HKSAR v. TSUI CHU TIN, JOHN

CACC 433/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 433  OF 2003

(ON APPEAL FROM HCCC 228 of 2001)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 24 September 2003, the appellant, aged 33, was convicted of the murder of Chan Yin-cheung (the deceased) and sentenced to life imprisonment.  He sought leave to appeal against conviction and, as we indicated during the hearing, we shall grant leave.

2.  The appellant, a serving police officer at the time of the events leading up to the killing, had known the deceased since about December 1996 and from March to September 1997 they lived together.  After that time, they continued to see each other but, in January 1998, the deceased told the appellant that she wanted to end their relationship.

3.  The appellant was unable to accept the break-up and thereafter he began stalking the deceased.  He also made numerous telephone calls to her home and office.  This led to complaints being made to the police and, eventually, on 28 June 1998, the appellant was charged with three offences of loitering, “causing (the deceased) reasonably to be concerned for her safety or well-being”, on 14 April, 12 May and 24 June 1998 respectively.  He pleaded not guilty to all the charges at San Po Kong Magistrates’ Court on 29 June 1998 when his trial was set down for hearing on 23 July 1998.  In the face of opposition, he was granted bail on condition that he must not approach or interfere with the deceased.

4.  On 16 July 1998, the appellant purchased a long-bladed knife from a shop in Tsuen Wan.  Later that day, he checked into a hotel in Shatin near the deceased’s residence at Greenwood Garden.

5.  At about 7:00 a.m. on 18 July 1998, the appellant went to see the deceased and met her outside her flat on the first floor.  The appellant’s version to the police of what occurred after this was that he said to the deceased: “Wife, will you let me speak just one more time?”  The deceased ignored him.  The appellant said, “I’ll die in front of you.  I want you to remember me in your whole life.”  The deceased got into the lift and the appellant followed her inside.  After it had reached the ground floor, the appellant followed the deceased into the street where she made a telephone call.  The appellant’s version of events a few hours later was that she said to him: “I am now talking to the Kowloon City District Crime Unit One on the phone”.  She followed this by saying: “You die as soon as you can” which we were informed is a literal translation from a Chinese phrase meaning, in effect, ‘get lost’.   When she said this, the appellant took out his knife and killed the deceased.

6.  The post-mortem examination showed that the deceased had sustained nine cut/stab wounds on her neck and twelve stab/cut wounds to other parts of her body.  Death was caused by the stab wounds to the neck and chest.

7.  The trial with which we are concerned was a considerable time after the killing.  This was in large part due to the fact that it was a re-trial.

Trial issues

8.  The appellant did not testify.  There was little significant dispute between the prosecution’s case and the case presented on behalf of the defence.

9.  Realistically, in a trial where it was an admitted fact that the appellant had unlawfully killed the deceased, only two issues arose for the jury’s consideration.  The first issue was whether the appellant was at the material time, pursuant to section 3 of the Homicide Ordinance, Cap. 339, suffering from such abnormality of mind as substantially impaired his mental responsibility for the act of killing, rendering him not guilty of murder but guilty of manslaughter by virtue of diminished responsibility.  The second issue, pursuant to section 4 of the Homicide Ordinance, was whether the appellant had been provoked to lose his self-control, thus reducing the charge of murder to one of manslaughter by reason of provocation.

Grounds of Appeal

10.  In his perfected grounds of appeal, Mr Sarony, SC, on the appellant’s behalf, raised five grounds of appeal.  Two of these related to the defence of provocation and the remainder concerned diminished responsibility.

(1)  Provocation

11.  Under the first ground of appeal, it was submitted that the “judge failed to direct the jury, adequately or at all, what things done or things said or both together could, in law, amount to provocation”.  Mr Sarony submitted that the “things done or things said” which might have amounted to provocation were to be found recorded in Detective Station Sergeant Yau’s notebook, made only hours after the killing, from about 5:55 p.m. onwards on 18 July 1998 at the Prince of Wales Hospital, and that the judge had failed to draw these words specifically to the jury’s attention.

12.  During the hearing, perhaps prompted by a question from the court, Mr Sarony attempted to widen the ambit of this submission by suggesting that the whole history of events from the initial break-up should have been considered by the jury.  This had not been relied on before and we were not particularly attracted by the argument.  The appellant had forced his unwelcome presence on the deceased in circumstances amounting to what is often referred to as ‘self-induced provocation’, and even based upon the appellant’s version at the time of the killing similar considerations applied.  On any view, a defence of provocation was extremely thin. 

13.  We are informed that the judge, following a discussion with counsel, no doubt out of understandable caution, indicated that he would be leaving provocation to the jury.  Both counsel, when addressing the jury in their final speeches, then briefly touched on provocation although Mr Sarony, in the course of his speech, sensibly indicated that the prime question for the jury’s determination related to diminished responsibility.

14.  Section 4 of the Homicide Ordinance provides as follows:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

15.  The judge followed his directions on the legal approach to be taken by the jury to provocation, which were a model of accuracy, by saying as follows:

“Now, these are all questions for you to decide.  In considering the present case, even if you somehow reject that the defendant had an abnormality of the mind, you should however take into account the defendant's background, personality, the way he perceived close relationships - particularly the relationship with (the deceased) – and the other relevant matters.  You may consider the pressure on him in his circumstances, when he was spending so much effort in trying to win her back and yet she remained uninterested.

Please remember, we are only dealing with the effect of the deceased’s conduct and words towards the defendant; we are not dealing with whether the deceased should or should not have acted in such a way.  As the prosecution pointed out, (the deceased) might be just doing or saying the normal thing in such circumstances.  But in the (context) of provocation, we focus on the effect of those words or conduct on the defendant.  We have an account of what she had said and done in the defendant's statement to the police.  Whether there was anything further said or done by the deceased is really a matter for you to consider, based on all the admissible evidence.”  (Appeal bundle pp. 25-26)

16.  The appellant’s “account” of what the deceased had said and done was a reference to the written record (Exhibit P. 5, translated in Exhibit P. 5a) made by Detective Station Sergeant Yau setting out in full the words used by the appellant after he had been taken to hospital following his arrest.  The appellant’s answers, relevant to this issue, were as follows:

“I went to look for the woman whom I loved most in my life and who was most important to me…I saw her outside the door of her home.  She had not changed and was the same as the time I came to know her…She saw me.  She left home and closed the door.  I talked to her.  I said to her, ‘Wife, will you let me speak just one more time?’ She ignored me.  She pressed the button for the lift.  I went forward and said to her, ‘I’ll die in front of you. (I) want you to remember me in your whole life’.  I followed her into the lift and she and I took the lift together.  Then we descended down to the main lobby.  I looked at her…She walked out to the street and made some phone calls.  Then I said to her, ‘I will die in front of you’.  But the outcome was not like this and was the other way round…”

17.  For a short time thereafter, the questioning had to be suspended because the appellant become emotionally upset.  When the questioning resumed at 6:36 p.m., the appellant made the statement, to which we have referred already, that the deceased told him she was speaking to the police and added: “You die as soon as you can”.  After that, he described how he stabbed the deceased with the knife he had allegedly bought for the purpose of killing himself.  He added that he did not know why he had done this, saying:

“At that time, I suddenly felt it was very bright.  Then I approached her and then stabbed her.  But I don’t know how come the knife would be in my hand.  It was very quiet.  I saw blood all over the floor.  I really don’t know (how many times I stabbed her).  I bought (the knife) for killing myself.”

18.  Mr Sarony’s complaint was that as to the “things done” by the deceased, the fact that the deceased had ignored the appellant was evidence which could have amounted to provocation and that the judge had a duty to point this out to the jury.  Equally, the jury’s attention, he contended, was not drawn to the “things said” by the deceased immediately before the killing and in particular the words: “You die as soon as you can”, a phrase which, as we have said, meant that the appellant should ‘get lost’.

19.  Mr Sarony placed particular emphasis for his submission on a passage appearing in Archbold Hong Kong 2005, at paragraph 20-59 which reads:

“Where the judge does leave provocation to the jury he should point out what evidence might support the existence of the potentially provoking conduct or words and the defendant’s loss of self-control”

This appears to have been a partial summary of a passage taken from the judgment of Stuart-Smith LJ in R. v. Stewart [1996] 1 Cr.App.R. 229 at 237 which states:

“In our judgment, where the judge must, as a matter of law, leave the issue of provocation to the jury, he should indicate to them, unless it is obvious, what evidence might support the conclusion that the appellant lost his self-control.  This is particularly important where counsel has not raised the issue at all.”

In that case, where the English Court of Appeal applied the proviso, a judge had failed to give such assistance to the jury.  However, as Mr Luk, SC, was right to point out on the respondent’s behalf, the complete extract taken from Stewart’s case makes it clear that the jury should have the evidence of provocation pointed out to them “unless it is obvious”.  In his submission, the issue was indeed obvious as all the evidence which might realistically have gone to provocation was contained in the notebook (Exhibit P. 5) copies of which, together with a translation in English, were in the jury’s possession.  It was not a case, as Mr Luk also pointed out, in which the potentially provocative conduct gave rise to any complexity.

20.  Provocation had been raised by Mr Sarony in his final speech albeit, as he candidly accepted, in a manner which was erroneously based in law, after Mr Luk, who prosecuted in the court below, had accepted that the deceased’s behaviour and her words immediately before the killing might have been capable of amounting to provocation.  In such circumstances, it would have been, with respect, a wiser course for the judge to have spelt out the allegedly provocative conduct to the jury rather than leaving the topic, in the passage to which we have referred already, with the words: “We have an account of what she had said and done in the defendant’s statement to the police.  Whether there was anything further said or done by the deceased is really a matter for you to decide based on all the admissible evidence”.

21.  This being said, we are satisfied that this was one of those cases where the nature of the words and conduct allegedly forming the provocation was so obvious that we do not consider that the judge’s failure to repeat the matters which the jury had in writing in their copies of the notebook amounted to a material non-direction.

22.  In the second ground, Mr Sarony complained that inadmissible hearsay was introduced during the closing speech for the prosecution.  We do not need to examine this ground.  During the course of argument, it became apparent that this was a matter of no consequence and could in no sense have affected the outcome of the appeal.

(II)  Diminished responsibility

23.  We can turn now to the principal matters raised in this appeal.  Essentially, it was submitted in the remaining grounds that the jury had retuned an unsafe verdict in that it was inconsistent with a full analysis of the evidence given by two psychiatrists which, in turn, ought to have resulted in a manslaughter verdict by reason of diminished responsibility.

24.  Section 3 of the Homicide Ordinance provides as follows:

“(1)  Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”

25.  Dr Andrew Johns, a forensic psychiatrist and senior lecturer in psychiatry in England, was called on the appellant’s behalf with a view to establishing the defence of diminished responsibility.  He interviewed the appellant on three occasions over a period of two days in December 2002, almost four-and-a-half years after the offence.  In addition, he interviewed the appellant’s sister, a nurse, and reviewed all of the relevant documents relating to the background of the appellant and of the offence.  In Dr Johns’ opinion, the appellant was at the material time suffering from an abnormality of mind, arising from a major depressive disorder, which caused the appellant to have significant difficulty in controlling his behaviour.  Dr Johns’ opinion was that the appellant’s responsibility was substantially impaired.

26.  In rebuttal, the prosecution called Dr C.H. Yuen, Chief of Service of the Department of Forensic Psychiatry at Castle Peak Hospital.

27.  Dr Yuen interviewed the appellant on four occasions.  The first two interviews took place on the fourth day and ninth day respectively after the offence, and the last two interviews were in April 1999.  He was also kept informed of the appellant’s situation by his colleague, Dr Ng, who handled and managed the appellant’s mental problems on a day-to-day basis.  Dr Yuen, like Dr Johns, also interviewed the appellant’s sister and had investigated the relevant background so far as it related to the appellant and to the offence.

28.  Dr Yuen concluded that the appellant was suffering from a major depressive disorder at the material time.  To this extent, the two psychiatrists were in agreement.  However, it was Dr Yuen’s opinion that the attack upon the deceased was not due to depression alone.  The depression had served to aggravate the appellant’s anger and jealousy which was the real cause of the appellant killing the deceased.  Accordingly, Dr Yuen formed the view that the criteria for diminished responsibility had not been fulfilled.

29.  Dr Yuen’s opinion that the appellant’s attack on the deceased was the result of his feelings of anger or jealousy towards her was only qualified late in his evidence when, during cross-examination, he made the important qualification that it was not caused by this factor alone.  In the explanation Dr Yuen gave as to the effect of this qualification, he went on to repeat that he thought the killing was due to anger and jealousy but in saying this, he added:

“… I ask myself three questions to… arrive on this conclusion.

I ask myself, if this person do not have depression, would he have killed?  I mean, could he have killed, that is, just by anger and jealousy?  My answer to this is, ‘Yes’. My second question to myself is, if he is depressed without anger or jealousy ….

… would he kill?  My answer is, ‘No, he would not’. …

My third question to myself is, what’s the effect of his depression on his anger?  Would he be more likely to kill if he is depressed at the same time, in addition to being angry and jealous? …

My answer is, the likelihood is high.”  (Appeal bundle pp. 258-259)

30.  Dr Yuen went on (at page 260) to say that in his opinion the impairment (of the appellant’s mental responsibility) was not substantial but later there followed a dialogue in cross-examination which was in these terms:

“	Q.	Dr Yuen, I would not suggest to you for one minute that the depression can cause everything.  What I do suggest (to) you is that the depression made a significant contribution. [Emphasis added]
	A.	I agree.  I have said that in the first scenario the depression would aggravate the anger and jealousy and make him even more likely to kill. …
	Q.	So the extent to which his ability to function, to control himself, was partly impaired by his depressive (condition).
	A.	I agree.
	Q.	And the extent to which it was impaired was more than trivial.
	A.	Yes, this is the term ‘substantial’ or ‘unsubstantial’ … but this is of course a matter for the jury.
	COURT:	No, I think counsel’s question is this, he is not asking directly whether it’s substantial but he is saying, well, it’s not trivial.  You see the difference here.  You say in your opinion it is.  Can you say at least it’s not trivial?  Although he understands, you’re saying it’s not substantial but he put to you that…
	A.	In anger – his words – I will agree, it is not trivial.” (Appeal bundle pp. 274-275)

31.  Having received these answers, Mr Sarony completed his cross-examination on the point.  It seems that he had in mind what was said in R. v. Lloyd [1967] 1 QB 175 at 178-179, cited in Archbold Hong Kong 2005 at paragraph 20-85, as to the meaning of ‘substantial impairment’ where the English Court of Appeal approved the directions of the trial judge in these terms:

“Fourthly, this word ‘substantial’, members of the jury, I am not going to try to find a parallel for the word ‘substantial’.  You are the judges, but your own common sense will tell you what it means.  This far I will go.  Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether.  At the other end of the scale substantial does not mean trivial or minimal.  It is something in between and Parliament has left it to you … to say on the evidence, was the mental responsibility impaired, and, if so, was it substantially impaired?”

32.  Dr Yuen’s agreement that the depression had made a “significant contribution” which would have made the appellant “even more likely to kill”, that the appellant’s ability to control himself was “partly impaired by his depressive condition” and that his impairment of mind was “not trivial”, were all matters which cried out for further exploration.  Re-examination provided the opportunity for this to be done in an endeavour to enable the jury better to consider, in the light of Dr Yuen’s last answers, the degree to which the appellant’s responsibility of his acts was impaired by the abnormality of mind from which at that time he was undoubtedly suffering.  Unfortunately, however, such exploration as was conducted did not in our opinion go far enough.  The following is what was said:

“	Q.	About the … extent of the defendant’s ability to control himself – whether that was partly impaired by his depression – learned counsel asked you whether the impairment was not trivial.
	A.	Yes.
	Q.	I think your answer was – according to my notes – you said in English words, ‘It is not trivial.’
	A.	Yes.  There’s no implication on the legal criteria of whether it was substantial enough and therefore I …
	COURT:	I’m sorry.  What was the last part, please?
	A.	I’m not referring to the legal criteria of diminished responsibility.
	Q.	What were you referring – what do you mean?
	A.	Well, I mean that it is a factor.  Depression is a factor and it would aggravate the anger and jealousy.
	Q.	Yes.
	A.	But I have no implication as to whether it’s substantial.  I maintain that I did not consider it substantial enough for the charge to change to manslaughter on the basis of diminished responsibility.
	Q.	Do you still have that view?
	A.	Yes.”  (Appeal bundle pp. 280-281)

33.  It was not suggested by Mr Sarony that any of the directions given by the judge were, in themselves, erroneous.  Indeed, he accepted that the judge had from time to time apparently tried to “steer” the jury in the direction of a manslaughter verdict.  This is not repeated by us to suggest any form of criticism.  We can well understand why the judge chose to do so.

34.  Having considered the evidence as it stood at the end of Dr Yuen’s evidence, it is our opinion that, without further exploration or proper investigation in re-examination of the answers he had given in cross-examination, the murder verdict cannot safely stand.  In particular, we bear in mind that this well respected and highly experienced psychiatrist had said that it was “even more likely” that the appellant would kill because of the effect of his depression on his anger and jealousy which were not alone the reasons for this attack, and his agreement that the depression was “not trivial” and made a significant contribution to what occurred.

35.  The appellant was, on any view, suffering from a deteriorating, major depressive disorder which was identified as having set in well before the events on the day of the killing.  We have not, as we have already indicated, overlooked Dr Yuen’s opinion that this impairment of the appellant’s mental responsibility was a secondary consideration to the anger and jealousy the appellant felt towards the deceased.  In this sense, it is apparent that this was a borderline case of diminished responsibility and, as such, was a most serious case of its kind.  Nevertheless, we are unable safely to say on the evidence, as it was finally left to the jury, that the appellant’s responsibility for his acts may not, within the parameters of section 3 of the Homicide Ordinance, have been lessened by his abnormality of mind.  In our judgment, the conviction for murder should be set aside on the basis that in all the circumstances of the case it is unsafe.

36.  Accordingly, we shall substitute a verdict of manslaughter, pursuant to section 83A(2) of the Criminal Procedure Ordinance, Cap. 221, remembering that this was the second trial of the appellant for murder.

37.  Section 83A(2) also makes provision for this court to “pass such sentence in substitution for the sentence passed at the trial”.  This case will, therefore, need to be re-listed for this purpose and meanwhile the appellant will remain in custody.

38.  Prior to the hearing, we shall require an up-to-date report from Dr Yuen, if possible, to cast light on the appellant’s present mental condition and to give a prognosis as to the future risk if and when the appellant is released back into society.  We have in mind particularly the references in Dr Yuen’s report dated 24 April 1999 to the appellant being unable to accept two previous break-ups with girlfriends.  In the first of these cases, the appellant persisted in going to the address and waiting for his ex-girlfriend there.  Even after she had emigrated to Canada, he continued to make long-distance calls to her.  After the second relationship ended, the appellant again made a habit of following his ex-girlfriend after waiting for her at her address over a period of two months leading, eventually, to her resignation from her job in the Police Force.

39.  This report concluded with an opinion that the appellant belonged to the ‘rejected’ type of stalker, such stalkers being “dangerous because there is a high risk that they would assault their targets in revenge for rejection”.

40.  We have noted in Dr Yuen’s later report dated 1 July 1999 that the appellant became “very angry with (him) for what (he) had written in (his April) report and would refuse to cooperate with (him) any more”.  If, therefore, Dr Yuen feels that it is impractical to consider making a report about the appellant’s present mental state, it may be that Dr Ng, who also knows the appellant’s history well, will be able to do so.  In any event, we would be considerably assisted by Dr Yuen’s opinion as to the danger which this appellant may pose if, in the future, he was to form a relationship with another woman.  Dr Yuen’s earlier reports are already before the court and should, of course, be made available to any other psychiatrist who may provide the court with a report.