you are not bound to accept them. Equally, if in the course of my review of the evidence, I appear to express my views concerning the facts or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them, and if I do not mention something which you think is important, you should have regard to it in any event and give it such weight as you think fit, because when it comes to the facts of this case, it is your judgment alone that counts.”

226.  Clearly it was a question of fact whether the jury accepted the applicant’s evidence and those of her experts that it was a case of provocation and/or diminished responsibility and whether those matters cast doubt on the prosecution case or whether it was a case of planned murder as suggested by the prosecution.  The jury had clearly rejected the defence case and accepted the prosecution case that it was a planned murder. 

227.  In support of his “lurking doubt” argument, Mr Fitzgerald QC puts forward what admittedly is “not one of his best points”, namely, Connie and Ms O’Shea did not attend court to give evidence and their depositions and transcripts of their evidence in the first trial were instead read out to the jury.

228.  We fail to see how the reading of the depositions and transcripts can be the subject matter of a valid complaint or a valid factor supporting the “lurking doubt” argument. 

229.  As pointed out by Mr Perry QC, the reading of depositions and transcripts of the first trial was a matter agreed between the parties.  The editing of some of the passages was also as a result of discussions and agreement between the parties.  A further statement from Ms O’Shea was also read out, no doubt with the consent, if not at the request, of the defence as part of the statement was relied on in support of the defence case and argument.  Connie’s evidence was supported by that of Min whose credibility and reliability would have been carefully scrutinized in the course of her three-day testimony.

230.  Practically all of the points urged upon us had been canvassed before the jury.  Indeed the parties’ detailed and exhaustive submissions to the jury were unparallel.  It is not our task to retry the case as Mr Fitzgerald QC acknowledges and accepts. 

231.  The jury would have considered all the evidence before deciding whether the applicant’s account of the events should be accepted and whether the defence of diminished responsibility and/or provocation had been made out.  Having regard to the totality of the evidence in the case, they were entitled to reach conclusions adverse to the applicant.  They were entitled to conclude as they must have done that this was a case of a planned murder.

232.  We do not share Mr Fitzgerald QC’s submission that there must be, in the well-known words of Lord Widgery CJ, a lurking doubt.

Conclusion

233.  On the evidence, the jury was entitled to resolve the issues in question against the applicant.  In all the circumstances of the case, we are satisfied that the murder conviction against the applicant is neither unsafe nor unsatisfactory.

234.  We grant an extension of time to the applicant to apply for leave to appeal against conviction, but dismiss her application.