HKSAR v. LEUNG WAI CHUNG

CACC85/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 85 OF 1998

(ON APPEAL FROM HCCC 404 OF 1996)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant was tried on one count of murder before Stock J. and a jury. That count particularized that on or about 22nd July 1996 at Tai Kiu House, Lot 41B, No.44, Tai Kiu, Shap Pat Heung, New Territories, he murdered So Sheung-lan. He was found guilty after trial and sentenced to imprisonment for life. He now seeks leave to appeal against that conviction.

2. The facts, briefly stated, revealed that the applicant, a man in his mid-30s, in the course of 1996, was having a relationship with the deceased victim. At the time he was married but he was not living with his wife. On the night of 21st July 1996, the victim was at his house in Yuen Long. In the course of that night he killed her. He then spent time cutting her body into pieces so that he might dispose of it. The next morning he went to work. He went first to a car park in Tsuen Wan and put the victim's arms in a tin, or bin, on the 4th floor of that car park. During the lunch hour of the same day, a matter of 12 hours or so after he had killed her, he went to a bank in Kwai Chung and there he used a card, which she had had at the time he killed her, and withdrew $10,000 of her money. That was on Monday 22nd July. He had been told that on that the day $50,000 would be transferred to her account, that is the one from which he took the money. Every day thereafter he withdrew $10,000 from the account. Each day he disposed of various parts of the victim's body in different parts of the New Territories.

3. The applicant has raised a number of grounds arguing them in person with assistance, where we have called for it, from Mr. McLanachan. He suggests firstly that Stock J., who was also the judge in his first trial in which the jury had disagreed, followed a course which was not proper at the conclusion of that trial. The jury having disagreed by 4 to 2 as to murder, the judge went on to order a retrial on that count. It is the applicant's suggestion, which is quite misplaced, that the judge should not have done so but should have taken a verdict on manslaughter. This misapprehends the proper procedure in such a case. The judge was correct in following course which he did.

4. He then suggests that it was unfair to him that Stock J. presided over both trials. He submits that the judge, having refused to allow evidence as to diminished responsibility from a psychiatrist in the first trial was then in the position in the second trial where he could not, without embarrassment to himself, admit that evidence. This, he says, deprived him of a fair trial. We read into this record the ruling of the judge in this regard in the first trial which is at p.464 to p.478 of the appeal bundle:

"The Issue

The defendant in this case runs three defences. Provocation and diminished responsibility have been highlighted expressly by the parties in their opening addresses to the jury. But in his evidence, the defendant has said that he did not intend to kill the deceased, that the killing was a mistake. I therefore intend to leave to the jury also manslaughter by an unlawful act.

The question which now arises is whether a foundation has been shown upon the evidence that the accused was suffering from a state of mind which was abnormal, and if so, that such abnormality was due to one of the specified causes, in this case disease of the mind. In other words, is that which the doctor has said such as amounts to evidence upon which if accepted, a jury could be justified in returning a verdict of manslaughter based on diminished responsibility. If so, I must leave that issue to the jury, and my own view as to the perversity or otherwise of such a verdict would be irrelevant.

The issue is one which I have raised of my own motion. I have been troubled to ensure that the parameters of the section are not abused; and troubled by considerations of how in the circumstances which have arisen in this case, I would direct the jury about the ambit of the term "disease" in section 3 of the Homicide Ordinance.

In the light of the contentions which have been put forward by the medical evidence, if in fact the directions which I were to give to the jury were to make clear that the condition described by Professor Wong was not within the contemplation of the section, what then, one is bound to ask, is the point of leaving the decision to them? It would mean that counsel, especially counsel for the defence, would be seen to address the jury, perhaps at length in respect of a defence which the trial judge was then going to say, either in terms or by clear implication, was no defence at all on the facts.

The third alternative was simply to leave the matter to the jury on two contending accounts by the psychiatrists alone, one that was saying that the condition was a disease of the mind, the other saying it was not, and asking the jury to sort that out on their own without guiding them as to the meaning of disease. This course did not, nor does it, appeal to me for if it is clear that the condition described is not one which falls within the section, then it is a matter which must be tackled and not left in the air.

Furthermore, if the correct conclusion is that the condition in question is not one contemplated by the section, then it is better that it be made rather than that there should build up some habit of running such defences in every case where provocation is put forward as a defence.

So I raised with counsel two issues. Was there sufficient evidence to warrant leaving the defence of diminished responsibility to the jury, and if so, what was it suggested I should say about the meaning to be attributed to the word 'deceased'?

I yesterday invited counsel to address me on these points and they have done so this morning. The background, put very broadly, is this.

Factual Background

The defendant has said that the killing was a combination of frustrating and infuriating behaviour by the deceased. I shall not rehearse the facts or allegations in full. But suffice it to say for present purposes he was a married man separated from his wife, but had been conducting a clandestine relationship with the deceased for some months, a relationship which he was most anxious to keep from his family and from the villagers in the village where he lived. She was an addictive gambler. He says that he had been a gambler, but he had decided to turn over a new leaf and had been urging her, to no avail, to do the same. She wanted to marry him and move in with him but this he was not disposed to do, at least until their debts were sorted out.

On the fatal night in question, she came to his home in the village and there developed a row. They argued about a number of matters including her gambling and her failure to obtain employment. And she began to shout and abuse him and accuse him of selfishness. She was shouting and he was very angry. He says he grabbed her by the neck because he wanted to stop her from shouting and he was terrified that the neighbours would hear. The row continued. He discovered she had been to Macau and he thought that she had spent the $50,000 which she had so recently borrowed to pay off some debts. And he put his hands around her neck again.

He said in evidence that he had never been so angry before in his life. He let go of her neck. She threatened to reveal to others his affair with her, as well as to reveal a secret which was very dear to him and that he had revealed to nobody else and that he was most anxious that no one, especially his parents, would know about, namely, his wife's former status as a divorcee.

He said in evidence, 'I was in extreme rage. I did not know what to do. I gripped her neck trying to stop her from shouting. I do not know why I continued to grip her neck. The main purpose was to stop her from shouting further.' After the killing he sat for an hour, not knowing what to do. He called no help because, he says, he feared being locked up. In other words, he feared being found out. He also says that he did not intend to kill her.

The Psychiatrist's Evidence

I now turn to the evidence of the psychiatrist. There was much of it and I certainly do not intend to go through it all. I hope that it is not unfair to summarise its effect in this way.

The defendant was, before the incident, normal in the sense that he suffered from no abnormality of mind nor any disease of the mind. He suffered from no personality defect, no paranoia, no psychosis, no brain damage, no chronic alcoholism, no form of depression, clinical or otherwise. Nor was there any such illness after the event although Professor Wong did say that there were probably two or three hours after the killing in which the state of extreme arousal, to which I shall shortly come, continued. He assumes, as he had to, that the account given to him by the defendant was true. What happened, he said, was that the two of them found themselves in an occasion of mutual accusation and provocation.

He then said in that report that:

'The disease of the mind is the state of extreme emotional arousal characterised by the emotions of extreme rage and panic. This disease of the mind temporarily but substantially impaired the defendant's mental responsibility for his act in doing the killing.'

He explained in his oral evidence, with the aid of literature, that at extremes of hyper-arousal, people become disorganised and lose the ability to control themselves.

Thus far, I am bound to confess that it was difficult to see any distinction between what had been said and the defence of provocation. Provocation is conduct which would cause in any reasonable person and actually causes in an accused sudden and temporary loss of self-control, making him so subject to passion that he is not the master of his mind. But I return to the evidence.

In his oral evidence, Professor Wong went on to say that the abnormality of mind was manifested by extreme emotional rage and panic. He was not talking about ordinary rage and panic, he was talking about something more extreme, much more extreme. It was something so powerful as to overcome normal emotional rationality, for example, such as not to harm loved ones. The threat to reveal a secret was a special factor here. It augmented, as I understand the intent of his evidence, the degree of panic.

The extreme arousal, he said, was a transient, severe abnormality which the usual psychiatric classification system did not define as a disease because that classification, or those systems of classifications, tend to deal with the longer lasting states. The fact, however, that there was no classified name for this disease did not alter the nature of the creature. The state of extreme arousal, he said, was a psychiatric disorder and it actually persisted after the killing, until and including the time dismemberment occurred.

He thought it lasted after the killing when the defendant was cutting up the body but it did not last while the defendant stole the deceased's money later that day, nor presumably in the subsequent four days, nor when he cut off her legs 24 hours or so after the killing. The Professor thought that it lasted for two or three hours. Its root was in the limbic system and he described how that system can be stimulated by emotions to the condition in which the defendant found himself.

I pause to comment that the real question, so it seems to me, is not whether the brain or the limbic brain is stimulated by emotions but whether it is stimulated by disease.

Be that as it may, the Professor went on to say that the events which the defendant described led to rage and panic, which in turn led to this transient abnormality of the limbic system. That was the disease. The propensity to come into this state of mind is inherent in the human mind. Underneath human behaviour were physical explanations, and under such behaviour lay the function of the brain. There was a neurological explanation for the state of hyper-arousal.

He then spoke of this defendant having no prior propensity to violence, such people needing particularly high stimulus to break that non-violent mode. He concluded in-chief by saying that in his opinion the abnormality was induced by a disease which was extreme arousal, a recognised psychiatric state.

I pressed the matter in questions which I put to the Professor, for it appeared to me that this was nothing more than a defence of provocation, and if the Professor was saying that all losses of self-control due to provocation constituted diminished responsibility, it begged the question as to whether that as a matter of law could be right. Could the section ever have contemplated this development? Was I being asked to stretch the section to new levels never intended.

The answer to my question was in effect, indeed, in terms, 'yes'. The exchange between the Professor and myself went as follows:

'Court: It follows therefore that what you're saying is that whenever somebody is provoked, an ordinary, normal person is provoked, by words spoken or acts done, into sudden and temporary loss of self-control he at that stage is suffering from a disease of the mind?

A.: Yes, indeed.

Court: It follows therefore that you're saying that whenever an ordinary person suffers a sudden and temporary loss of self-control by reason of words spoken and acts done, he is suffering from diminished responsibility. Must follow?

A. . Yes, it must follow. Yes, indeed.'

In other words, what he was saying was that the loss of self-control in that situation equated to a disease of the mind and diminished responsibility.

Now, Dr Lui gave evidence for the prosecution. I do not intend to deal with that evidence in any detail for the real question I have to address is the effect, not of his evidence, but the effect and parameters of Professor Wong's evidence. It suffices to say that Dr Lui disagreed with Professor Wong, and the disagreement could not have been more stark. He interpreted Professor Wong's evidence as suggesting that anger or extreme anger was a disease of the mind. It was, said Dr Lui, no such thing and he had never heard such a suggestion, save where anger was induced by recognised disease such as paranoid schizophrenia.

What Professor Wong had been addressing, as far as Dr. Lui was concerned was, limbic system included, the normal functioning of human beings and he asserted that arousal and such like emotions were part and parcel of normal human emotions. Intense emotions were within the nature of man and were not per se diseases. The defendant suffered, as far as he was concerned, no disease of the mind. whether at or before the killing.

The Law

I turn now to the law. Section 3 of the Homicide Ordinance provides as follows:

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

It then goes on to provide, subject to the question of the onus of proof, that a person who but for the section would be liable to be convicted of murder shall be liable instead to he convicted of manslaughter.

A number of matters, it seems to me, are clear. It is not sufficient to show that the defendant suffered at the material time from an abnormality of the mind. It is vital that it should be shown that that abnormality was induced by disease or by one of the other causes specified by the section. That list of causes is exclusive. It must be shown that the abnormality was caused by a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury.

That list in itself provides the flavour of and the rationale for the section. The thinking behind the section was one directed at moral responsibility for the act of a defendant. As it is put in Smith v Hogan, Criminal Law, 7th Edition, page 213:

'A man whose impulse is much more difficult to resist than that of an ordinary man bears a diminished degree of moral responsibility for his acts.'

The section, in my judgment, is directed primarily if not exclusively at an understanding and sympathy for those who are vulnerable through inherent or diseased causes peculiar to themselves, even if the disease happens to manifest itself temporarily or spasmodically, but the section is not designed to cover the normal person behaving abnormally through drink, or through jealousy, or frustration, or anger. Such conduct may be covered by other defences such as provocation, but not, in my judgment, by this defence of diminished responsibility.

I comment in passing that Mr. Forrest, for the prosecution, in addressing me today, pointed out that the defence does apply for the benefit of an alcoholic. That may be so in certain cases, but the law, as I understand it, is that an abnormality of mind induced by alcohol is not of itself an abnormality induced by disease. (See Gittens, [1984] QB 698.) Although if the imbibing of drink has reached the stage that the accused's brain has been damaged so that there is gross impairment of judgment and emotional responses, or the accused's use of alcohol is involuntary because he can no longer resist the impulse to drink, the defence of diminished responsibility is available. (See Halsbury 's Laws, paragraph 440, and the notes thereto.)

Now, it does not appear to me to be sufficient in order to leave a matter of this kind to the jury for the court to rely without more on the ipse dixit of the psychiatrist that a condition is or is not a disease of the mind. It is, in my judgment, for the court to determine whether there is evidence that there is a condition which is a disease of the mind, as that term is comprehended by the legislation, and that approach cannot be altered merely by the psychiatrist saying that the condition has its origins in the brain, or in that part of the brain that controls emotions and reactions to those emotions. That much might be said of the effect of drink or passion, or of any human reaction to any external influence.

In R v Kemp, [1957] QB, 399, Devlin J, as he then was, said at page 406:

'I shall say by way of commencement that there is, according to the evidence, no general medical opinion upon what category of diseases are properly to be called diseases of the mind. Both doctors have expressed their views, but they have expressed their views as personal views and not ones for which they can call in aid any general body of medical opinion. Doctors' personal views, of course, are not binding upon me. I have to interpret the rules according to the ordinary principles of interpretation, but I derive help from their interpretations in as much as they illustrate the nature of the disease and the matters which, from the medical point of view, have to be considered in determining whether or not it is a disease of the mind.'

The effect, so it seems to me, of Professor Wong's evidence is this: he is saying that the defendant, a normal person without a predisposition to violence, but without any psychiatric illness or personality disorder, was so aroused by passion that he lost his self-control suddenly and temporarily; that this extreme state of passion and arousal constituted or was manifested by a disease of the mind which has no name.

He referred me to texts which describes stimuli to the brain, which stimuli can produce rage; this in the context of a full discourse on the functioning of the limbic brain. The text to which he refers gives examples of such stimuli: electric stimulation, head injury and a tumour. Those examples, it seems to me, far from supporting the suggestion that the defendant's reactions were diseased, as that term is contemplated by the section, highlighted precisely that which section 3 is designed to protect and that which it is not.

It is concerned with stimuli such as tumours and head injuries; in other words, exceptional and abnormal underlying causes peculiar to an individual and not with the reaction of a normal man to an abnormal situation. In the case of Porter (1936) 55 CLR 182, Dixon J, as he then was, directed a jury as follows (page 188):

'The next thing which I wish to emphasise is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control and impulsiveness are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long-standing.'

And in the case of Carter [1959] VR 105, reference was made to an address by Dixon CJ, as he had by then become, and Sholl J summarised the salient passages thus, at page 108:

'The present Chief Justice of the High Court, Dixon CJ, has, I think, taken a different view of the address which he prepared for the Australian Law Convention during last year. His Honour takes a very much wider view of the application of the defence of insanity. He says there that the reason why it is required that the defect of reason should be from disease of the mind seems, to him, no more than to exclude drunkenness, conditions of intense passion and other transient conditions attributable either to the fault or the nature of man.'

It seems to me that what the Professor is saying in this case is no more than that the defendant was suffering at the material time from intense passion, and that his brain in that condition caused him to behave as people in states of intense passion will behave, and he seeks then to describe that condition as a disease or a manifestation of a disease which he is prepared to call a state of extreme emotional arousal.

Although it is urged upon me that what he is saying is that there was here a state of extreme passion and not just passion, the reality is that what is being described is that condition of an ordinary man contemplated by the defence of provocation; in other words, a sudden and temporary loss of self-control which any reasonable person would suffer or may suffer, having been provoked by words or actions, thus making him so subject to passion that he is not the master of his mind.

It has nothing really to do with this defendant at all in the sense that there is or was nothing peculiar to him that produced that condition. It is inherent in all of us. It is a condition of intense passion which Dixon CJ suggested, and I most respectfully agree, is not a condition which is contemplated by this section or sections with essentially the same wording as a disease of the mind. Indeed, Mr. McLanachan this morning conceded, as I think he was bound to do, that it was not being suggested that the condition in this case amounted to anything more than would justify a finding of manslaughter by provocation. In any event, if there is something beyond that, I pause to make this remark: that if a reasonable man would not have reacted as did the defendant, and provocation therefore does not run, how can it then be a defence of diminished responsibility for the defendant to say, 'But I lost my control to a degree greater than the reasonable man' , unless he says that he did so because of some pre-existing disease or disability?

What Mr. McLanachan says is that there is no reason in logic why the two defences of provocation and diminished responsibility, predicated on the same factual basis, should not run together, which I suppose to mean, if he is right, that they can always now be run together.

I do not agree. If it is right to say that the very use of the phrases in the section are such as are intended 'to exclude drunkenness, conditions of intense passion and other transient conditions attributable to the nature of man', then it seems to me that it is right in this case to exclude the state of extreme arousal from the grasp of the section, for what we are talking about in this case is an allegation of loss of control because of intense anger or passion, and to say that the section embraces that condition or can embrace that condition as a disease of the mind is to extend the arena in which that section was placed, to cover conduct by normal people in situations for which the section and its rationale was never intended.

Insofar as it might be said that there ought surely to be some recognition by the law of a lesser culpability for those who are in a state extreme arousal by reason of things said and done, and who in such circumstances lose their self-control, the answer is that there is such recognition and it lies in the defence of provocation. The professor's arguments, with respect, add nothing to that defence.

To extend section 3 of the Ordinance to cover the same ground is not only to distort the section, but it is also unnecessary and can serve only to confuse. It would also serve to allow in through the back door the evidence of psychiatrists upon straightforward issues which, within the boundaries of the defence of provocation, are well within the competence of juries to decide.

Accordingly, in my judgment, the section does not cover and cannot cover the condition which the Professor has described, and in my judgment therefore there is shown no foundation in this case for the defence of diminished responsibility.

I have given some thought to the proper approach to take, namely, whether to withdraw the issue from the jury and tell them that they are not to consider it, or whether to tell them, in the course of summing-up, merely that the state of extreme arousal is not, in law, a disease of the mind. To withdraw at this stage this defence after it has been canvassed for so long before the jury carries with it a tactical danger; tactical, I mean, in terms of the interests of the defendant. It might be thought that there was a danger that by doing so the impact will somehow undermine the efficacy of the defence generally, and of the defence of provocation in particular.

Mr. McLanachan prefers me to take the bull by the horns and withdraw the matter, which is not to say, of course, that he accepts the merits of my decision on the law. I think he is right, with respect, for it otherwise places him in an impossible position as far as concerns his speech to the jury, and merely delays such impact as my view of the law which I am bound at some stage to convey will have when ultimately I do express it.

I shall use an appropriate formula to press home to the jury that my decision is not one which attacks the evidence of the Professor on the merits, but which addresses the question whether his evidence amounts to or can amount to diminished responsibility within the law as the law is framed, and I shall emphasise how important it is that they should recognise the fact that the defence of provocation stands fully before them and is entirely unaffected by my ruling."

5. We have cited the whole of this extract this as we are satisfied that we would not put the matter better or more correctly. The judge made an exemplary ruling in this regard. There was clearly no proper evidence to go before the jury as regards to the defence of diminished responsibility. That being so the judge would, of course, have taken the same view in the second trial as he had taken in the first trial and, it was a perfectly proper view to take. There is nothing in the suggestion that the judge was somehow prejudiced and that this led to unfairness in the second trial.

6. The applicant in his third ground seeks to argue that the revised psychiatric report in the second trial should have been admitted. He says that he had, by then, revealed a secret about which he had heretofore kept silent about, which was the marital status of his wife prior to their marriage, and suggests that this was a further factor which should have influenced the judge to admit the psychiatric evidence. This matter must be put into the perspective of the second trial. It is true that Mr. McLanachan, who appears to assist us today and who appeared at the second trial, did initially seek to tender psychiatric evidence going, not to diminished responsibility, but to the defence of provocation. However, that course was not pursued. Mr. McLanachan, after having obtained an adjournment and having fully considered the matter, said to the judge, "As a result of that, it has been decided between myself as the lawyer and him as the psychiatrist that, although we shall be making motion as we did on the last occasion on this particular background, that we shall not be running it on the basis of a special characteristic or peculiar characteristic for which the jury would want assistance from a psychiatrist."

7. The matter not having been pursued, nothing can now be made of it before this court.

8. The next matter is of no merit at all. It is suggested that the jury must have failed to understand the applicant's evidence which related to the reason he kept the secret about his wife's marital status until late in the proceedings. There is nothing in this suggestion.

9. The applicant argued in his fifth ground that the judge had made unfair remarks, in particular about his awareness of the $50,000 that was in the deceased's account and his withdrawal therefrom. The applicant seeks to traverse the evidence here suggesting that the summing-up was, in this regard, unfair. There is, we have no hesitation in saying, no warrant for such suggestions. The trial judge reviewed the facts at length and with exemplary fairness.

10. The applicant in his sixth ground criticizes the ruling on provocation that was given by the judge. We can only say that we have read that direction and it was entirely in accord with the law as we understand it and we reject without hesitation the applicant's suggestion that the judge was somehow in error.

11. In his seventh ground, the applicant again seeks to traverse the evidence arguing that there were facts which should have raised doubts in the jury's mind and that these were not given proper consideration. Matters of fact are essentially for the jury. It is for them to determine the weight which they should be given. These matters cannot now properly be canvassed before this court. Again, in this regard, the applicant argues that the judge was unfair. We repeat that we do not agree.

12. There is a suggestion in this ground as there is in the eighth ground that the prosecution had failed to produce evidence relating to the financial affairs of the deceased although ordered to do by the judge. Mr. McLanachan has made it plain that the prosecution did produce such documentary evidence as they had, and that this did not take the matter further forward.

13. We take together the ninth, tenth and eleventh grounds.

14. In his ninth ground, he suggests that had he had seen the videotaped statement early he might have endeavoured to make amendments to it.

15. In his tenth ground, he criticizes the way the evidence of the younger sister was dealt with saying that the jury might have gained the wrong impression from it.

16. In his eleventh ground, he canvasses the evidence that related to the gambling to which, it was said he was addicted and to the gambling in which the deceased indulged over the last months of her life.

17. In all three grounds he is seeking to argue matters of evidence which were essentially for the decision of the jury and are not properly raised before this court.

18. He finally suggests that the judge was prejudiced against him and that this led to an unfair trial. We have read the lengthy summing-up. There is no merit of any sort in this suggestion. It was fair throughout.

19. The application has no merit and it is, therefore, dismissed.