HKSAR v. LO CHUN SIU

CACC 90/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 90 OF 2013

(ON APPEAL FROM HCCC NO. 249 OF 2012)

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JUDGMENT

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Hon McWalters J (giving the judgment of the Court):

Introduction

1.  The applicant was tried in the High Court before Deputy High Court Judge Wright and a jury on an indictment charging him with the offence of murder, contrary to Common Law and punishable under section 2 of the Offences Against the Person’s Ordinance, Cap 212.  The offence alleged that on 24 June 2009 in Hong Kong he murdered his mother, Madam Kwok Yuk-kuen.  By a unanimous verdict of the jury he was convicted of the offence of murder and sentenced to life imprisonment.  He applies for leave to appeal against both his conviction and his sentence, although in respect of the latter application he is acting in person.

2.  At the hearing of the appeal we reserved our judgment which we said we would hand down at a later date.  This we now do.

Background

3.  The applicant was first tried for this offence before Macrae J (as he then was) and a jury and on 7 October 2010, he was convicted of murder and sentenced to life imprisonment.  The issues at that trial were whether the applicant intended to kill or cause grievous bodily harm to his mother and whether he was provoked into acting as he did.  In that trial no issue of diminished responsibility was raised.  However, the Court of Appeal quashed that conviction after becoming aware from fresh evidence received pursuant to section 83V of the Criminal Procedure Ordinance, Cap 221, that the applicant might have available to him the partial defence of diminished responsibility.

4.  The applicant’s retrial commenced on 19 February 2013 and concluded with the verdict of the jury on 27 February 2013.

The Trial

5.  Prior to his retrial the applicant had offered to plead guilty to the alternative offence of manslaughter by reason of diminished responsibility, pursuant to section 31 of the Homicide Ordinance, Cap 339.  However, this plea was not accepted by the prosecution.

6.  The issues on the retrial were, again, whether it was proved that he had intended to kill his mother or cause her grievous bodily harm and, if so, whether the mother had provoked him into acting as he did and also whether he was acting under diminished responsibility due to attention deficit hyperactivity disorder (“ADHD”) from which he was then suffering.

7.  In respect of the defence of diminished responsibility the prosecution did not dispute that ADHD was an abnormality of the mind which arises from a development defect of the mind or that the applicant was suffering from ADHD at the time of the killing.  What the prosecution did dispute was that the applicant was affected by his ADHD at the time he attacked his mother and that it substantially impaired his mental responsibility for his acts.

The Prosecution Case

8.  On 24 June 2009 the applicant killed his mother at her apartment in Tuen Mun where she lived with her husband, the applicant’s father.  The mother died of multiple stab and cut wounds to the neck.  The applicant was the only child and was aged 25 years at the time of the offence.  The fact that he had attacked his mother with a knife and caused her death was not in dispute and a significant portion of the prosecution evidence was adduced by way of Admitted Facts.  The prosecution, in fact, called only four witnesses to give evidence.  The first witness was the applicant’s father, Mr Lo Kwok-wai; the second witness was a sales lady working in a phone shop in Tuen Mun which the applicant had entered shortly after the killing for the purpose of selling his mother’s mobile telephone; the third witness was a forensic scientist who gave evidence on blood stain pattern analysis and the fourth witness was a forensic pathologist who gave evidence in respect of the autopsy that he conducted on the deceased and of his physical examination of the applicant.  The statements made by the applicant to the police were tendered by agreement.  The statements were in the form of two police notebook records and two video recorded interviews.

The Admitted Facts

9.  The Admitted Facts revealed that the deceased had lived together with her husband at Room B1906, King Wah House, Shan King Estate, Tuen Mun, the address where the killing took place.  The applicant had previously resided there but some time in September 2008 he had been forced by his mother to move out of the residence.  The father was employed as an estate security supervisor at Scenic Garden at Yuen Long and on the day of the killing, 24 June 2009, he left for work at around 5.20 a.m.  He talked with the deceased by telephone at lunch time, around 1.30 p.m.  He called her again after work at around 6.50 p.m. but on this occasion no-one answered the phone.

10.  At around 7.30 p.m. he arrived home and found that the padlock to the iron grille of the entrance to Room B1906 was missing.  The padlock normally used to secure the iron grille was hanging on the handle of the wooden door inside the flat.  When he opened the door and entered the flat he found the television and the air-conditioner were on and the deceased lying unconscious on the floor near the sofa of the sitting room.  Her body was covered in blood.  Mr Lo immediately made a “999” call.  Police officers and an ambulance crew arrived at around 7.42 p.m. and the ambulance officers confirmed that the deceased showed no signs of life.  Multiple lacerations and cut wounds on her face and neck were observed.  She was subsequently sent to the Accident and Emergency Department of Tuen Mun Hospital where she was certified dead on arrival.

11.  The CCTV at King Wah House captured images of the applicant arriving at the main entrance at 16:07:15 hours, leaving a lift at 16:08:42 hours and at the rear staircase 18:24:05 hours.

12.  On 24 June 2009 the applicant accompanied by a female, entered Union Telecom at Shop C2, Lam Kai Building, 1 Kai Man Path, Tuen Mun and sold to the shop a Sony-Ericsson mobile telephone model W910i.

13.  On the evening of 24 June 2009 the applicant and his girlfriend spent the night at the Lai Ho Hourly Hotel and left there at around 7 a.m. on 25 June 2009.  From bags left by the applicant at the rear staircase of the hotel the police recovered one box of adhesive plasters.  The applicant later confirmed that he had bought that box after the killing as he had injured his fingers.

14.  When police searched Room B1906 they found a pink vest with horizontal stripes which had been worn by the applicant when he visited his mother on 24 June 2009.  They also found two Buddha pendants and one packet of cutter blades on a desk in the room.

15.  A search of the area in the vicinity of King Wah House resulted in the discovery of a bloodstained grey vest with a blue rim which belonged to Mr Lo and which had been removed from his flat.  This garment was found five metres from the ground floor level of the rear staircase of Block B of King Wah House.  DNA testing subsequently showed that the blood on this vest came from the applicant.

16.  On 25 June 2009 the body of the deceased was taken to Kwai Chung Public Mortuary.  A forensic pathologist, Dr Chiao Wing-fu conducted an autopsy and determined that the cause of death was profuse haemorrhage from multiple stab and cut wounds to the neck.

17.  When on 25 June 2009 at 9.30 a.m. the applicant attended Kwai Chung Public Mortuary, a police officer noticed adhesive plasters covering his right hand and fingers.  The police officer asked him about the injuries and plasters and the applicant said he was wounded when he and his girlfriend (Ms Chung Wing-sze) tried to snatch a razor from each other whilst he was shaving.  At around 10 a.m. the applicant was arrested for the murder of his mother.  He was then cautioned and after caution the applicant voluntarily responded:

“I understand. I didn’t kill my mom. I am her son, how would I kill her? I only went to give her 2 Thailand Buddha as belated gifts for Father’s Day and Mother’s Day.”

18.  Between 5.16 p.m. and 6.23 p.m. on 25 June 2009 the applicant voluntarily participated in a video recorded interview at Tuen Mun Police Station.

19.  At 7.42 p.m. on the same day the applicant led the police to the locations where he had left his knife, sold the deceased’s mobile telephone, bought adhesive plasters, thrown away the shorts and slippers he wore during the attack and bought the clothes and slippers he was wearing at the time of his arrest.  The assistance he provided to the police was the subject of a second video recorded interview that took place in the early hours of the afternoon of 26 June 2009.

20.  An examination of the phone of Mr Lo, the applicant’s father, revealed that the applicant had sent him three SMS text messages in Chinese.  The details of their transmission and contents are as follows:

(i) At 12.47 a.m. on 16 June 2009: “I will not contact you people any more in the future.  Don’t give us any phone call any more in the future”.

(ii) At 11.54 p.m. on 16 June 2009: “Have you ever eaten rubbish for three days?  In the past you gave me up twice.  Had it not been the case that there were no other alternatives and ‘Ah Sze’ asked me to borrow money from you, I would not have given you a call.  That day, I even did not know (that) you had scolded ‘Ah Sze’.  If my children want to kill me in the future, I will keep him/her staying at my home”.

(iii) At 9.41 a.m. on 17 June 2009: “I will not give you people any trouble in the future.  Everything is over.  Just treat it as I have owed you people in this life.  I will repay you people in the next life.”

21.  The first two messages were sent from the applicant’s phone whilst the third was sent from the phone of Ms Chung Wing-sze, the applicant’s girlfriend.

The oral evidence

22.  The first witness was Mr Lo, the applicant’s father.  He said that the applicant was born in April 1984 and had lived at home until December 2008. The applicant had left school when he was in Form 2 because of disputes with classmates and until he was 18 he simply remained at home.  At age 18 he commenced employment but never remained in any job for very long because he was not able to get along with his colleagues.

23.  In September 2008 the applicant moved out of his parents’ house at the insistence of the deceased.  His relationship with his parents deteriorated further when the applicant became involved with his girlfriend and still further when his girlfriend fell pregnant.

24.  Despite the strained relationship between the applicant and his parents, there were occasions when the applicant would return home and his mother would cook meals for him.  She would also give him $100 ‑ $200 from time to time to top up his Octopus card.

25.  By June 2009 the relationship between the applicant and the deceased worsened because the applicant had stolen the deceased’s mobile telephone and also taken a computer.  The June text messages whose contents were set out in the Admitted Facts were followed by a request to borrow money which PW1 refused.

26.  PW1 then testified about the events of the day of the killing and much of what he said was already in the Admitted Facts.  He did mention that after calling the police and his wife’s sister he checked the deceased’s handbag and found that her Sony-Ericsson mobile telephone valued at $3,000, was missing. There was no sign of the handbag having been ransacked.  He then telephoned the applicant to tell him what had happened to his mother.  He said that the applicant told him that he was working.  A police officer then spoke to the applicant who said he would come back some time after 9 a.m. that night.

27.  PW1 tried to call the applicant at around 10 p.m. that night but was unable to do so.  The following morning he telephoned the applicant and asked him to meet him at Kwai Chung Public Mortuary.  The applicant refused, saying he thought that his father was tricking him.  However, when the applicant’s uncle called him and made the same request he agreed to attend.  PW1 saw the applicant with his girlfriend at the mortuary and noticed that he had plasters on his hand.

28.  In cross-examination PW1 agreed that the applicant occasionally stayed at the parent’s flat on weekends after he had left home in September 2008. He said that these visits sometimes ended in arguments and later in time the arguments occurred more frequently.  The usual cause of arguments between the applicant and the deceased was money and because the deceased disapproved of the applicant’s girlfriend.  She regarded his relationship with her as interfering with him getting a job.

29.  PW1 described his wife as someone who easily lost her temper and easily became frustrated.  She was a domineering person who liked to be in control. He agreed that at times she threw things about the room.  On one occasion, when the applicant was 3-years old, she beat him with a coat-hanger.  He agreed that after the deceased heard the girlfriend was pregnant, she criticised the applicant for not having the money to support the girlfriend, let alone a child as well.

30.  PW1 agreed that the deceased controlled the family finances and that he would hand over his pay packet to her whereupon she would provide him with an allowance from those funds.  She did the same with the applicant when he was employed and in receipt of income.

31.  PW1 provided information on the applicant’s upbringing and his employment.  He said that when the applicant was in primary 3 he was diagnosed as suffering from ADHD and was prescribed medication.  However, he did not react well to it as it made him dull and consequently he found it difficult to absorb what his teachers said.  He continued on medication until primary 6 but his parents stopped the medication in order to assist his performance in secondary school.  Once the applicant stopped taking his medication he began to get angry easily, as he had before he was diagnosed.

32.  In respect of his son’s employment history, PW1 said that his first job was in a bakery, then he enrolled in a government training programme and then he worked for the same security company where PW1 was employed.  He left this job to work for Café de Coral which he subsequently quit to work as a casual worker.  He later moved back to Café de Coral and then returned to being a security guard.  He was fired from this last job after having had a disagreement with his supervisor.  For a while he was on Comprehensive Social Security Assistance (“CSSA”)and thereafter worked for short periods as a courier and a cable TV salesman.  PW1 said the reason why the applicant had so many jobs was because he argued with his colleagues, did not get along well with people, had trouble concentrating and became easily frustrated.

33.  The second witness, PW2, was the shop assistant who purchased from the applicant his mother’s mobile telephone.  She said that at around 6.30 p.m. to 7 p.m. on the day of the killing the applicant offered a gold Sony-Ericsson mobile telephone to her.  She noticed stains on the number pad and navigation button and asked what they were.  The applicant replied they were bloodstains.  She noticed that there was a little blood on the applicant’s right cheek.  She offered the applicant $550 for the phone.  He accepted her offer and she paid him in cash.  It was suggested to this witness, but rejected by her, that it was not the applicant who sold the phone but rather the woman with him.

34.  The third witnesses was Mr Tsui Hon-teng, a forensic scientist who gave evidence of blood spatter analysis.  Essentially, his evidence was of significance in rebutting a claim by the applicant that the deceased had been sitting on the sofa when he had first accidentally stabbed her in the face. PW3 said that he had looked at the blood patterns in order to determine the site of the attack.  He expressed the opinion that according to the blood patterns, the deceased would have been standing at the time she was wounded with the wound that caused the blood spatters.  PW3 also said that force had been used in inflicting the wounds and there were more than one and at least two blows.

35.  The final prosecution witness, PW4, was Dr Chiao, the forensic pathologist who carried out the autopsy on the deceased.  His report was produced as Exhibit P124.  Although he identified fifteen individual and groups of wounds about the deceased’s face and neck, it was open to the jury to conclude there were, in fact, many more individual wounds.  A substantial number of the wounds were found to be travelling in a downward direction.  A long wound across the throat contained within it another penetrating wound. Each wound had been caused by different actions, one a downward movement and the other had been delivered by an upward action.

36.  There was profuse bleeding and the deceased’s death was due to a substantial and rapid loss of blood.  Two cut marks on the jawbone indicated that the injuries were very deep, going through to the bone level.  The wounds were delivered with considerable force with one of them to the deceased’s face fracturing her teeth and another severing the left jugular vein and carotid artery.

37.  Various wounds were found on both the deceased’s upper arms and hands that would have been caused when she tried to defend herself during a very strong struggle before the fatal injuries were inflicted.  He could not say how long that struggle would have lasted.  He also conceded that some of the bruises on her arms could have been inflicted by bumping into things earlier.  During cross-examination, he accepted that the cut wounds occurred in a single episode close to one another in time but he could not estimate that period.  There was no challenge to his evidence.

38.  This concluded the oral evidence adduced by the prosecution.

The video recorded interviews

39.  The two interviews and the applicant’s response after caution at the time of his arrest were all produced by the prosecution.  As the applicant gave evidence we shall not rehearse in any detail the contents of the two interviews but shall only refer to what we regard as salient statements by the applicant.

40.  In the first interview he referred to the deceased telling him to leave home and said that after doing so he at first hated her very much.  He had phoned her twice to ask for permission to return home but she had refused.

41.  In respect of the circumstances of the killing he said he arrived at his parents’ house at around 3.30 p.m., having gone there to give them two Buddha pendants as belated Father’s Day and Mother’s Day gifts.  He went alone and his girlfriend waited for him at a nearby McDonald’s restaurant.  At some stage the conversation turned to the time when the mother drove him away from the house.  The applicant said at counter 154:

“(She) said (that I) believed my girlfriend but not (my) family (members). I started to have a headache. Then, (I) took a multi‑purpose knife, pointed a multi-purpose knife in silver colour (at her) to threaten her. (I) did not know why my headache continued. Afterwards, for no reason, I did not know why (I) stabbed her for no reason.”

42.  He explained that whenever someone talked to him about being forced to leave home he would get a headache (counter 166).  Towards the end of the interview he was again asked about how the attack started and the cause of his headache.  From counter 849 onwards the following exchanges took place:

“849 C: Later … she said one sentence and I started to have a headache.

850 B: Yes.

851 C: She said (that I) preferred believing my girlfriend but not (my) family members.

…

853 C: Then I started to have a headache.

854 B: Yes.

855 C: Then, (I) did not know why (I) took out the knife for no reason and pointed – pointed at her and told her not to say anymore.

856 B: Yes.

857 C: Afterwards, (I) did not now why (I) would become mad for no reason. My foot slipped and (I) stabbed her.

858 B: Well, how long did you suffer from the headache problem? Have (you suffered from it) before?

859 C: That is, if somebody talked with me about Shan King Estate or something about my mother, I would feel painful.

860 B: Why?

861 C: Maybe (I) still remembered the day on which she drove me away.

862 B: Maybe (you) remembered the day on which (you) were driven away. While hearing (your) friends mentioning King Wah House, Shan King Estate, (you) would have a headache?

863 C: Headache.

864 B: Is that right? Apart from the feeling of a headache, er – er – what other feeling did you have?

865 C: No. Headache.

866 B: If (you) felt painful, (had) the feeling of a headache, you er –

867 C:     Twitched.”

43.  And at counter 184, he said:

“Maybe we were in conflict while I talked with her. Afterwards, I took out a multi-purpose knife from my pocket and threatened her by pointing (it) to her. Then, she said ‘you try’. Then I did not know why (I) was driven and pushed by evil spirits and really stabbed (her).”

44.  In describing what happened he used words suggesting a frenzied and out-of-control attack.  He said at counter 230:

“Then I totally lost control of myself.”

And at counter 258:

“She did struggle. She tried to push me away. However, I did not know why (I) seemed mad and cut her neck chaotically.”

He repeatedly described his state of mind when attacking his mother as “(I) became mad” (counter 585); “I totally became mad” (counter 595).

45.  When asked if he knew what he was doing, he said:

“879 C: (I) really did not know.”

But when asked if he acted out of momentary impulse, all he could say was:

“881 C: I preferred the one (who) died was me.”

46.  At counter 270 he described his state of mind after the attack as “very confused”.  He said he stopped attacking her “when I was a bit recalled to myself” (counter 605).  After this he did not cut her again.  He thought of calling 999 to get help for his mother and even went so far as pressing the “9” button three times; but he did not go ahead with the call and could not explain why he did not.  He then went and washed the blood off his body and when he returned it seemed to him that his mother was still moving.

47.  He confirmed that in the attack he cut his thumb and little finger.  He said he used the vest he was wearing to wipe up blood and then he threw it out of the toilet window.  He changed into a new pair of pants and also threw the old pair out of the toilet window.  When he left the flat he was not wearing any upper garment.  He took away his mother’s mobile telephone to sell it and went down to the McDonald’s restaurant to meet his girlfriend.  He then went with her to a shop and sold the mobile telephone for $550.  They then went and bought medicine for the girlfriend and then some clothes for himself.  After changing clothes they went to Langham Place, Mongkok where they sat for a while and at 11.35 p.m. they went to the Lai Ho Hourly Hotel.

48.  He claimed at counter 486 that after the attack it did not occur to him that his mother might be seriously injured and that he had never thought of taking her life.

49.  At counter 493-494 the following question and answer took place between the interviewer (A) and the applicant (C):

“493 A: Did (you) experience that before? That is did … did (you) injure your mother?

494 C: I know my temper … I know (that) I am bad-tempered. However, before … (we) had quarrels at most, that is, in foul language at most.  However, I did not know why I would do that this time, I … [indistinct] I.”

50.  When asked if his relationship with his mother was not very good he said:

“727 C: It was not … it was not … it was not very good.”

51.  In the second video recorded interview the applicant confirmed that he had led the police to different locations where he had thrown away various items and sold the mobile telephone.  He amended the times of his movements on the day of the murder and said he left for Shan King Estate around 3.30 p.m. and arrived there around some time after 4 p.m.  He also identified the Buddha pendants he had brought to the flat as gifts for his parents and the pink vest he was wearing at the time of the murder.

The Defence Case

52.  The applicant testified and called three psychiatrists in support of his defence of diminished responsibility based upon his ADHD condition.

The evidence of the applicant

53.  The applicant said he was the only child of his parents and was roughly 25 years of age at the time of the offence.  He said that he lived with his parents up to September 2008.  He confirmed much of what his father had said of his difficulties in obtaining and keeping a job and when unemployed would receive CSSA.  He spoke of being diagnosed with ADHD in primary school and how the medication he was on made him dull.  He confirmed that when he went to secondary school he ceased taking his medication but when he went off it he became angry easily and lost his temper.

54.  His difficulty in holding down a job was a source of tension between he and his mother.  She would complain when he was unemployed and idling away his time at home playing video games.  He said his mother scolded him very often but that he very seldom quarreled with her.  In September 2008 the deceased warned the applicant that if he lost his job he would have to leave home.  He was fired from his job and so his mother forced him to leave home.

55.  After leaving the family home in September 2008 he said he would return from time to time to visit his parents, mainly his mother.  Initially, in order to lessen the risk of any dispute with his mother becoming heated, he would only return home when his father was present.  Later he found, as he described it, nothing wrong with his mother so he would go there in his father’s absence.  He described her as being “not angry like before” or “not so crazy any more”.

56.  He had known his girlfriend since the end of 2001 and his parents had become aware of his relationship with her in either 2002 or 2003.  His mother did not approve of him having relationships with women generally, and this girlfriend in particular.  In 2008 the girlfriend became pregnant.  She suffers from mid-level early psychosis and needed the applicant to take care of her.  When he was unemployed they used their CSSA to purchase her medication.

57.  His girlfriend did not wish to meet his mother and her only direct contact had been in a telephone call.  This was before Christmas 2008 and ended with the applicant snatching the phone from his girlfriend and telling his mother that if she wanted to scold anyone, she should scold him.

58.  During 2009, with his girlfriend pregnant, the applicant was short of money.  He tried to borrow money from friends and his mother lent him money on five or six occasions.  He never repaid his mother and after he stole her mobile telephone, she refused to lend him money again.

59.  In respect of the events of the day of the murder, he said that he had gone to his mother’s house in order to deliver two Thai Buddha pendants as gifts for Mother’s and Father’s day.  His girlfriend waited in a nearby McDonald’s as he intended to stay with his mother for only a short period of time.

60.  His mother asked him to shower and said she would cook for him.  He did so.  He had with him a small knife which he had bought for self-defence because he had been harassed by triads after trying to borrow money.  He used the knife mainly to open noodle packets.  He said he put the knife on a table whilst he was taking a shower.

61.  After they had eaten, they talked.  He said that he sat on a chair with wheels at the table/computer desk.  This was different from what he had told the police in his video recorded interview where he had said that he and his mother sat side by side on a sofa.

62.  The conversation turned to his girlfriend’s pregnancy and his mother said words to the effect that he could not support himself so how could he raise a child and suggested his girlfriend have an abortion.  He said that was not possible as she was already 3 months pregnant.  They talked further and then the mother accused him of believing his girlfriend and not his own family.  He said that it was then that he started to have a headache and could not recall anything else.  He said he was not sure if what his mother had said was connected with the onset of the headache.

63.  He said he thought he picked up the knife from the table and pointed it at his mother and told her to stop talking.  He described what happened next as follows:

“My foot slipped on one sock on the floor. I slipped. It seemed like the knife cut her mouth. I only know I had gone mad at that time. I just remember this point then I have no memory. I don’t know why I concluded I went mad. I only knew my heart was racing. I really cannot remember.”

64.  He said that when he went to his parents’ flat it never occurred to him to kill his mother.  He thought that his mother’s statement that he believed in the girlfriend rather than the family had not been said by her on previous occasions.

65.  The applicant said he was unable to recall how long he was in the flat and did not notice blood on the floor when he left the flat.  He also said he could not remember what had happened to his pink shirt or to the knife.  When reminded that he had told the police he had thrown the knife away, he said he had been very confused and now had no idea what had happened to it.

66.  He said he recalled receiving a telephone call from his father or uncle who told him something had happened to his mother and that is why he went to the mortuary the day following the murder.  But, he said, prior to receiving that call he had not known anything was wrong with her, but then he watched television and found it to be true.

67.  He said that since being in custody he has been receiving medication which enables him to calm himself, be less impulsive and less prone to getting into a rage.

68.  He accepted that his evidence was less detailed than his video recorded interviews and speculated why that might be so, such as lapse of time, the effect of his current medication and confusion by him whilst in police custody.

69.  In cross-examination he said he could not recall his father asking him to go to the flat and said that although he stabbed his mother he did not know the incident was so serious.  He claimed that on the 24^th he had been working as a relief courier and accepted he had never mentioned this to the police.

70.  He could not recall much about taking his mother’s mobile telephone but he thought that on leaving the flat he had casually taken it along with his own telephone which he had placed on the computer desk.  It also emerged in cross-examination that he had, in fact, stolen his mother’s mobile telephone on two occasions and she was extremely annoyed by this.

71.  In regard to the knife with which he attacked his mother, he said it was 3 inches in length and folded back into the handle.  He was very familiar with it and was able to open the knife with just one hand.

72.  As to his relationship with his parents, he said it was quite bad but that it was with the deceased that he constantly argued.  He said from August 2008 to June 2009 he seldom had contact with his mother.  He said that before 24 June he had persistently asked his mother for money and for financial support.  Yet, he claimed that by June 2009 the relationship was not as tense as previously.  When it was suggested to him that this was not true and in the days before the murder he still hated his parents, he responded that he had never been angry with his father.

73.  He was asked about the headache that he said developed in the course of the conversation with his mother and asked whether he had had them before.  He responded that maybe he had become numb.  When this question was repeated he said that counsel could say so.  He did say that when he had had arguments with his mother in the past, he thought he had had headaches.

74.  He accepted that he had had conversations with this mother before about his girlfriend’s pregnancy but did not know whether this was the first time he had reacted to it.  He accepted that he had arguments with the deceased previously and could have walked away.

75.  He said before the attack he and his mother were sitting on the sofa. He got up and stood next to the computer desk and it was from there that he threatened his mother.  She walked over to him and he slipped on a sock and injured her lip.  The distance between himself and his mother’s face was very short, roughly less than a metre.

76.  When it was suggested to him that he had changed his story from what he had told the police in order to make the cutting appear accidental, his response was that all he knew was that at the time he was not sitting.

77.  When asked how his mother received all the other wounds, he said he really did not know what he was doing at that time.  He also said that he could not now recall how he got the cuts on his own hand.

78.  He was asked why he walked down eighteen flights of stairs from his mother’s flat rather than taking the lift.  He replied that he could not recall but did not think it was to avoid being seen.

79.  He maintained his claim that after leaving the flat, he knew he had injured his mother but it never occurred to him that it was so serious that he could have killed her.  He said he did not know she was dead until he learned of it the following morning.

80.  In re-examination he said he could not answer questions in cross-examination about his mother’s defensive injuries because he could not now recall her resistance.

81.  Finally, he said that after leaving home, he did get a job and whilst employed he had returned to the family home at his father’s invitation on Saturday nights and stayed the night.  On those occasions he was less angry and he found nothing bad about his mother.

The evidence of the psychiatrists

82.  The first of the three psychiatrists was Dr Cheung Hung-kin.  He prepared a report which was given to the jury but only after it had been edited.  In his oral evidence he said that ADHD is now an internationally recognized condition which has three main characteristics.  They are:

(i) attention deficit;

(ii) hyperactivity; and

(iii) impulsivity.

83.  Impulsivity, he said, is a person acting suddenly on the spur of the moment to satisfy an emotional drive or desire without carefully considering the consequences.

84.  ADHD is fairly common in childhood and adolescence and, in fact, must manifest itself before a person turns seven in order to qualify as ADHD.  Most people grow out of it with the symptoms disappearing as they get older, although for 30-40% of sufferers the condition persists into adulthood.  Those adults that suffer from it who continue to function in society show impulsiveness, inattention and a little hyperactivity.  It was his opinion that the applicant was such an adult sufferer.  He emphasized that ADHD could not be cured by medication but its symptoms could be managed by it.  He took the view that the fact it was possible for a person to grow out of the condition demonstrated that it was a developmental issue.

85.  He expressed the opinion that matricide is an uncommon type of murder and usually carried out by persons who are mentally ill.

86.  He emphasized the role that the long-term bad relationship between the applicant and his mother may have played in the commission of the offence.  As ADHD affects social functioning, interpersonal and working relationships, it was his view that the ADHD had been a long‑term contributing factor in the conflict the applicant had with the deceased.  He said that a short-term contribution by ADHD was that of impulsivity which may result from a sudden, acute occurrence of emotion resulting in impulsive acts.  He explained that when the short-term effect is built upon a long-term background the two of them together can lead to sudden behaviour with grave consequences.  He expressed the view that it is possible that nothing would have happened if only one of the two contributions had been present.

87.  He indicated that impulsiveness is, by definition, displayed over a short period of time.  The person acts, he said, without too much thinking. When he has committed the impulsive act, he may then return to his normal self and think and act rationally.  There is no contradiction, therefore, in his opinion, that the applicant appears to have acted rationally after the momentary impulse.  He expressed the view that the applicant would have been suffering symptoms of ADHD as at June 2009 as it is a long-term disease.  When asked whether ADHD overrides the other ordinary functions of the brain, he said that it disturbs the function of the brain.

88.  When he was cross-examined, he accepted that whether a person suffers from ADHD and the degree to which they are affected by it is a clinical judgment which is based on the information given to the doctors as well as their observations of the patient.

89.  He accepted as correct that adults with ADHD may learn how to deal with inattention, hyperactivity and impulsivity as they mature even if the ADHD does not entirely resolve.

90.  He said that despite the difficulties and tension in the relationship between the applicant and the deceased, the applicant had managed to control himself and had not previously physically attacked the deceased.  The applicant had actually been quite self-controlled about his mother up to this stage, he said; although he would punch things and apparently even threatened to jump out of the window on one occasion, he had done nothing physical to his mother previously. Dr Cheung said that this was an acute impulsive killing on top of the long on-going relationship problem and that without both factors being present, the applicant may not have done what he did.

91.  He said that the applicant was able to remember in broad terms what he had done that day leading up to the incident but could not recall every detail.  He said that the applicant had not told him that he had slipped and cut his mother, effectively, accidentally.

92.  He also said that one could not be certain, from the reply which the applicant gave when he was arrested and cautioned by the police, that he was lying.  That may depend on what he actually did remember at that time.  There exist various possibilities as to why he denied having killed his mother.  It was consistent with the way a person may react immediately after his arrest. As more persuasive evidence became available, he would accept that he had probably killed her and come to terms with reality and would then offer another explanation incompatible with his reply under caution.

93.  When re-examined, he indicated that he viewed the applicant’s level of ADHD symptoms as moderate to severe.

94.  The second witness was Dr Choi Wing-kit.  He had prepared five reports on the applicant and is the doctor actually treating him.  His reports were placed before the jury unedited.  He said that the applicant first said there were parts, especially around the time of the killing, which he could not recall, but that after he had studied the facts from the police, he thought that what the police had said could have happened and he integrated that with such memory as he, in fact, retained.

95.  He said that ADHD was not the direct cause of the conflicts between the deceased and the applicant but expressed the view that if the applicant had not suffered from ADHD, his development would have been different.  Persons suffering from ADHD are more prone to conflict with others.  One of the cardinal factors of ADHD is impulsivity which he too described as acting before thinking carefully.  He took the view that the applicant would probably continue to take the two drugs presently being administered to him for the rest of his life.  He had not shown any significant side-effects from taking them.

96.  When he was cross-examined, he pointed out that the issue of dissociative amnesia, referred to in paragraph 24 of his first report, related to an inability to remember events and had nothing to do with incorrect or incomplete reporting of facts painful to the patient.

97.  Dr Choi indicated that he did not have enough information to be able to form an opinion as to whether the applicant was or was not able to make decisions about what he did in the flat, but he agreed that the conduct of the applicant after the killing could be rational even if his behaviour in the flat had been impulsive.

98.  He agreed that if the applicant’s subsequent conduct could be described as covering up his crime, that would have nothing to do with ADHD.  When asked further whether he may do impulsive things in covering up his crime, he agreed and added that such a situation did not mean that the applicant did not know what he was doing was right or wrong.

99.  When he was told that the applicant had taken his mother’s mobile telephone when leaving and sold it within the hour, his response was that that may raise some suspicions as to whether he really lacked the intention to kill.

100.  In re-examination, he accepted that a person can act impulsively from ADHD and thereafter act rationally to try to protect themselves.

101.  The final witness was Dr Lui Sing-heung who said that he had assessed but never treated the applicant.  He expressed the opinion that a patient with ADHD has a greater chance of experiencing emotional disorders.  He said that 60 per cent of young people with ADHD grow out of it by the time they reach adulthood whilst the remaining percentage grow out of it by their 40s.

102.  He noted that the applicant had been able to exercise self‑control through a relationship which he described as having been strained for a long time.  The applicant had told him that he had been on the verge of hitting the deceased but had not done so.  It was his opinion that the symptoms of ADHD do not drive a person to commit a crime but they do make him more susceptible towards doing so.  He thought that the argument between the applicant and his mother that day may have set off an emotional reaction on the part of the applicant.

The Grounds of Appeal

103.  There are three grounds of appeal.  The first concerns the defence of diminished responsibility and complains that the judge erred in ruling that the psychiatrists could not testify on whether the applicant’s ADHD “was such as substantially impaired his mental responsibility for his acts and omissions in killing”.

104.  The second ground of appeal argues that the judge erred “in failing to give a lies direction so as to warn the jury against treating any lie by the applicant as per se evidence of guilt”.

105.  The third ground of appeal concerns the defence of provocation and the judge’s direction on the objective element of it.  The complaint is that the judge failed to direct the jury that “the gravity of the provocation is to be assessed by the characteristics of the applicant, namely the characteristic of ADHD that resulted in the applicant having an attention deficit which led to his being unable to keep a job to support himself”.

106.  The second and third grounds of appeal were added by leave of the Court and without objection from the respondent.  These additional grounds were prompted by a request from the Court that it be addressed on the issues raised by them.

Discussion

107.  In his summing-up the judge directed the jury on the elements of murder and of the two defences of provocation and diminished responsibility by way of written handouts to the jury supplemented by oral directions.  He told them firstly to consider the elements of murder then, if satisfied those elements had been proven to consider the defence of provocation and if satisfied that the applicant had not been provoked to then go on to consider the defence of diminished responsibility.

108.  In respect of both defences, there was the issue of whether the jury accepted the applicant’s evidence as to the circumstances surrounding the killing.  In respect of provocation, this was relevant to whether statements were made by the deceased that, set against the background of their relationship, then provoked him into violence.

109.  If there were found by the jury to be provocative acts by the deceased and that these provocative acts caused the applicant to lose his self-control then it would fall to the jury to determine the further question of whether these provocative acts would have been such as to cause an ordinary and sober person of the applicant’s age and sex to do so as he did.  This is the objective element and it is the judge’s directions on this element which are the subject of the third ground of appeal.

110.  In respect of the defence of diminished responsibility the only element of the defence that was being disputed was the element of whether when the applicant attacked his mother, he did so under the influence of his ADHD and, if so, whether it substantially impaired his mental responsibility for that attack.

111.  It is important to recognise at the outset that there was, in fact, a link between the two defences of provocation and diminished responsibility. Both had at their heart an assertion that the applicant lost control of himself and both required a trigger for this loss of control.  This is because the abnormality of mind relied upon, here ADHD, has as one of its three features, impulsivity ‑ the sudden, acute occurrence of emotion resulting in impulsive acts.  Thus, for provocation there had to be provocative acts by the deceased causing a loss of self-control by the applicant and for diminished responsibility based on ADHD there had to be circumstances generating a sudden acute occurrence of emotion that caused the applicant to act impulsively and unable to control his actions.  The provocative acts of the deceased were also the circumstances that caused the applicant to act impulsively.  The only evidence of these acts and circumstances came from the applicant.  Both defences, therefore, depended for their success on the jury not rejecting the applicant’s evidence of how the killing occurred.

The 1^st Ground of Appeal

112.  Of course, it is impossible to know what caused the jury to find the defence of diminished responsibility not proven but it must have been either a rejection of the applicant’s testimony as to the circumstances surrounding the killing or not being satisfied of the operative or substantial impairment effect of the ADHD.

113.  The medical evidence presented by the applicant consisted of reports compiled by three psychiatrists, supplemented by their oral testimony.  The primary report was that of Dr Cheung Hung-kin but, after discussion between bar and bench, it was edited to remove from it matters which were either the judge’s province on which to direct the jury or the jury’s province on which to make findings.  It is the redactions made because of the latter concern that is the subject of the first ground of appeal.  These redactions were made at the direction of the judge but that same direction, it is said, acted as a constraint on what defence counsel could adduce from Dr Cheung and prevented the applicant from properly advancing his defence before the jury.

114.  In terms of section 3(1) of the Homicide Ordinance, Cap 339, the issue before the jury on which it had to make findings were whether the applicant suffered from an abnormality of the mind that arises “from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury”; whether he was subject to its influence at the time of the killing and if he was whether the abnormality of the mind “substantially impaired his mental responsibility for his acts and omissions in doing … the killing”.

115.  That an inability to exercise self‑control can be an abnormality of the mind was made clear by the English Court of Appeal in R v Byrne [1960] 2 QB 396 when Lord Chief Justice Parker said at page 403:

““Abnormality of mind” … appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment.”

It was accepted by the respondent that ADHD is an abnormality of the mind and that its aetiology satisfied the requirements of the section.

116.  Though the phrase “mental responsibility for his acts and omissions” is somewhat obscure in its meaning and scope [1] we are in no doubt that it would encompass an inability to exercise self-control as a consequence of the effect of the impulsivity characteristic of ADHD.  This also was made clear by Lord Parker CJ in Byrne when he said at page 403:

“The expression “mental responsibility for his acts” points to a consideration of the extent to which the accused’s mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.”

This also was accepted by the respondent and so the only contested issues before the jury were whether at the time of the killing the applicant was acting under the influence of ADHD’s impulsivity characteristic and, if so, whether that substantially impaired his mental responsibility for his acts.

117.  In respect of the third element of the defence, Lord Parker CJ went on to point out that there is a difference between a person not resisting an impulse and a person unable to resist an impulse.  If the jury is satisfied that the abnormality of the mind renders the person unable to exercise will power to control physical acts then the defence succeeds.  But, if the abnormality of the mind merely makes it difficult for the accused to exercise will power to resist the impulse then the jury will have to decide on the balance of probabilities as to “whether the difficulty is so great as to amount in their view to a substantial impairment of the accused’s mental responsibility for his acts.” [2] This distinction is particularly relevant in the present case given the psychiatric evidence and the absence of any episode of violence in the history of the applicant’s relationship with his mother.

118.  It seems to us that bound up in this ground of appeal are three issues, namely:

(i) can the psychiatrist be asked directly whether in his opinion the ADHD substantially impaired the applicant’s mental responsibility for his acts or omissions in doing the killing;

(ii) if the answer is “no”, then what are the parameters of the evidence which the expert can give; and

(iii) in the present case was the applicant prevented from properly advancing his defence.

(i)  Can the expert express an opinion on the 3^rd element?

119.  It was argued for the applicant that the old case law relating to experts not being allowed to comment on the ultimate jury issue no longer apply and the fact that the third element was a matter for the jury is no longer a prohibition on the jury receiving expert evidence.  We accept that the legal position as to when an expert can testify on the ultimate question was accurately summarised by Stock JA (as he then was) in HKSAR v Mo Sze Lung Thomson & Anor [2003] 2 HKC 356.  At page 368 he said that whether or not expert evidence is admissible on the ultimate question:

“… depends on the facts of the case; upon the expertise, whether that expertise is relevant to the ultimate question; whether the expert’s opinion on ‘the ultimate question’ is a conclusion which depends upon his expertise or is proffered in some other capacity; and whether the court requires the assistance of an expert upon the ultimate question.”

120.  But, it is not possible to address the matters raised by Stock JA without first determining whether the third element is a purely medical question or whether it is only a non-medical question to which medical evidence may be relevant.  Unfortunately, there appears to be a paucity of case law on this subject but there is a decision of the New South Wales Court of Criminal Appeal on this issue which we have found helpful.

121.  It is the decision of R v Majdalawi (2000) 113 A Crim R 241. Spigelman CJ in giving the judgment of the Court quoted the earlier decision of Hunt CJ at Common Law in R v Trotter (1993) 68 A Crim  R 536.  This decision now represents the law of New South Wales in respect of the third element of diminished responsibility which is expressed in identical language to our section 3.[3]  At pages 537-538 Hunt CJ said:

“The ‘crucial’ question in the defence of diminished responsibility is, however, whether the impairment of the accused’s mental responsibility for his act was substantial: Byrne (at 403). Some impairment is not sufficient; if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial … .

It was held in Byrne (at 404) that medical evidence is relevant to this question as well, but not decisive of it. The Court of Criminal Appeal pointed out (at 403-404) that the question involved matters of degree, and that it is one which is essentially for the jury. And, as the question is not merely a medical one of whether there was an impairment but also whether that impairment can ‘properly’ be called substantial, it was pointed out (at 404) that this is a matter upon which juries may quite legitimately differ from the medical experts. See also Lloyd [1967] 1 QB 175 at 179]. It is often put to juries that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter: Ignjatic (1993) 68 A Crim R 333 at 346-347.

Those criteria demonstrate why expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial.  The doctors are obviously qualified to say whether the extent of the particular impairment to the accused’s perceptions, judgment and self-control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused’s mental responsibility for his actions may ‘properly’ be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession.  That is a task for the tribunal of fact, which must approach that task in a broad commonsense way: Byrne (at 404); Walton (at 793).  It involves a value judgment by the jury representing the community (or by a judge where there is no jury), not a finding of medical fact.”

122.  In a very brief concurring judgment in Majdalawi Adams J put the legal position succinctly and, we believe, accurately.  He said at paragraph 36 of the judgment:

“It is important to note that the value judgment by the jury representing the community to which his Honour the Chief Judge at Common Law adverted in Ryan is a decision about culpability. Hence it is not a medical question.”

123.  Thus, the issue here is not so much one of allowing the experts to express opinions on matters that are considered an ultimate issue for the jury to decide, but rather one of not allowing experts to express an opinion that is outwith their expertise.

124.  It is our view, therefore, that the third element of the defence of diminished responsibility is not a purely medical question but a question to which medical evidence may be relevant.  Thus, it will be answered by drawing upon the expert medical opinions but they are only one of the sources of evidence upon which the jury will draw in making their determination.  The importance of medical opinion may vary according to the abnormality of mind under consideration.  Here, it is the ability to exercise self-control.  Where the abnormality of mind completely deprives a person of that ability then medical opinion evidence will no doubt be the dominant form of evidence on which reliance is made in answering the question of whether the accused’s mental responsibility for his acts was substantially impaired.  But where, as here, the abnormality of mind merely makes it more difficult for the applicant to exercise control over his actions then medical evidence, though still important, will not have the importance it has in the former situation.

125.  For these reasons we do not think the judge was wrong to prevent the psychiatrists from expressing opinions on the substantial impairment element of the defence and from directing the jury to ignore such opinions where they had been expressed.

(ii)  The parameters of the expert evidence

126.  The first thing to note on this issue is that the expert’s opinions are qualified by the factual assumptions on which the opinions are based.  This is very important when, as here, there are a lot of factual findings the jury have to make before they can, or need to, consider the third element.

127.  For example, the very first question the jury had to answer is whether at the time of the killing the applicant was subject to the influence of ADHD. This is not the same as whether he was suffering from ADHD.  Clearly, he was suffering from ADHD because he fell into that percentage of sufferers who carry the disease into adulthood and though its symptoms can be managed by medication the disease is not curable.  Nor is it a disease which ebbs and flows in its effect.  It is permanently with the sufferer and provides him with an inclination or predisposition to act impulsively.  Translated to the present case it meant that the jury had to find whether at the time he attacked his mother the applicant was under the influence of the impulsivity characteristic of his ADHD condition.  This required the jury to determine whether the explanation of the applicant was or might be true for it was implicit in that explanation that the applicant was claiming that he had a sudden and explosive loss of self-control which, by reliance on the psychiatric evidence, the applicant was asking the jury to find was due to the effect of the impulsivity characteristic of his ADHD.

128.  Thus, in considering the applicant’s defence the jury had to determine whether the act of killing was the result of the applicant losing his self-control.  This is a purely factual issue and it was, given the considerable tension that existed in the applicant’s relationship with his mother, a live issue in the case.  Notwithstanding the apparent frenzied nature of the attack, it could not be said that in light of the evidence as a whole, the jury would inevitably conclude that the applicant had lost his self-control.  This was because there was evidence that the applicant had stolen his mother’s mobile phone; was aware that his mother was alive when he left the flat and deliberately chose not to call for assistance; his post-offence conduct generally which suggested he had presence of mind; and the fact there were no past episodes of violence against the mother.

129.  However, should the jury find that there was a sudden and explosive loss of control by the applicant then they would have to go on to consider the second issue of what caused it.  Was it simply a reaction to the deceased’s taunt of “You try it” and/or the result of bad temper, anger and even revenge for past mistreatment or was it due in part to the influence of the ADHD?

130.  On the assumption that the jury found the killing was due to a loss of self-control, and on the assumption that the jury was satisfied that the applicant’s ADHD condition contributed to that loss of self-control, then it would have found that at the time of the killing the applicant was subject to the influence of ADHD.  If the jury had reached such a conclusion it would then have had to decide the issue of whether the ADHD “substantially impaired the applicant’s mental responsibility for his acts”.  This would require the jury to consider whether the applicant’s loss of self-control was substantially due to the influence of the impulsivity characteristic of his ADHD condition and how that influence affected, in their view, his culpability for the killing.

131.  From this analysis it is apparent that the element of whether the applicant’s ADHD substantially impaired his mental responsibility for his acts is not a discrete, stand-alone question that can be determined in a factual vacuum.  Bound up with the substantial impairment question were a number of factual issues which had to be determined before the substantial impairment element could be addressed.  For example, any question relating to the issue of substantial impairment would have to assume that the violence in which this killing took place occurred as a result of the applicant losing his self-control and that finding required the jury to make an assessment of the applicant’s credibility and a decision as to whether they accepted all or any part of his evidence as to the circumstances in which the killing took place.

132.  If the ultimate issue is approached in such a step by step approach, it not only becomes clear that any opinion expressed is heavily qualified by the assumptions on which it is based, it also becomes clear whether the known science or the doctor’s expertise allows for the expression of the opinion which counsel is seeking to elicit.

133.  On the assumption that the applicant lost his self-control, the defence will need to explore with the psychiatrists what they can say on the question of whether that loss of self-control was substantially due to the influence of the impulsivity characteristic of the applicant’s ADHD condition.  The psychiatrists can explain how the impulsivity characteristic can influence a sufferer’s ability to exercise self-control and how it could contribute to a person losing self-control.  Particularly relevant is the severity of the applicant’s ADHD and the extent to which a person with that level of severity of condition might be influenced by the ADHD’s impulsivity characteristic in maintaining his self-control.  Questions could then be asked as to whether, given the severity of the applicant’s ADHD condition, it could, through the influence of its impulsivity characteristic, have contributed to the applicant losing his self‑control.  If the psychiatrists agree that it could contribute to the applicant losing his self‑control, then they could be asked to describe the extent to which the applicant’s ability to exercise self-control was impaired.

134.  In order to avoid confusion in the jury’s mind as to what issue it is that they are addressing it would be preferable if the psychiatrists could avoid using the word “substantial” as a description of the extent of the impairment.  However, if that cannot be avoided then the judge will have to carefully direct the jury so that they understand that the decision of whether the applicant’s abnormality of the mind substantially impaired his mental responsibility for the killing is one for them alone to make and in making that decision they could make use of the evidence of the psychiatrists on the nature and severity of the applicant’s abnormality of mind, the manner in which and extent to which it affected his daily functioning and, specifically, how and to what degree it affected his ability to exercise self-control.

135.  These questions all address medical areas within the expertise of the witness and are not couched in the language of section 3.

(iii)  Was the applicant prevented from properly advancing his defence?

136.  The starting point to addressing this issue is to have a clear understanding of the defence.  The defence case was that the past bitter history of the applicant’s relationship with his mother and the restraint the applicant had shown in his dealings with her led to the applicant becoming an emotional time-bomb waiting to explode.  Against this background the defence focussed on the influence of the impulsivity characteristic of ADHD on the ability of the applicant to exercise self-control and the operation of this characteristic in conjunction with a trigger that could cause the applicant to explode. The trigger was the critical and accusatory comments of the deceased, especially the remark that the applicant believed his girlfriend but not his family members.

137.  Having articulated the defence it is then necessary to see what happened in respect of the medical reports and how those events impacted upon the applicant’s efforts to adduce from the experts relevant evidence in support of the defence.

138.  The only report which was edited is the report of Dr Cheung from which the following passage was redacted:

“In the case of Mr Lo, his ADHD is obviously significantly affecting his performance in his school, his work, his social behaviours, as well as his interpersonal relationships. If he was kicked out of school, dismissed from work, and conflicted frequently with others by reason of his mental disorder, we cannot for certain say that his impairment is “minimal”.” [4]

139.  It seems to us that Dr Cheung is here describing the severity of the applicant’s condition which is a proper area of his expertise and therefore a legitimate opinion for him to express.  However, he has expressed his opinion in the context of discussing in his report the “substantial impairment” element of the defence and consequently it was assumed that he was expressing an opinion on this element of the defence.  But, he is really only making a general assessment of the applicant’s condition and in using the word “impairment” he is referring not to the mental responsibility for the killing, but the impairment of those areas of the personality that the condition affects, such as self-control and attention span.

140.  It is unfortunate that the language employed by Dr Cheung caused the judge and the parties to assume that he was trespassing into areas he was not allowed to go.  That everyone had made this assumption was hardly surprising given that Dr Cheung had, earlier in his report, shown a readiness to quote and discuss legal principles relevant to the defence of diminished responsibility.

141.  However, this redaction, on its own, does not mean that the applicant was denied an opportunity to properly advance his defence.  It is necessary to examine what else was said in the report and the evidence of Dr Cheung and the other psychiatrists to see whether they were constrained in expressing opinions on matters on which they could properly comment.  In this respect it should be observed that the judge did not give a ruling on what the doctors could or could not say.  Rather the defence counsel relied, for his understanding of what were the limits on his examination of the doctors, on the comments which fell from the judge in the course of counsel discussing with him what should be removed from Dr Cheung’s report.  Furthermore, we do not have a further statement or report from any of the psychiatrists setting out their opinions on those areas Mr Ross says he would have explored with them had he been allowed to do so.

142.  Notwithstanding the efforts that went into editing Dr Cheung’s report, the reports of the psychiatrist currently treating the applicant, Dr Choi, were not redacted.  His final report, dated 15 October 2012 and which became Exhibit D5 contained the following expressions of opinion:

“Is this ADHD condition a real cause of the Defendant’s conduct, and has it substantially impaired his mental responsibility for his acts?

5. I believe that, without his extreme form of “impulsivity” as caused by ADHD, the chance that he would act out in such an explosive way would be much reduced. Therefore, I believe that his ADHD is a real cause of the defendant’s conduct in the offence. It might not be the sole cause, but it is more than a trivial one. It fulfils the definition of “substantially impaired” as written on page 50.2 of the Specimen Directions in Jury trials.

Psychiatric Opinions

6. With the assistance of the Specimen Directions in Jury Trials, I am now in a better position to comment on the issue of diminished responsibility.

7. In my opinion, LO suffers from ADHD, an inherent psychiatric illness caused by arrested or retarded development of the brain, and this causes him “impulsivity” that constitutes an abnormality of mind. Clinical information suggests that he was still suffering from ADHD at the material time of the offence, and his “impulsivity” was a real (and not trivia) cause of his conduct in the offence. Therefore, it appears to me that his abnormality of mind as caused by ADHD has significantly impaired his mental responsibility for his killing.” [5]

143.  When this came to the attention of the judge and counsel, it was discussed and agreed that the judge should direct the jury to ignore what the psychiatrists said about the ADHD having substantially impaired the applicant’s mental responsibility for the killing as this was a matter for them to determine.[6] This the judge did as evidenced by the following passage from his summing-up:

“It may be that when you go through the psychiatrists’ reports you see, or from their oral evidence you perceive, the occasional reference to whether or not the accused’s mental responsibility for the killing was substantially impaired at the time. You are to ignore those conclusions by any psychiatrist as that is not a matter for decision by the psychiatrist but is a question of fact which you have to determine, taking into account the evidence as a whole.” [7]

144.  Without a detailed ruling from the judge and without further statements or reports from the psychiatrists, the only way it is possible to assess whether the applicant was prevented from properly advancing his defence is to examine what did go before the jury and how the experts were cross-examined.

145.  The starting point to this exercise is to see what did remain in the edited report of Dr Cheung that was placed before the jury.  At page 15 of his report Dr Cheung said:

“It can thus be easily seen that Mr. LO has fulfilled all the criteria listed, and there is no doubt that he has been suffering from an ADHD which has continually affecting him adversely, from childhood to adulthood.

(2) What then is the significance of this ADHD to the present offence? Of the 3 cardinal symptoms of ADHD (Inattention, Hyperactivity, and Impulsivity), the most relevant one here is Impulsivity. According to Oxford Advanced Learners’ Dictionary, the word “Impulsive” is defined as “acting suddenly without thinking carefully about what might happen because of what one is doing”. Very often an impulsive person is dictated by the emotional drive or desire on the spur of the moment, and he lacks the capacity to either control the expression of his emotions or postpone the gratification of his desire. In the case of Mr. LO, this has been repeatedly exemplified, by his intrusion into his classmates, stripping off his pants in class, swallowing the core of a pencil, breaking up a radio, intolerance of postponing the buying a toy, general impatience in waiting for his turn, impulsive buying of new models of mobile phones without much thinking, and so on. Most importantly, however, his impulsivity is characterized by a poor capacity to control and restrain his emotional outbursts, so that he is frequently involved in fights, verbal conflicts, banging onto table or computer, kicking things, deliberately turning on the tap forcefully, and even attempting to jump out of window in front of his mother.

The present offence appears to be committed as an impulsive act in reaction to an acute provocation on top of the chronic background of a very bitter mother-son relationship. As he put it, this was like a time-bomb which only required some ultimate trigger to make it explode. He had in fact been very restrained in his previous reactions to his mother hitherto, not an easy task for a person suffering from ADHD. The consequence of such restraint, unfortunately, was to build up the energy of the time-bomb, so that when it eventually exploded, the outcome was disastrous. There is no doubt that the impulsivity of his ADHD has decisively contributed to the emotional dyscontrol that forms the basis of his final act of violence.” [8]

146.  In examining Dr Cheung, Mr Ross assumed that the trigger for the applicant’s explosive descent into violence was the comment of the deceased that the applicant believed in his girlfriend but not his family members.  Part of his examination was as follows:

“Q. … Now, you have seen the video interviews with the police. It would appear I think from what you would have seen that the trigger – there was a trigger – was a short sentence by the mother of Mr Lo saying that – telling Mr Lo that he was more interested, liked more his girlfriend than he did his family.

…

Q. So the mother says “I believed my girlfriend but not my family members”.

A. But actually the relationship between the defendant and his mother has not been a long-lasting one and he described his mother as over-domineering, always sarcastic, and nagging and blaming him, and criticising him for not being working properly, earning money and so on. And now comes this girlfriend and this girlfriend was actually also suffering from mental illness because she was patient of Kwai Chung Hospital – Mental Hospital. And it is of course understandable that the mother would also object to him having such a girlfriend. However, he probably has find this – has found this girlfriend as very good, very nice to him and his girlfriend actually at that – at the last moment has become pregnant and so that is the conflict situation. The mother does not like him and criticise him all the time. So it’s not just one single sentence, but it’s the whole relationship. And your question is whether an ordinary person would react …

Q. Well, can I turn it to the – an ADH person, can a sentence like that trigger a killing?

A. You were talking about …

Q. Given the larger context that you’ve just mentioned.

A. If you are talking about the relationship between ADHD and the relationship, the ADHD is affecting this person social functioning and interpersonal relationships and occupational functioning and all the rest, and this is the contribution of the ADHD and this being such a case he is being criticised and rejected by the mother, and that of course ‑ that leads to the conflict and emotional and relationship problems; that is a contribution of the ADHD. That is a long-term contribution. But there is also a short‑term contribution of ADHD in terms of the impulsivity. By impulsivity we mean a person acts suddenly without too much thinking. He is just being driven by emotional drives and desires at that particular moment. So on top of the long-standing relationship problem, there may be acute episodes …

Q. Yes.

A. … sudden occurrence of emotions, impulsive acts, those are short-term, acute.

Q. Yes.

A. And you cannot separate the long-term one from the short-term one because the short-term effect is actually built upon the long-term background.

Q. Yes.

A. So without either one, he may not do something very drastic, but the two together, both of which may be contributed by the ADHD …

Q. I see.

A. … then that can lead to some sudden serious behaviours and actions which has grave consequence. So that’s the situation, that’s the contribution of ADHD to this case.

Q. Right. Now in terms of the -- I withdraw that. Could you describe ADHD as an abnormality of the mind?

A. Abnormality of the mind? Certainly. It affects the thinking, affects the control of emotions, affects the behaviour and all those constitute the mind.

Q. Yes. And does it have the effect of substantially impairing mental responsibility?

A. Well, that is a legal rather than a medical question but …

COURT: Yes, it is.

MR BRUCE: Yes, and that saves me objecting.

MR ROSS: Very well.

Q. Well, is there an impairment of mental responsibility of a person that suffers from ADHD?

A. Impairment of responsibility.

Q. Yes.

MR BRUCE: My Lord, the doctor put it best first time round, no matter how you package the question.

MR ROSS: It’s a medical …

COURT: It’s going to be a question of – it’s going to be a question for the jury, the question of -- it’s a legal question, not a medical one.

Q. One other thing, Dr Cheung, can a person with ADHD act and kill their mother and then later on behave rationally in the sense that they – they do things to avoid being caught by the police?

A. In this case, I am saying that at the moment of the killing of the mother he is affected by his impulsivity, which is part of his symptoms. But by definition, impulsivity refers to a short period of time. A person is acting suddenly without too much thinking. Do something rash and may not be totally irrational, but that is for a short period of time. After all the emotions have been ventilated and he has done something then he may come back to his original self. The ADHD has contributed to the extent that he has been impulsive, but after the impulsive act then he can carry on to think rationally and act rationally. And give you an analogy, for example you provoke me, I very impulsively slap your face and then after half a minute I realize that this is not right to do something; I regret having done it, I even apologise to you and then carry on doing whatever is normal as if not affected by that incident. So if you continue to do something rational after doing something impulsive then that is – there is no contradiction.

Q. Now, this incident occurred on 24 June 2009; from your analysis of this case are you of the view that the – this defendant – accused was suffering from ADHD at that time?

A. At that time, at the moment of the killing?

Q. Yes.

A. ADHD is a long-term illness, so without treatment then he is continue – he is continuing to suffer from symptoms of ADHD and at that time, at the moment of the offence he was certainly also still suffering from symptoms of the illness.” [9]

147.  A bit later the following examination of Dr Cheung took place:

“Q. I see. And another thing, Dr Cheung, the disease itself, ADHD, is it – does it have the effect of taking over the functions of what would ordinarily be – the ordinary functions of the brain, does it become in charge of the brain?

A. Can you repeat.

Q. Does the ADHD override what would otherwise be the ordinary functions of the brain?

A. ADHD overrides the other function?

Q. And becomes in charge as it were.

A. Becomes in charge of – of him?

Q. Of the function of the brain.

A. Of all the functions.

Q. Yes.

A. Of -- in -- a short answer to your question is yes. It is an illness on top of whatever function that we ordinary people have. So we all function at a certain normal level, but a mental illness or mental disorder would tend to disturb that function and most commonly if it is called a disorder or an illness, then most commonly it would make the function worse rather than better. Of course, some cases of mental disturbance can make you perform better, such as when you are suffering from some degree of hypomania you may actually think better, you may actually do something quicker. But, in general, ADHD is not such; it should make you worse. And if your question is whether that would be dominate – dominate the ordinary function then the short answer is yes.” [10]

148.  In cross-examination Mr Bruce elicited from Dr Cheung that the degree of severity of a sufferer’s ADHD is a clinical judgment and as a sufferer grows from childhood into adulthood that degree may change.  Furthermore, as sufferers make this transition and mature they may learn how to deal with the symptoms of the illness, including better controlling its impulsivity characteristic. But that may depend on how much they recover from the illness and in respect of the applicant the doctor said that apparently he had not recovered.

149.  Then the following exchange took place:

“Q. Okay. So her disapproval and her expression of her disapproval of the girlfriend was also a fairly constant matter as far as you could detect, is that correct?

A. Yes, you may say that.

Q. Yes. And would it be fair to say that if something pushed him over the edge of self-control on the day in which his mother died you would look to eliminate those things which had been constant pressures on him and her in previous months?

A. Actually, I have mentioned about this point in my report. This is an acute impulsive killing on top of a long-lasting or what you call constant relationship problem. So it’s a combination without one or the other probably he may not – he might not have done what he has done. The significant thing about your constant effect is he has actually been quite self-controlling as far as his reaction to his mother is concerned. Despite the fact that this relationship is so bad and he, being a rather impulsive, irritable person as manifested by his impulsive and irritable behaviours elsewhere in relation to his friends, his colleagues, boss and other people, but he – he is actually -- by that standard he was actually quite – quite well-controlled towards his mother and that was because she was his mother. And she may – she may argue back, he might argue back or even quarrel or scolded his mother, and then one moment he attempted to jump out of the window in front of the mother and he may kick things, punch on the table or the computer, he might do something like that, but he never did something which is aggressive, violent directly towards the mother. The significance of this over-controlling was that the emotions actually does not disappear, emotions are actually building up. If that person is ventilating out of his emotions in a more minor way, for example, a person may push his mother, slap his mother’s face, those would or might represent some ventilation of the emotions so that it would not amount to a big explosion. This is what I guess -- my view is that this is what has happened because the emotions has been building up for so long that with the final provocation as the patient himself described is a time bomb; it would explode one day, but don’t know when. This is when. And when – when it happens then it is not only that final provocation, but it’s the final provocation on top of the constant relationship and all the built up emotions for so many years all release at one moment; that, you may say, an explosion, which accounts for the gravity of what he has done. So your question is whether it is constant, whether it is something which is acute on chronic; it is sudden on top of chronic – of constant.

Q. Thank you. But as to what, if anything, caused the explosion as you describe it, we have to rely on his description on the occasion that it happened, is that correct? There’s nothing else inherent in his medical history which tells you about what that was.

…

A. That is the point I’m now going to say. Of course we have to rely on what he or whoever who knows anything told me – told us. I was not in the site; how could I have any first-hand knowledge of what happened? So I have to depend on what the police told me; what patient, himself, told me; what the father told me; and what all the other objective circumstances, the prison reports, the other doctors’ reports, so all these contributed to the pool of information I have to rely on. And of course I have to judge which of the data are reliable and credible and whether those data were consistent with each other.” [11]

150.  In re-examination Mr Ross did address the issue of the severity of the applicant’s ADHD condition and obtained the following evidence from Dr Cheung:

“Q. So how severe would you say his ADHD was as an adult?

A. So in this case by – as judged by the impairments in these social, academic, occupational functioning, I would say he was at least moderate to severe impairment. I won’t say he is severe impairment because he was still able to hold an occupation sometimes; he can earn some money sometimes; he could interact with friends in general, although some conflicts.

Q. All right.

A. He has even got a girlfriend.

Q. Yes.

A. So – so he is – if the severity is very severe then probably he couldn’t do even those, so I would therefore rate him as moderate towards – towards severe. I would not call him mild because the effect – the effect on his functioning; occupation, he is – he is losing his job all the time, he could not hold a job too long; could not relate to friends without conflicts and so on.

Q. All right.

A. So I won’t say he is mild, at least he is moderate.

Q. Yes. Another question, Dr Cheung, you said that – I think you agreed with the prosecutor – that ADHD is a constant condition every day. Does that mean that he would react ‑ that Mr Lo would react the same or differently during the day if there is different stresses put on him?

A. It’s something constant, but it is -- you may say the inclination is constant.

Q. Yes.

A. It is -- I give you another example. If a person is described as having an irritable personality, so this is a person with irritable personality, that does not by itself mean that he would be irritable, that is only an inclination; that is only a predisposition. This is a person who would be easily got angry, but he won’t got angry out of the blue, he still need something to provoke him. So that is something the inclination is constant, but whether he really got impulsive, whether he really got irritable, would depend on the environment.” [12]

151.  We have set out the evidence in some detail in order to demonstrate that notwithstanding the redactions made to Dr Cheung’s report there was, in reality, no constraint placed on the questioning of him.  All the areas that we have earlier mentioned as proper areas for his expression of an opinion were canvassed with him.  Contrary to the submission of Mr Ross we can find no constraints imposed on him in respect of his examination of Dr Cheung.  The occasion when he was stopped from expressing an opinion on the legal term “substantially impaired his mental responsibility for his acts” was perfectly proper but it did not stop him from subsequently expressing, in medical terms, an opinion on the severity of the applicant’s ADHD and how it impaired his day to day functioning.

152.  Mr Ross also argued that the judge’s direction to the jury that they should ignore the opinion expressed on the substantial impairment element of the defence was contradicted by his direction that it was for the jury to determine whether the factual basis for the psychiatrist’s opinions was true.  Implicit in his latter direction, it is said, is a direction to the jury that they may have regard to the psychiatrist’s opinions if they accept the factual bases for them.

153.  We do not agree that there is any contradiction between these two directions or any confusion created by them.  The two directions appear widely apart in the summing-up [13] and are clearly directed at quite separate issues.  There is no reason why the jury would relate one to the other.  In respect of their own separate issues they are both perfectly proper, and readily comprehensible, directions.

154.  After considering the way the evidence and this issue was adduced, it does not seem to us that the applicant has been improperly prejudiced in any way in advancing his defence of diminished responsibility.  This ground of appeal, therefore, fails.

155.  However, in the course of discussing this ground of appeal we have concluded that the psychiatrists can testify on matters relating to the applicant’s abnormality of mind, its characteristics, its effect on the applicant’s daily functioning and how and the extent to which it could affect his ability to exercise self-control.  Although we have also concluded that the applicant’s counsel was not, in fact, constrained from adducing this evidence from them and that it was properly before the jury, we cannot leave this ground of appeal without also considering the question of whether the jury would have clearly understood from the judge’s directions to them that in deciding the issue of whether the applicant’s abnormality of mind substantially impaired his mental responsibility for the killing, they could make use of the psychiatric evidence and, specifically, could rely on the opinions of the psychiatrists on how and the extent to which the ADHD affected the applicant’s ability to exercise self-control.

156.  The starting point for a consideration of this question is the direction given by the judge quite early in his summing-up that is quoted at paragraph 143 of this judgment.  Here, he makes it clear that the decision on substantial impairment of mental responsibility is for them alone “taking into account the evidence as a whole”.  However, at the time he is giving this direction he has not explained to the jury the elements of diminished responsibility and it is possible that the jury, at this time, may have been left with the impression that they were to ignore any evidence by psychiatrists where they discussed the substantial impairment effect of the ADHD on the applicant.  This is particularly so given that this direction came as part of a direction not, as we have said, on the defence of diminished responsibility, but rather on the use the jury can make of the expert evidence.

157.  The next occasion in the summing-up where mention is made of the medical evidence is in the directions on the defence of diminished responsibility. After discussing the third element of substantial impairment the judge made the following comment which is also contained in his written handout to the jury:

“Again, although the medical evidence which you have heard is important, you must consider not only the evidence of doctors but also the evidence relating to the killing and the circumstances in which it occurred. Also consider the behaviour of the accused both before and after that event and take into account his medical history as well as what you know about the nature of the relationship between the accused and his mother.” [14]

158.  Unfortunately, apart from referring the jury to the medical evidence generally, he did not discuss with them on how that evidence, specifically the opinions on how and the extent to which the ADHD affected the applicant’s ability to exercise self-control, might assist them in determining the third element of the defence.

159.  But, the judge did summarise the evidence of the psychiatrists in some detail.  Part of that summary included a reference to the opinions of Dr Cheung Hung-kin emphasising the role that the long-term bad relationship between the applicant and his mother may have played in the commission of the offence and that the ADHD was a contributing factor to this long-term bad relationship; that the impulsivity characteristic of ADHD was a short-term contribution to the applicant’s behaviour; that the combination of the two (ie the short-term effect building onto the long-term effect) can lead to sudden behaviour with grave consequences; that there is no contradiction in the applicant acting rationally after the momentary impulse; that the effect of ADHD is to disturb the function of the brain; that this was an acute impulsive killing on top of the long on‑going relationship problem and that without both factors being present (ie the short-term effect building onto the long-term effect) the applicant may not have done what he did, and finally that he would characterize the applicant’s ADHD symptoms as moderate to severe.

160.  He also referred to the evidence of Dr Lui Sing-heung that the symptoms of ADHD do not drive a person to commit a crime but they do make him more susceptible to doing so and to his opinion that the argument between the applicant and his mother may have set off an emotional reaction on the part of the applicant.

161.  After this summary of the evidence the judge drew together for the jury the legal issues they had to decide, the evidence and the arguments of the parties.  He said:

“Although it is a matter for you, it seems to me likely that you will find that ADHD is an abnormality of the mind which arises from arrested or retarded development of the mind and that the accused was suffering from ADHD on 24 June 2009. The prosecution accepts both of those propositions but it remains a matter about which you, as finders of fact, must be satisfied. Those are certainly conclusions at which you could properly arrive based upon the psychiatric evidence that you have heard.

The issue that then remains for you is whether that abnormality substantially impaired the accused’s mental responsibility for the act which caused the death at the time of the killing. The prosecution disputes that the accused was in any way affected at that time. To a very large extent, the prosecution relies upon the same evidence as in regard to the issue of intention and provocation as indicating that the accused was not affected by ADHD. In addition, it points out to you that the accused had been able to control his impulses previously over an extended period but, according to him, had been unable to do so on this occasion.

There seem to be two points about that which you might wish to consider: first, it was the evidence of the first psychiatrist that that fact is unremarkable – he explained to you that tensions in their relationship would continue to mount until they reached the point where they boiled over, until the accused had become, he used the accused’s own description, a time bomb; second, although you may accept that to be so, you will recall that it was the accused’s testimony that the relationship between him and his mother had improved and you may think, therefore, that there would be a reduced likelihood of his acting impulsively.

In regard to this issue, the accused points once again to the very nature of the attack on the deceased, the number of wounds inflicted. Is this something which any person in control of himself would do to his mother? He says that after the first wound was inflicted, accidentally according to him, he then went mad. He did not know why he concluded that he had gone mad but that was how he felt. Although the accused now bears the onus of satisfying you on the balance of probabilities that his responsibility was diminished at the time of the offence, in determining whether or not that was so, you may again find it helpful to consider everything said about the evidence relating to his conduct or behaviour after the killing as you may find it just as relevant to this issue.” [15]

162.  It seems to us that when the summing-up is viewed as a whole there can be no doubt that the jury were not only reminded of the evidence and opinions of the psychiatrists, but would have been clear in their own minds that they could make use of it when determining each of the three elements of the defence of diminished responsibility.

The 2^nd ground of appeal

163.  This ground of appeal argues that a lies direction should have been given as there was lengthy cross-examination of the applicant on his assertion to his father that he was working on the day of his mother’s death.  It is said that if the jury found this to be a lie then there was a risk that the jury would misuse it to reason that the applicant lied because he knew he had murdered her and wanted nothing further to do with her.

164.  The issue of the applicant not having told the truth in all that he said, in and out of court, was squarely before the jury.  There was certainly a number of occasions where the jury might conclude that the applicant had been untruthful.  The judge referred to these in his summing‑up, saying:

“You have had the opportunity of seeing and hearing the accused testify before you. You have also had the opportunity of watching him during the interview with the police. You have the opportunity of assessing his testimony before you in the light of what he said on previous occasions. I have just gone through for you the apparent discrepancies which exist between the various versions that he gave – or I did so yesterday.” [16]

and shortly thereafter the judge referred to specific untruths of the applicant, including the one of which complaint is made.  He said.

“He lied to his father about working that day when his father telephoned him to give him news about the deceased. He had given an untruthful explanation the following morning to the police about how he had sustained injuries to his hand. He gave an untruthful answer to the police when he was arrested and cautioned.” [17]

165.  We do not have the closing speeches of counsel but we know that the prosecutor did not rely on lies for any purpose other than assessing the credibility of the applicant.  This was an issue that arose in discussion between counsel and the judge and when the prosecutor eschewed any reliance on lies to support guilt the judge informed them that he would not give a lies direction.  There was no dissent from Mr Ross to this proposed course of action.

166.  In his summing-up the judge informed the jury of the prosecution’s position saying:

“In contending that you should disbelieve the accused’s version, the prosecution says that the accused is not worthy of any belief.” [18]

167.  Earlier the judge had directed the jury on the use they could  make of inconsistencies between what the applicant said out of court and what he said in court:

“ If the accused adopted in court what he had said in an earlier interview, you may regard it as part of his evidence in court and attach such weight to it as you think appropriate. …

If in court, though, he denies the truth of what you are satisfied he said during the interview, then you may take that denial into account both in considering the weight you should attach to it, to that denial, and in assessing whether and, if so, how that affects his credibility and reliability as a witness. For example, he told the police during the same interview that it was he who had sold the deceased’s mobile telephone soon after he had left his parents’ flat, whereas he had said in his testimony before you that it had been his girlfriend who actually sold it. So what you may do when deciding whether a witness is believable and reliable or not concerning what he or she has said in court is take into account what the witness said on a previous occasion.” [19]

168.  Thus, everything said by counsel and the judge would have guided the jury to using inconsistencies and lies for the limited purpose of assessing the applicant’s credibility and would have provided positive discouragement to the jury to engage in any impermissible line of reasoning.

169.  Immediately after the passage where the judge informed the jury of the prosecution’s position, he said:

“If you were to find that you entirely disbelieve the accused, you may regard that as having consequences for all three of the matters which you have to decide. As insofar as provocation is concerned, you may disbelieve the accused as to what was said to him and the circumstances that existed, and in regard to diminished responsibility, it may the mean that the psychiatrists have relied upon untrue information given to them by the accused.” [20]

Again, further encouragement to the jury to limit the use they make of any finding that the applicant was not telling the truth.

170.  But, we mention this paragraph in particular for it highlights what was in issue in this trial and the efforts of the judge to have the jury focus on the impact that the applicant’s untruths may have on those issues.  The first of the three matters referred to by the judge was the issue of whether, in attacking the deceased, the applicant had an intent to kill or to cause grievous bodily harm.  The second and third matters, the factual bases for the defences of provocation and diminished responsibility, only arise if the jury are satisfied of the elements of murder.  So the question becomes whether, in deciding if the applicant had an intention to kill or cause grievous bodily harm, the jury might have resorted to an impermissible line of reasoning when considering the effect of the applicant’s lie that he told his father he was working on the day of his mother’s death.

171.  This question must be answered by having regard to the way this case was defended.  The applicant was not denying that he inflicted the wounds which killed the deceased.  His factual defence was that he went to the flat without harbouring any intent to harm his mother; in the course of an argument with her he slipped on a sock and as a consequence accidentally cut her on the lip. Then he “went mad” and repeatedly stabbed her.

172.  In legal terms the applicant was admitting to killing the deceased but denying murdering her.  In cases where the jury has to decide whether it was the applicant or some other person who killed the deceased there may be the risk of it resorting to an impermissible line of reasoning, but we do not see why a jury would be tempted to employ an impermissible line of reasoning in this case where the applicant admitted the killing and the only issue it had to determine was his intent in inflicting the cut and stab wounds to the deceased. Consequently, given the narrow issues in the case and the basis on which it was fought we do not think that there was any risk that the jury would engage in an impermissible form of reasoning to conclude that in inflicting the wounds to his mother he had an intention to kill or cause grievous bodily harm to her. We see no merit in this ground of appeal.

The 3^rd ground of appeal

173.  The defence of provocation is set out in section 4 of the Homicide Ordinance, Cap 339.  The section requires firstly that “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)” and secondly that “the provocation was enough to make a reasonable man do as he did; 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.”

174.  These two limbs of the defence were discussed by Lord Nicholls in AG for Jersey v Holley [2005] 2 AC 580 and his analysis of the law was approved and followed by the Court of Final Appeal in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354.  At pages 588 H - 589 E he said:

“ 5 Thus, in line with the common law, section 3 envisages that the defence of provocation has two ingredients. The first ingredient, known as the subjective or factual ingredient, is that the defendant was provoked into losing his self-control. This concept is not without its own difficulties, but it is not necessary to pursue them on this occasion. Suffice to say, in deciding whether this ingredient exists in a particular case all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control.

6 The second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statute, “the question whether the provocation was enough to make a reasonable man do as he did … [taking] into account everything both done and said according to the effect … it would have on a reasonable man”. Broken down, this objective ingredient has two elements. The first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: “whether the provocation was enough to make a reasonable man do as he did”.

…

14 The statutory reasonable man has the power of self-control to be expected of an ordinary person of like sex and age. In other respects, that is, in respects other than power of self‑control, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant.” (Emphasis added).

175.  The position, summarised, is therefore as follows:

(1) in deciding the subjective ingredient, namely, whether the defendant was indeed provoked into losing his self-control, evidence of any mental or other abnormality which makes it more or less likely that he was, in fact, provoked to lose his self-control is admissible and relevant;

(2) in deciding the objective ingredient of the defence of provocation, namely, whether the provocation was enough to make the reasonable man do as the defendant did, taking into account everything done and said according to the effect it would have on a reasonable man, there are two stages or questions:

(i) the first question under the objective limb is what is the gravity of the provocation.  In answering this question, the reasonable man must be taken to share such of the defendant's characteristics as a jury think would affect the gravity of the provocation.  This was explained in Ho Hoi Shing at page 68:

“The accused’s characteristics that the person with ordinary self-control may be taken to share are those which a reasonable person may have, eg having some physical impairment or deformity or something in one's background that a person might be sensitive about, such as illegitimacy. If the provocation was directed to that sort of thing, the reasonable person may be taken to have had such characteristics.” (Emphasis added).

(ii) the second question under the objective limb is would or might the provocation, thus assessed, have caused a person with ordinary powers of self-control to do as the defendant did?  In deciding this question, the jury is required to address the powers of self-control possessed, not by the particular defendant, but by ordinary people of the age and sex of the defendant; of the age and sex because it is supposed that powers of self-control of ordinary people “vary according to their age and, more doubtfully, their sex”: Holley at paragraph 13.  For the purpose of this last question, it does not avail a defendant to say that he happens to be exceptionally excitable or pugnacious or that the degree of his reaction is attributable to some abnormality: see Holly paragraphs 12 and 13.

176.  It is against that summary of the law, that we examine the third ground which stems from the judge’s direction to the jury that for the purpose of considering the defence of provocation the jury must ignore the applicant’s ADHD and have regard to it only when considering the defence of diminished responsibility. He said:

“If you conclude that the accused was, or might have been provoked in the sense which I have explained, you must then ask yourself this question: was or may that conduct have been such as to cause an ordinary and sober person of the accused’s age and sex to do as he did ?

An ordinary person is simply a person who has the powers of self-control to be expected of an ordinary sober person who is of the accused's age and sex. For the purpose of determining the issue of provocation, you are to disregard the testimony of the expert witnesses to the effect that the accused suffers from ADHD which plays no role in the issue of provocation and in which you will consider only in connection with the issue of diminished responsibility.” (Emphasis added)

177.  This was, as the respondent accepts, clearly a misdirection in relation to the first limb of provocation, namely, the question whether the accused was, in fact, provoked into losing his self-control, for the applicant was clearly relying on the evidence of the impulsivity characteristic of ADHD to show that he was thereby more prone or predisposed to lose his self-control.

178.  The next, albeit less clear-cut, problem with the direction to which we have referred is that the judge failed to direct the jury that when assessing the gravity of such provocative acts as took place or may have taken place, they were to take into account such particular characteristics of the applicant as were relevant to the provocative acts and their gravity.

179.  A direction to take into account such characteristics is only required where there is evidence of some characteristic to which the provocation was directed.  For example, it might be said, it is one thing to taunt a person about his poor performance at sports, but all the more hurtful if that poor performance is attributable to a physical disability.  The physical disability, in that example, becomes a personal characteristic relevant to the gravity of the provocation.

180.  In this case the provocative conduct by the deceased was described by the judge in a written handout on the topic of provocation. In this document the judge said:

“His mother had said to him words to the effect that he could not even support himself so how could he raise a child and suggested that his girlfriend should have an abortion. He had responded that his girlfriend was three months pregnant and it would be dangerous to have an abortion. They talked further and then his mother accused him of believing his girlfriend and not believing in his family. It was his evidence that then he started to have a headache and he could not recall anything else.”

181.  In his evidence the applicant placed emphasis on the mother’s statement that he believed in the girlfriend rather than the family as the triggering event for his violent attack.  Nevertheless, it is fair to say that that comment was part of a conversation in which the deceased was generally critical of the applicant and of his ability to provide for his girlfriend and their child whose birth would soon take place.

182.  If, in the present case, the mother’s words could be construed as a humiliating taunt at the applicant’s inability to obtain and retain employment and earn the income necessary to support himself and provide for his girlfriend and unborn child, and the jury accepted that these words were part of the provocative conduct that caused the applicant to lose his self-control, then the ADHD would be relevant to the jury’s assessment of the gravity of the provocation.  It would be relevant only because it was a material cause of the applicant’s problems in keeping employed and earning an income to support himself.  In the words of the High Court of Australia in Masciantonio v R (1995) 183 CLR 58 at paragraph 28, this puts the provocation into context.

183.  In respect of this applicant the context for assessing the gravity of the deceased’s provocative words is that the applicant had a history of being unable to keep a job and from time to time had been in receipt of CSSA.  He had been so impecunious that there had been times when he and his girlfriend had nowhere to sleep and had had to resort to remaining overnight in McDonald’s restaurants. His impecuniosity was directly due to his inability to stay employed and thereby to earn a regular income.  Furthermore, his inability to keep a job had been the reason his mother had forced him to leave home.  The evidence suggested that most of his problems were due to his inability to hold down a job which, on the applicant’s case, was due to the impact of ADHD on his personality.  Furthermore, this inability was the root cause of his tense relationship with his mother and the very reason why she forced him to leave home.

184.  Accordingly, it is argued that the jury ought to have been directed that in assessing the gravity of the deceased's provocation vis‑a‑vis the applicant, account should be taken of the fact that, as a direct consequence of his ADHD, the applicant had a history of difficulty in keeping a job and of earning income to support himself.  Account should be taken of this fact because, it is said, the deceased’s provocative conduct was directed at the effect of that disability.

185.  In the present case the judge failed to mention any of these contextual elements of the applicant when directing the jury on how they should assess the gravity of the provocation.  In our judgment, he should have done.

186.  Thus, the jury’s consideration of the defence of provocation has been affected in two ways.  First, the misdirection to ignore the evidence of ADHD affects the issue of whether the applicant lost his self‑control.  Secondly, the same misdirection meant that the jury, in assessing the gravity of the provocative acts, would not have taken into account the evidence that, as a result of his ADHD, the applicant has great difficulty in obtaining and holding a job and, therefore, of being able to financially support himself and others; so that in addressing the question how a person with ordinary power of self-control would react to provocation of that gravity, the jury would not have in its mind a properly assessed level of gravity of the provocation.

The Proviso

187.  This raises the issue of whether, given that as a result of the misdirection the applicant never had his defence of provocation properly considered by the jury, this is a suitable case for the application of the proviso.  Mr Ross says it is not, arguing that in the circumstances of this case where an element of a defence is not properly placed before the jury, it is not possible to say that the jury would have inevitably found that the prosecution had disproven the defence.

188.  Before this Court can apply the proviso it must be satisfied that “a reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion”.[21] It is only by being so satisfied that the Court of Appeal can conclude, in accordance with section 83 of the Criminal Procedure Ordinance, Cap 221, that “no miscarriage of justice has occurred”.

189.  In the present case the defence was properly raised on the evidence and was, therefore, a defence which had to be fairly placed before the jury.  That did not happen as we have explained.  Precisely because it did not happen it is impossible to determine whether to apply the proviso without making certain assumptions.  For example, we must assume that had it been properly directed the jury would have found the applicant had lost his self-control.  We must also assume that, in considering the objective limb of the defence, the jury would have assessed the gravity of the provocative acts by reference to the particular characteristics from which this applicant suffered by reason of the influence on his personality of his ADHD.

190.  Clearly, the jury’s assessment of the gravity of the provocation is key to how it answers the purely objective question of the second stage of the second limb of provocation.  However, what assessment the jury might have made of the gravity of the provocation, and how that assessment might have affected their consideration of whether an ordinary and sober person would have reacted to the provocation in the way the applicant did, is impossible for this Court to say.  Because of this uncertainty on both these matters we are unable to conclude that “a reasonable jury, properly instructed, would, on the evidence, without doubt convict or would inevitably come to the same conclusion”. We are of the view, therefore, that this is not a suitable case for the application of the proviso.

Conclusion

191.  As we have refused to apply the proviso it is necessary for us to consider whether to order a retrial or substitute a verdict of manslaughter. It is the latter course which Mr Ross urges upon us, but one to which, however, we feel we cannot accede.  There have been two trials of this applicant and in both the jury rejected the defence of provocation and in this most recent one rejected the defence of diminished responsibility.

192.  In this judgment we have found nothing in the way the defence of diminished responsibility was left to the jury that would cause us to feel that the jury’s rejection of that defence was unsafe.  In respect of provocation it is by no means certain how another jury would respond to the defence.  It is for a jury to decide what the facts are surrounding this killing and once having so found whether either of these two defences lessens the culpability of the applicant such that he should be convicted only of manslaughter.

193.  We therefore allow the application, treat the hearing of the application as the hearing of the appeal, allow the appeal, quash the conviction and order that the applicant be retried on a fresh indictment.  We remand the applicant in custody pending his retrial.

[1] We note that in revising the defence in England an “abnormality of mental functioning” is defined to specifically include something which “substantially impaired D’s ability … to exercise self-control”.

[2] R v Byrne [1960] 2 QB 396 at page 405.

[3] The New South Wales provision, contained in section 23A of the Crimes Act 1900, has since been amended.

[4] Page 387 of the Appeal Bundle.

[5] Page 415 of the Appeal Bundle.

[6] Page 296 O to 297 B of the Appeal Bundle.

[7] Page 5 M-Q of the Appeal Bundle.

[8] Page 340 of the Appeal Bundle.

[9] Pages 266 B to 268 R of the Appeal Bundle.

[10] Pages 269 S to 270 I of the Appeal Bundle.

[11] Pages 276 P to 278 J of the Appeal Bundle.

[12] Page 283 C-Q of the Appeal Bundle.

[13] The first at page 5 and the second at page 18 of the Appeal Bundle.

[14] Page 17 R-18 A of the Appeal Bundle.

[15] Page 55 M-56 Q of the Appeal Bundle.

[16] Page 51 F-I of the Appeal Bundle.

[17] Page 52 D-G of the Appeal Bundle.

[18] Page 50 M-N of the Appeal Bundle.

[19] Page 10 D-P of the Appeal Bundle.

[20] Page 50 O-P of the Appeal Bundle.

[21] Launder v HKSAR (2001) 4 HKCFAR 457 at page 471 E-F.