HKSAR v. LI TIM CHUEN

CACC 564/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 564 OF 2001

(ON APPEAL FROM HCCC NO. 298 OF 2000)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving reasons for judgment of the Court):

1. The applicant, Li Tim-chuen was convicted after trial before Pang J and a jury on a charge of murder and was sentenced to life imprisonment. He sought leave to appeal against conviction.

2. On 26 June 2003, we dismissed the leave application and indicated that the reasons would be handed down in due course. These are the reasons.

Background

3. The victim, Ku Hang-fong and the applicant were both working at the Food and Environmental Hygiene Department (the Department). It appeared that neither the applicant nor the deceased was easy to get along. There was evidence that they were on bad terms with one another. The applicant had indicated to his supervisor that once he had collected his pension, he would seek revenge.

4. The applicant retired from the Department after 42 years of service. He started his pre-retirement leave on 9 February 2000 and was on official retirement by early May 2000.

5. On 13 June 2000 shortly before 9 a.m., the applicant returned to the office of the Department to get back some travelling expenses after making an appointment with his supervisor. According to the supervisor Mr. Yuen Kam-wah, when the applicant arrived, the victim was also in the office, but they did not talk to each other. The applicant stayed in the office for about 2-3 minutes and then left.

6. Shortly after 4.30 p.m. on the same date, the applicant attacked the victim at a bus stop in Factory Street at the junction of Tai Tak Street with a fruit knife. The attack was described as "frenzied, mad, crazy". He stabbed the victim indiscriminately, but mainly aiming at her neck and abdomen. After the victim collapsed, the applicant used the same fruit knife to stab his own abdomen several times.

7. Some Hawker Control Officers subdued the applicant after the applicant was kicked and the knife fell off his hand. The police soon arrived and ambulance was summoned to take both the applicant and the victim to the hospital.

8. The victim underwent an emergency operation and developed cardiac arrest. She died at 6.50 p.m. the same date. The cause of death was multiple stab wounds. There were a total of 11 stab wounds, 11 cut wounds and a number of abrasions. Many of the wounds were inflicted when the attacker was in front of the victim.

9. Before the applicant was taken to the hospital, he was arrested and orally cautioned. The applicant appeared to be conscious but in obvious pain. The arresting officer said he thought the applicant's life was in danger. The applicant did not respond to the caution.

10. Emergency resuscitation was performed on the applicant and he was then admitted into the hospital in a coma.

11. Two days later on 15 June 2000, the police interviewed the applicant with permission from the doctor in charge of him. The interviewing officer thought the applicant was fit enough to be interviewed.

12. The interview commenced at 2.15 p.m. and was video recorded. It was suspended at 2.24 p.m. for the applicant to take instructions regarding whether a lawyer would be available. The interview resumed after 4 p.m.

13. In the interview, the applicant admitted to have planned to kill the victim for a few months. He said he had been suffering and had tolerated the victim for 10 odd months at work. He said he tolerated her to avoid early dismissal which would have caused him loss of tens of thousands of dollars.

14. The applicant was asked why he harboured grudges against the victim. He then listed a number of incidents, including:

(i) Once, when he was waiting for a bus with the supervisor, the victim said he was a bad man and was lazy;

(ii) When the victim invited the applicant to play mah-jong, the applicant flatly refused;

(iii) When the applicant took off his shoes and socks to get rid of some sand, the victim complained and said there was an unpleasant odour while completely ignoring the fact that she herself was a cigarette smoker;

(iv) When the applicant was filling a spray bottle with poisonous liquid in connection with his work, the victim deliberately approached him and examined how he did it in a very bad manner; and

(v) There was also the occasion when the victim discarded a plastic bucket belonging to the applicant and refused to take it back to him.

15. The applicant also said the victim must have done things that he would not be aware of as others would not tell him.

16. The applicant said when he returned to the office in the morning on 13 June 2000 to get back $20 odd travelling expenses, he saw the victim. However they did not talk to one another and he did not even notice what she was doing.

17. In the afternoon on the same date, he bought the fruit knife from Jusco Department Store for $29 to kill the victim. He said he had been planning that for a few months. He then took a tram to the scene where he expected the victim to appear. He said it was her habit to take that route and he had seen her walking past in the vicinity before.

18. When the applicant saw the victim, he attacked her. The applicant said his first stab was aimed at her throat, as he was most sober at that time. He then stabbed downwards towards her abdomen. He also said: "At that time, I had already gone mad. As I said, I intended to kill myself too. You tell me whether I had gone mad."

19. The applicant objected to the admission of the records of interview (which contained the matters we have just set out) as evidence and following a voir dire, the judge ruled such records admissible.

20. There was also evidence from the supervisor to the effect that the applicant was a man who kept things to himself and could not communicate well with his colleagues. He would sometimes write letters to the Commissioner of the Department or to the British Consul. He thought he was unfairly treated. He sometimes thought that others would frame him. He was also a person who 'bottled up' his feelings.

21. The applicant did not testify in his defence. He called a psychiatrist, Dr Chung as his only defence witness. Although Dr. Chung admitted that he had only seen the applicant once at the Lai Chi Kok Reception Centre and had had no opportunity to monitor the applicant or to speak to his family members or close associates, he was able to say that the applicant was suffering from early stage dementia and his attempt to stab himself was consistent with such disease.

22. Dr. Chung said early stage dementia was characterized by multiple cognitive impairments. There would be impairments to the applicant's ability to organize and to plan, to his control of emotions, to his concentration, to his ability to deal with changes and stress and to his memory functions.

23. Dr. Chung said dementia was a disease of the mind and was usually found in the age group of 60-65. It may be activated by psychosocial problems such as retirement and a patient is prone to emotional outbursts.

24. The evidence of another psychiatrist, Dr. Lui and a clinical psychologist, Miss Lam called by the prosecution in rebuttal contradicted the evidence of Dr. Chung.

25. Dr. Lui had been monitoring the applicant and had examined him on a number of occasions. Dr. Lui concluded that his conditions did not support a diagnosis of dementia. He said the central feature of a person suffering from dementia was a global decline of the intellectual abilities but there was no such appreciable decline on the applicant.

26. Dr. Lui had performed a "mini-mental state examination" on the applicant and the score was 29 out of a possible 30. He said only those who score 20 or below would be suffering from dementia.

27. Dr. Lui however agreed that early dementia was not easy to detect. He also said that the applicant had difficulty in controlling his emotions and had broken down in tears on several occasions. His conclusion was that the applicant in fact did not suffer from dementia or any other form of psychiatric illness.

28. Miss Lam had performed a series of tests on the applicant to evaluate his cognitive functions and found that the applicant was of low average intelligence. In the "Wechsler Adult Intelligence Scale", the applicant scored 80 when an average person would score 100. The applicant also did poorly in the "Dementia Rating Scale" which was a test of abstract thinking. The applicant's performance in the memory test was also sub-average.

29. Miss Lam's conclusion was that the applicant was a person of low average intelligence. He would rank 91 out of a class of 100.

30. From the way in which the defence was conducted for the applicant, it appeared not in dispute that he had unlawfully killed the victim. It was not even disputed that he had the intention to kill or cause grievous bodily injury to the victim at the time of the killing. The defence put forward was one of "diminished responsibility" and/or "provocation" which, if successful would have the effect of reducing the charge of murder to manslaughter.

Grounds of Appeal

31. Mr. Duncan, on behalf of the applicant raised two main grounds of appeal. First, he suggested that on the issue of provocation, the judge had failed to properly explain to the jury the meaning of provocation and to direct them on the unique personal characteristics of the applicant.

32. Secondly, Mr. Duncan said the judge had failed to give proper directions to the jury on the weight to be given to the applicant's admissions made at the interviews in the light of his prevailing physical condition. He argued that the judge had wrongly directed the jury by saying:

"But, if, in the end, you are sure the admissions were made and are true you are not then entitled to disregard them just because they defendant was not informed of his right."

33. It was also suggested (as a third ground of appeal) that the question raised by the jury in the course of their deliberations gave rise to doubts as to whether the critical issues had been satisfactorily considered and determined and therefore, in the circumstances, the conviction against the applicant was unsafe and unsatisfactory.

34. We first deal with provocation. Section 4 of the Homicide Ordinance Cap 339 provides: -

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

35. Provocation under section 4 of the Homicide Ordinance gives rise to two issues:

(i) whether things done or said or both caused the accused a sudden and temporary loss of self-control; and

(ii) whether the things done or said or both would have caused a reasonable and sober person of the accused's age and sex to do as he did.

36. It is well established, at least in Hong Kong, that the personal characteristics of an accused are not relevant to the power of self-control to be expected of a reasonable man.

37. Stuart-Moore VP in HKSAR v Wong Hing Piu [2003] 1 HKC 373 had thoroughly examined the issue. Reference was made to the head note of Luc Thiet Thuan v R [1997] AC 131 at 132A-B in these terms:

"...the reasonable man referred to by section 3 of the Act of 1957 and section 4 of the Ordinance was a person who shared such of the individual characteristics of the defendant as the jury might consider would affect the gravity of the provocation to him but had the power of self-control to be expected of an ordinary man or woman, or young person, as appropriate; that there was no basis upon which mental infirmity (sic) on the part of the defendant which had the effect of reducing his powers of self-control below that to be expected of an ordinary person could, as such, be attributed to the ordinary person for the purposes of the objective test in provocation;...."

38. In Luc Thiet Thuan (supra), the Privy Council by a majority decision (Lord Steyn dissenting) held at 144:

"there is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation."

39. By a majority decision in R v Smith (Morgan) [2000] 3 WLR 654 (Lord Hobhouse and Lord Millett dissenting), the House of Lords in England refused to follow Luc Thiet Thuan. Lord Slynn said at p 661F:

"In my opinion justice requires that personal characteristics should be taken into account in the way I have indicated unless the section precludes it. In my view it does not. Accordingly I agree with the opinion of Lord Steyn in Luc Thiet Thuan v The Queen [1997] AC131. In my opinion the Court of Appeal in the various cases to which I have referred were right to take the view that personal characteristics other than age and sex could be taken into account when considering whether the reaction to the provocation was that of a reasonable man. It follows that I also agree with the judgment of Potts J on this point in the present case."

40. Luc Thiet Thaun is binding on this court. The Court of Final Appeal said so in Kong Kwong San v HKSAR FAMC No. 4 of 1999 at page 3 of its judgment:

"In our view, Luc Thiet Thuan is wholly convincing, and there is no reasonable prospect of the Court of Final Appeal disagreeing with the Privy Council on the point in question. It should be mentioned for the sake of completeness that in following Luc Thiet Thuan the Court of Appeal was not proceeding merely on the basis that it was bound by that decision. It said in terms that it also preferred the thinking in that case to that in Smith."

41. Mr. Duncan accepted that Luc Thiet Thuan (supra) was binding and should be followed. He however argued that the personal characteristics of the applicant were nonetheless relevant to "the gravity of the provocation" to the applicant to decide if he in fact had a sudden and temporary loss of self-control.

42. In Professor A.J. Ashworth's article "The Doctrine of Provocation" [1976] C.L.J. 292 at p. 300 which was referred to both in Luc Thiet Thuan (supra) and Wong Hing Piu (supra), (and which appeared in Mr Duncan's list of Authorities), there appears the following passage:-

"The proper distinction...is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not."

43. With respect, whether the applicant suffered a sudden and temporary loss of self-control because of things done or said or both was a question of fact for the jury to decide. The judge had properly identified this issue to the jury. The jury had been reminded to take into account all the evidence, including those that the judge had not mentioned.

44. The judge had pointed out to the jury that the applicant was a man who kept things to himself and could not communicate with his colleagues well; that he would sometimes write letters to the Commissioner or to the British Consul; that he thought others would frame him.

45. The judge had also referred in detail to the evidence of the psychiatrists and the clinical psychologist on their findings on the applicant. If the "characteristics" of the applicant were relevant to the issue of whether the applicant had suddenly and temporarily lost his self-control, those "characteristics" had been properly drawn to the jury's attention.

46. Mr. Duncan, however, suggested that the judge should have mentioned to the jury that the said "characteristics" of the applicant could have enhanced the "gravity of the provocation" on him and therefore could have made him more susceptible to it.

47. Not every "characteristic" of an accused is relevant to the issue of provocation. Mr. Duncan relied on those characteristics set out in paragraph 20 above.

48. In our view, there was simply no basis for the suggestion that those characteristics would or might affect the gravity of any provocation or would in any other way rendered the applicant more susceptible to provocation. There was simply no valid basis for Mr. Duncan's suggestion. (We will later turn to the question whether there was any act of provocations in the first place).

49. Apart from Luc Thiet Thuan (supra), Smith (Morgan) (supra) and Kong Kwong San (supra) Mr. Reading for the respondent also referred us, in his written submissions, to R v Niewell (1980) 71 Cr App R 331; R v Ahluwalia (1993) Cr App R 133. These cases all have a common feature, namely medical evidence was adduced at trial with a view to establishing that the power of self-control for the defendant was lower than that of an ordinary person.

50. Mr. Reading might have over-stated the position in suggesting that medical or psychiatric evidence must be adduced before any special characteristics of the defendant could be relied on, but there must be proper evidence to demonstrate how the special characteristics of the defendant were relevant to the issue of provocation. Without such evidence, the special characteristics were not relevant.

51. We now turn to the question whether there was any act of provocation at all. The issue of provocation will only arise if there are things done or things said or both which cause the defendant a sudden and temporary loss of self-control. The things done or said may be done or said by the deceased or anyone else: R v Davies [1975] Q.B. 691; R v Doughty 83 Cr App R 319.

52. There must be some evidence of a specific act or words of provocation resulting in a sudden loss of self-control. (see R v Acott [1997] 1 W.L.R. 306 per Lord Steyn at p. 313)

53. There was no suggestion that anyone else had done or said anything to provoke the applicant. Did the victim do or say anything to provoke him?

54. In the interview with the police, the applicant mentioned a few incidents of conflict between himself and the victim. He had not specified when exactly those incidents occurred but they must have occurred prior to his retirement in February 2000. There had been a lapse of a few months when the applicant did not see the victim at all until 13 June 2000.

55. However, the chance meeting in the morning on 13 June 2000 was said to constitute some sort of provocation in the form of a "last-straw". According to Mr. Yuen Kam-wah, the victim just happened to be present in the office. The applicant and the victim did not talk to each other and the applicant only stayed for 2-3 minutes.

56. In the interview with the police, the applicant also confirmed that he did not talk to the victim in the morning on 13 June 2000 and he did not even notice what she was doing. How such a chance meeting in the office (or even the meeting at the bus stop) could then be put forward as provocation in the form of a "last-straw" was difficult to comprehend.

57. There was simply no evidence of any specific act or words of provocation; a fortiori, there was no evidence of any sudden and temporary loss of self-control arising out of provocation.

58. We do not agree with the suggestion of Mr. Duncan that the chance meeting in the morning could be an act of provocation because the meeting might have brought back past memories.

59. A planned attack because of past grudges and disputes must be distinguished from an attack under provocation. The evidence at the trial, far from indicating a sudden and temporary loss of self-control, showed that the applicant's acts were premeditated.

60. The applicant had indicated to his supervisor that once he had collected his pension, he would be seeking revenge from the victim. In the interviews with the police, he admitted to have planned the attack for a few months.

61. After the chance meeting in the morning at about 9 a.m., the applicant went to buy a fruit knife and waited for the victim where he expected her to appear.

62. "Provocation" is a relatively simple concept (compared with some other legal concepts). If provocation is a live issue, a judge can explain to a jury its meaning in layman's terms as suggested by Devlin J in R v Duffy [1949] 1 All E.R. 932, as cited by Lord Goddard C.J. in R v Whitfield, 63 Cr App R 39 at 42, namely:

"Provocation is some act or series of acts done or words spoken by the deceased [or by someone else] to the accused which would cause in any reasonable person and actually causes in the accused a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind."

63. The learned judge, while not using these exact words, adequately conveyed the meaning of provocation to the jury. However, in our view, the issue of provocation did not arise at the trial and should not have been left to the jury at all in the first place.

64. We now deal with the second ground. The circumstances in which the applicant was interviewed had been strongly emphasized to the jury. They were reminded that it was for them to decide if the applicant made any admissions and if so whether such admissions were true.

65. Mr. Duncan was right in suggesting that even if the jury was satisfied that the admissions were made by a defendant and were true, it was still for them to decide what weight to attach to the admissions.

66. Mr. Duncan suggested that the judge had wrongly directed the jury that they must have regard to the admissions if they were satisfied that it contained the truth. With respect, the judge did no such thing.

67. The passage objected to by Mr. Duncan indicated that the judge told the jury that they were not entitled to disregard true admissions made by the applicant just because he was not informed of his rights. It was not a direction that they must act on it.

68. On the admissions by the applicant, the judge directed the jury in the following terms:

"Now, in deciding whether you can safely rely on the admissions contained in the statement, you must decide two issues: firstly, did the defendant in fact, make the admissions? If you are not sure that he did, you should ignore that. If, however, you are sure he did, then, two, are you sure that the admissions are true? When deciding this, you should have regard to all the circumstances in which you find the admissions were made, and consider whether they were or may have been any circumstances which might cast doubt on the reliability of those admissions.

In addressing the second issue, whether the admissions are true, decide whether they were or may have been made or given as a result of oppressive or improper conduct on the police part. If, indeed, the defendant was not in sufficient command of his senses, because of his physical condition or because of his drug treatment, then you may think, it is unsafe to rely on the record of interview. It is for you to assess what weight should be given to the admissions. If, for whatever reason you are not sure that the admissions are true, you must disregard them. If, on the other hand, you are sure that they are true, you may rely on them. (Emphasis supplied)

...Now, what should you do if the police have breached these rules? Your approach should still be to ask the two questions which are posed for your consideration. Namely, whether the defendant in fact, made the admission in the records of interview and if so, whether they are true. In deciding whether the police have told you the truth and whether it may be the case that the defendant was not fully aware of his rights, look at all the circumstances including the fact that the officer might have breached the rules.

But, if, in the end, you are sure that the admissions were made and are true, you are not then entitled to disregard them just because the defendant was not informed of his right."

69. With respect, the judge's direction on the admissions by the applicant was comprehensive, fair and correct. Mr. Duncan's suggestion that the judge had directed the jury that "they must have regard to the admissions" was taken out of context. The attack was completely unjustified.

70. As to the third ground of appeal, the jury did raise a number of questions in the course of their deliberations. Those questions had been properly identified. The judge, having had discussions with counsel, gave further directions to the jury. The jury was satisfied with the further directions and they returned their verdict after further deliberation.

71. There was no basis for the suggestion that the questions raised by the jury somehow rendered the verdict unsafe or unsatisfactory.

Conclusion

72. None of the grounds put forward by Mr. Duncan caused us any concern. In our view, the applicant was properly convicted of murder. The application for leave to appeal against conviction was therefore dismissed.