HKSAR v. CHEUNG YUI KONG

CACC 362/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 362 OF 2005

(ON APPEAL FROM HCCC NO. 372 of 2004)

______________________

______________________

_____________________________________

REASONS FOR JUDGMENT

_____________________________________

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

1.  On the night of 21 July 2004 Mr LEUNG Chi-chung was with his son, who was the second defendant at trial and to whom we shall refer as "D2 ", at an open space in Wah Shan Tsuen, Sheung Shui.  The applicant approached Mr Leung from behind and stabbed him a number of times in the back and in the abdomen.

2.  The stab wounds which were inflicted on the deceased were described as a 2.5 cm long stab wound penetrating the abdominal cavity by some 10 cm and going to the back of the abdomen; a 2.7 cm long stab wound to the abdomen penetrating the abdominal cavity by some 10 cm and going to the back of the abdomen; a 1.5 cm long exit wound on the right side of the abdomen; a 4.5 cm long curvilinear stab wound on the back, the wound track of which had penetrated through the body and exited the right abdomen, being the previous wound: the unchallenged evidence of the pathologist was that at least 13 cm of the 20 cm length of the blade of the knife used penetrated the deceased’s body and did so with a significant degree of force; and a 2.7 cm long stab wound on the back penetrating the lung.  In addition to these wounds there were bruises and abrasions to both of the deceased’s elbows as well as a 3 cm long cut wound to the tendon of the left index finger compatible with being a defensive injury.

3.  The pathologist's opinion, unchallenged by the applicant, was that the cause of death was stab wounds of the chest and abdomen.  He further opined that the injuries were consistent with having been caused by a knife found on the applicant when he was arrested 40 minutes after the killing.  The applicant admitted having killed the deceased.

4.  The prosecution case at trial was that the applicant and D2 had previously agreed that D2 would lure the deceased to the scene where the applicant would kill him and that they acted in concert. 

5.  Both were charged with murder.  The applicant tendered a plea of guilty to manslaughter which was rejected by the prosecution. They were tried before Lugar Mawson J. and a jury.  On 18 August 2005 the applicant was unanimously convicted of the offence of murder whereas D2 was found not guilty of murder by a majority verdict of 5 to 2 but unanimously convicted of the offence of manslaughter.  The applicant was sentenced to life imprisonment whilst D2 was sentenced to a term of 8 years imprisonment.  The applicant sought leave to appeal both conviction and sentence.  At the conclusion of the hearing, which we treated as the appeal, we gave leave in regard to conviction but dismissed the appeal.  The application in relation to sentence was dismissed.

THE APPEAL AGAINST CONVICTION

6.  Upon his arrest the applicant told the police he had stabbed a person in the course of a robbery.  He was then taken back to his residence for a search during the course of which he informed an escorting police officer that when he had met D2 in a toilet at about 7:45 p.m. that day D2 had told him that he would later be taking his father to a poultry farm and provided the applicant with a knife the handle of which was wrapped with bandage, as well as providing him with additional bandage.  D2 had asked him to request money from the deceased and to stab him with the knife if he refused.  He later had followed D2 and the deceased to the poultry farm where, after D2 had walked away, he requested a loan of $30,000 from the deceased.  The deceased refused.  He stabbed the deceased then departed.

7.  The applicant was subsequently interviewed on two occasions, the interviews being video recorded.  There were discrepancies between what the applicant told the police at the time of his arrest and in each of the interviews.  The applicant gave evidence at trial during which further discrepancies appeared.  Whilst these may well have assisted the jury in their assessment of the applicant's credibility, it is not necessary to detail them for the purposes of the appeal.

8.  In his evidence at trial the applicant testified that whilst they had been together in the toilet shortly before the offence D2 had taken out the knife and asked him to stab the deceased in the waist area.  D2 had begged him to do it as a friend and he, the applicant, had given in to D2.  Despite this apparent agreement he harboured, he said, a ‘secret intention’ which was only to cause the deceased slight injury, lightly wound him so that he would only be hospitalised for a week or two.  He had not communicated this secret intention to D2.  Thus, apart from the fact that the jury would have had to consider, as always, the issue of intention, there was a specific matter that need be addressed, the ‘secret intention’ of the applicant.

9.  Two grounds of appeal are advanced by Mr H. Y. Wong who appears for the applicant in the appeal against conviction.  The applicant is unrepresented in the appeal against sentence.

GROUND 1

10.  The first ground of appeal asserts:

The learned trial Judge erred in his directions to the jury that it was a precondition to the co-accused D2’s guilt on the murder charge only if the jury should be sure that the applicant was guilty of murder.  This is because even if the jury were not sure of the applicant’s guilt on the murder charge because of some specific defence available to the applicant, they could still convict D2 of murder if they were sure D2 had the necessary intent.  However the inevitable effect of the trial Judge’s misdirection was to rule out any sympathetic consideration by the jury of the applicant's defence to the murder charge to the effect that, despite his apparent agreement to carry through D2’s plan to attack the deceased, he had a secret intention only to cause minor injury.  This must have put enormous unfair pressure on the jury to reject the applicant's claim to a lesser intent and to convict the applicant of murder and turned away from a more generous interpretation of the surrounding circumstances of the applicant's attack on the deceased.  An alternative scenario upon which the jury had not been given any direction at all – i.e. -  if at the time of the attack D2 had the necessary intention for the murder of his father but if the jury were not satisfied that the applicant had the necessary specific intent, they could convict D2 of murder but convict the applicant on the lesser alternative.  The learned Judge’s aforesaid direction effectively ruled this scenario out.

11.  The trial Judge directed the jury in the usual terms in regard to the elements of the offence of murder.  The first ground of appeal contends that the Judge undermined the applicant's position when he went on to direct the jury in regard to the findings it was necessary for them to make relative to D2.  What this submission ignores is that it is the appropriateness of the direction in respect of the applicant that is of relevance to this appeal, not of that in respect of D2.

12.  The Judge correctly and succinctly identified the issue which remained, in real terms, for consideration by the jury in regard to the applicant - his intention at the time he stabbed the deceased - saying:

As far as the [applicant] is concerned, there is only one issue: whether at the time of Leung Chi Chung’s killing did the [applicant] have the intention to kill Leung Chi Chung or cause him grievous bodily harm...

Let us now deal with the [applicant].  What was the [applicant’s] intention when he attacked Leung Chi Chung with this knife?…

13.  The Judge was fully alive to the additional issue of the ‘secret intention’.  He specifically directed the jurors in this manner:

But even if you accept what he claimed was his intention - and he put it this way: ‘to lightly wound Leung Chi Chung with the knife so that he would be hospitalised for one or two weeks’ - you will have to decide whether that is capable of amounting to an intention to inflict grievous bodily harm on Leung Chi Chung.  Because if it was, the [applicant] then had the necessary intention to make his subsequent killing of Leung Chi Chung murder.

14.  The jury can have been under no misapprehension as to the issue which need be decided in respect of the applicant. 

15.  The Judge, both in terms and in the general presentation of the summing up, made it clear to the jury that the case for and against each defendant need be considered separately.   No criticism is levelled at the summing up relative to the applicant – nor may any sensibly be made.

16.  In regard to D2 the Judge went on to say:

If you are satisfied of those three matters, then you would have to find that the [applicant] is guilty of Leung Chi Chung’s murder.

If you are so satisfied you will then need to go on to consider the case for and against [D2]. In this case, there is no suggestion and there is no evidence that [D2] himself attacked his father, Leung Chi Chung.  So how then can [D2] be guilty of Leung Chi Chung’s murder?  The law recognizes that there are circumstances in which various people may be guilty of the same crime even though they played different parts in its commission.  In our law, anyone who intentionally assists or encourages the commission of an offence is liable to be convicted of that offence no less than the actual perpetrator.  There are a number of ways in which someone can intentionally assist or encourage the commission of a crime.  One of those ways is where a person intentionally encourages another person to go out and commit an offence.  He too is party to that offence if that other then goes out and commits it. [Emphasis added]

17.  These remarks were effectively reinforced by the Judge saying:

In this case, [D2]... can only be guilty of Leung Chi Chung’s murder if you are sure that the prosecution has proved that the [applicant] was, as the actual attacker, guilty of Leung Chi Chung’s murder and if you are also sure that the prosecution has proved that [D2] intentionally assisted or encouraged or persuaded the [applicant] to kill Leung Chi Chung or to cause Leung Chi Chung grievous bodily harm with the intention that the [applicant] would do so.

18.  The Judge made it quite clear that only after considering the case for and against the applicant should the jury then turn to consider the case for and against D2.  He made it equally clear, and correctly so, that different considerations applied when considering the case for and against D2 as applied when considering the case for and against the applicant.  It follows that the jury was enjoined to arrive at its decision in respect of the applicant without regard to the directions given in respect of D2. 

19.  In so far as the applicant is concerned the jury could only have returned a verdict of manslaughter if it had nurtured reasonable doubt whether the applicant had intended to kill or to cause grievous bodily harm to the deceased. There was abundant evidence before the jury for it to come to the conclusion it did and for it to disbelieve his claim of a ‘secret intention’.

20.  The nature of the injuries which he inflicted on the deceased and the manner in which he inflicted them, irrespective of which of his versions was accepted; the nature of the weapon which he used to inflict those injuries; his acceptance that he had agreed to carry out the attack in agreement with D2; and the instruction he testified having received on where to inflict the injuries so that they proved fatal were all matters which the jury was entitled to take into account in arriving at its decision.

21.  There is no substance in this ground.

GROUND 2

22.  The second ground of appeal relates to the refusal by the trial Judge to admit evidence by a Dr Anita Leung, a psychologist who had examined the applicant.  That evidence was sought to be admitted on the basis that "... the jury would be assisted on the question whether by reason of the applicant's level of intelligence he would have been capable of forming the necessary intent to murder...".  Her report is dated 15 July 2005 the applicant having apparently been assessed the previous day. 

23.  Associated with this ground is an application to admit evidence on appeal – both that of Dr Leung as well as further evidence from a Dr Alexander Lo, a psychologist, who has prepared a report dated 31 May 2007.  The prosecution objects to the admission of the additional evidence. 

24.  The applicant also seeks to expand the basis for the admission of the evidence by complaint about the trial Judge's observation to the jury in course of the summing up that "... nowhere in his evidence does the [applicant] appear able to give a rational explanation as to why he gave in to [D2’s] begging."  It is said that this observation ignores what the applicant said in the course of being interviewed by the police and is unfair to him in the light of the Judge's refusal to admit Dr Leung's evidence.

THE JUDGE’S REMARK

25.  We deal with this latter point first.  The submission takes out of context what the Judge said to the jury.  The full passage, which comes after lengthy quotation of extracts from the cross-examination of the applicant and from answers given in his interviews with the police as to how D2 had instructed him how and where to inflict the injuries, reads:

He repeatedly said in his evidence that he only did what he did because [D2] begged him.  "Please do this for me.  I've never asked you to do anything for me before.  Please do it for me as a friend."

You may agree with me, ladies and gentlemen... that nowhere in his evidence does the [applicant] appear able to give a rational explanation as to why he gave in to [D2’s] begging.  He goes on to tell you that he, in fact, had a secret intention not to injure or kill [the deceased] but only to cause a slight injury.  Please ask yourselves "Does that make sense?".

26.  When the passage is considered as a whole it is clear that the Judge was talking about why the applicant said that he had given in to the persuasion of D2.

27.  It is relevant to note what explanation the applicant had given for his agreement.  He said that he had done so "Because [D2] had begged me about two times...", then  "What caused me to agree?  To give into his begging.  In fact nothing much." and "I said I didn't want to do it.  He begged me.  He begged me twice.  I said ‘Okay’".

28.  In the light of the applicant's assertion that he had agreed to the stabbing after only being asked twice, not only is the Judge’s observation fully justified but the factual basis for the report of Dr Leung who refers to [D2’s] "pressing request" is flawed.

THE JUDGE'S RULING IN RESPECT OF DR LEUNG'S REPORT

The proposed evidence in regard to intention

29.  Prior to the commencement of the trial counsel then acting for the applicant sought a ruling on an application to call Dr Leung as an expert witness for the defence "…to speak about his mental faculties, his ability to cogitate and foresee."  It was specifically accepted that the applicant "…is not insane.  He is not mentally handicapped.... he is not mentally ill.  He is in the band of below average [intelligence]."   It was intended that the evidence would go solely towards the question of whether the applicant was capable of forming the necessary intent.

30.  The judge considered the issue of the admissibility of Dr Leung’s evidence.  He ruled it to be inadmissible.  In doing so he considered a number of English authorities as to the admissibility of evidence relating to the effect of a medical condition upon intention.

31.  That such evidence may be admissible is accepted.  In R v Masih [1986] Crim. L.R. 395 the Court of Appeal observed that the principles on which such evidence might be admitted are simple to state: it is the application of the principles to the particular case which presents the difficulty.

32.  In R v Turner [1975] Q.B. 834 referred to in Masih, the defendant was charged with murder: he admitted that he had killed his girlfriend using a hammer but raised the issue of provocation.  The defence sought to call a psychiatrist to give his opinion, based on information from medical records, the defendant and his family and friends, that the defendant was not suffering from a mental illness, that he was not violent by nature but that his personality was such that he could have been provoked in the circumstances and that he was likely to be telling the truth.  The trial Judge had refused to accept that evidence.  The defendant was convicted and appealed on the basis of the ruling of the trial Judge.

33.  After finding that the psychiatrist's opinion was relevant Lawton L.J., delivering the judgment of the court, said:

Relevance, however, does not result in evidence being admissible: it is a condition precedent to admissibility.  Our law excludes evidence of many matters which in life outside the courts sensible people take into consideration when making decisions.  Two broad heads of exclusion are hearsay and opinion.  As we have already pointed out, the psychiatrist's report contained a lot of hearsay which was inadmissible.  A ruling on this ground, however, would merely have trimmed the psychiatrist's evidence: it would not have excluded it altogether.  Was it inadmissible because of the rules relating to the opinion evidence?

The foundation of these rules was laid down by Lord Mansfield in Folkes v Chad (1782) 3 Doug.K.B. 157 and was well laid: the opinion of scientific men upon proven facts may be given by men of science within their own science.  An expert opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury.  If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary.  In such a case if it is given dressed up in scientific jargon it may make judgment more difficult.  The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves: but there is a danger that they may think it does.

What, in plain English, was the psychiatrist in this case intending to say?  First, that the defendant was not showing and never had shown any evidence of mental illness, as defined by the Mental Health Act 1959, and did not require any psychiatric treatment; secondly, that he had had a deep emotional relationship with the girl which was likely to have caused an explosive release of blind rage when she confessed her wantonness to him; and thirdly, that after he had killed her he behaved like someone suffering from profound grief.  The first part of his opinion was within his expert province and outside the experience of the jury but was of no relevance in the circumstances of this case.  The second and third points dealt with matters which are well within ordinary human experience.... Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life.  It follows that the proposed evidence was not admissible to establish that the defendant was likely to have been provoked.  The same reasoning applies to its suggested admissibility on the issue of the credibility.  The jury had to decide what reliance they could put upon the defendant's evidence.  He had to be judged as someone who was not mentally disordered.  This is what juries are empanelled to do.  The law assumes that they can perform their duties properly.  The jury in this case did not need, and should not have been offered, the evidence of a psychiatrist to help them decide whether the defendant's evidence was truthful.

…

We adjudge Lowery v The Queen [1974] A.C. 85 to have been decided on its special facts.  We do not consider that it is an authority for the proposition that in all cases psychologists and psychiatrists can be called to prove the probability of the accused’s veracity.  If any such rule was applied in our courts, trial by psychiatrists would be likely to take the place of trial by jury and magistrates.  We do not find that prospect attractive and the law does not at present provide for it.

34.  For the purposes of this appeal it is pertinent to note that, earlier in the judgment, the following appeared:

Before this court Mr Mildon submitted that psychiatrist's opinion as to the defendant's personality and mental makeup as set out in his report was relevant and admissible for three reasons: first, because it helped to establish lack of intent; secondly,... We do not find it necessary to deal specifically with the first of these reasons.  Intent was not a live issue in this case.  The evidence was tendered on the issues of provocation and credibility.  The judge gave his ruling in relation to those issues.  In any event the decision which we have come to Mr Mildon's second and third submissions will also apply to his first.

35.  Further assistance on the question of the admission of expert witness testimony on the question of intent is to be found in R v Chard  (1971) 56 Cr. App. R. 268, also a matter where the issue of provocation was before the jury on a charge of murder.  Roskill L.J. in delivering the judgment of the court summarised the medical report by saying:

... Dr Mansbridge was quite unable to say that in the eyes of the law, if I may use a compendious phrase, there was anything wrong with the applicant’s mental state…  Thus there was no defence which could be raised in the nature of M’Naghten insanity or diminished responsibility.

36.  The medical report then went on to comment that "... in the light of this man's personality... there was no intent or mens rea on his part to commit murder...".  On that aspect Roskill LJ said:

... he has sought to say that Dr Mansbridge's opinion on the question of the supposed inability of the applicant to form any intent to kill or to do grievous bodily injury... was admissible.  He put the matter before us in this way.  Whenever, he said, a mental element arises, whether the charge be murder or theft or for that matter grievous bodily harm with intent... and the question arises in which the decision of the jury is difficult because of their lack of experience, the jury is entitled to expert assistance.  Mr Back was unable to cite any authority in support of that proposition, not altogether surprisingly, for with the greatest respect to his argument, it seems to this Court that his submission, if accepted, would involve the Court admitting medical evidence in other cases not where there was an issue, for example, of insanity or diminished responsibility but where the sole issue which the jury had to consider, as happens in scores of different kinds of cases, was the question of intent.

As Geoffrey Lane J. said in the course of argument, one purpose of jury trials is to bring into the jury box a body of men and women who are able to judge ordinary day-to-day questions by their own standards, that is, the standards in the eyes of the law of theoretically ordinary reasonable men and women.  That is something which they are well able by their ordinary experience to judge for themselves.  Where the matters in issue go outside that experience and they are invited to deal with someone supposedly abnormal, for example, supposedly suffering from insanity or diminished responsibility, then plainly in such a case they are entitled to the benefit of expert evidence.  But where, as in the present case, they are dealing with someone who by concession was on the medical evidence entirely normal, it seems to this court abundantly plain, on first principles of the admissibility of expert evidence, that it is not permissible to call a witness, whatever his personal experience, merely to tell the jury how he thinks an accused man's mind - assumedly a normal mind - operated at the time of the alleged crime with reference to the crucial question of what that man's intention was…

Dr Mansbridge is a doctor... but neither he nor anyone else can claim to be an expert on the question of the intent of the ordinary man.  The applicant at his trial stood before the jury as an ordinary man and his intent fell to be judged by them on the facts of the case in the light of what they thought the Crown proved his intent to have been. [Emphasis supplied]

37.  Turner and Masih both were considered in R v Henry [2006] 1 Cr. App. R. 6 118.  At page 123 of the judgment Maurice Kay L.J. said:

In our judgment the evidence... is no more admissible on the issue of intention in the present case than the disputed evidence was in Masih and Coles.  This is not a case of mental illness ...  An intention that someone should be killed is a visceral matter of no great complexity.  In our judgment, it is not a matter which on the authorities, lends itself to expert evidence in relation to a person such as this appellant…

For all these reasons, we are satisfied that the convictions of the appellant not unsafe by reason of the reports... which do not contain admissible evidence on the issue of intention.  Nor, in our judgment, are they admissible as supporting the credibility of the appellant's account of a lack of the requisite intention.  Outside the special area of confessions to which we have referred, it is not generally permissible for a defendant to adduce expert evidence on the credibility of his defence.

38.  The opinion which Dr Leung expressed was summarised by the Judge, accurately and fairly we believe, in the following terms:

Dr Leung is of the view that although [the applicant's] intellectual and cognitive abilities are within normal limits, his practical reasoning and problem-solving activities are inadequate for living in what she calls "complicated contemporary society".

She is also of the view that his analytical thinking, planning problem-solving and decision-making abilities are not well developed, that he is impetuous, that he has a one track mind, that he is unable to anticipate the consequences of his actions, and that when frightened he panics and becomes confused and reacts instinctively.

39.  He may well also have made reference to Dr Leung’s particular comment that:

Moral or justice reasoning involves one’s cognitive abilities, perspectives taking and core values.  It is believed that [the applicant] committed the offence out of his value to help others and to do as he said, as well as his narrow perspective-taking and shortened decision making process.

40.  Significantly absent from her report, and reinforced by the concessions made by the applicant’s counsel at trial, is any suggestion that the applicant was suffering from any form of mental illness, handicap, abnormality or disease.

The appropriateness of a cut off point based on IQ levels

41.  The applicant’s then counsel sought to persuade the Judge that Dr Leung’s evidence also should be admissible on the basis that the applicant’s IQ assessment"... amounts to or could be regarded as something abnormal...".

42.  In the course of her interview with and examination of the applicant Dr Leung administered the Wechsler Adult Intelligence Scale -Third Edition, Chinese version, to the applicant.  She recorded:

He obtained a Verbal IQ of 83, Performance IQ of 91 and a Full Scale IQ of 85.  The test results indicate that his current intellectual functioning lies within the range of Low Average.  There is no significant difference between his verbal abilities and non-verbal abilities.

43.  Masih dealt with a defendant whose IQ was assessed at 72 but did not suffer from any psychiatric illness and was not insane.  The Judge refused to admit the psychiatric evidence which dealt, in essence, with that defendant's strong desire to please and to conform to the expectation of others.  The court held that

Generally speaking if a defendant came into the class of mentally defective with an IQ of 69 and below, then in so far as that defectiveness was relevant to the particular case it might be that expert evidence should be admitted about it.  That was in order to enlighten the jury on the matter that was abnormal, and therefore, ex hypothesi, presumably outside their experience... However, where the defendant was within the scale of normality (albeit, as the appellant was, at the lower end of that scale) expert evidence was not as a rule necessary and should be excluded.

44.  On this issue of IQ the following appears in Henry at p. 123:

This is not a case of mental illness nor is it a case in which the IQ of the appellant is below that considered by the Lord Chief Justice to be the threshold for admissibility in Masih.

Whilst it is true that persons with an IQ as low as that of the appellant form a small part of the population at large, sadly they form a somewhat larger part of those charged with criminal offences.  …  Moreover, it is not without significance that, in any event, the reports... do not opine that the intellectual impairment of the appellant acted or may have acted as a contra-indication of the specific intention.  Indeed, to the extent that they portray the appellant as easily led and ineffective in coping with stress and demands placed upon him by someone... their views are entirely consistent with the prosecution case.

45.  In Hong Kong "sub-average general intellectual functioning" is defined in section 2 of the Mental Health Ordinance, Cap.  136, as meaning an IQ of 70 or below according to the Wechsler Intelligence Scales for Children or an equivalent scale in a standardised intelligence test.

46.  We express reservations about an approach which suggests that an IQ figure should be determinative of the admissibility of expert evidence. 

47.  In his commentary to the report in Masih Professor Sir John Smith noted that in that case:

…the Court adopts a stricter test of normality than that applied in Schultz v R [1982] Western Australian Reports 171.  If the defendant is mentally defective, i.e. his IQ was 69 or below, the evidence may be admitted, but otherwise, apparently not.  This has the advantage of being a clear rule; but it does seem a rather stringent one.

48.  It seems to us that, if relevant to an issue in the case, evidence should be admitted as to afflictions outside the norm about which jurors are not able to draw on their everyday experience and that such evidence should be admitted, if relevant to an issue in the case, even if the abnormality is experienced by someone whose IQ falls above the “cut-off point”. 

49.  In R v Toner (1991) 93 Cr. App. R 382, the issue was the possible effect of hypoglycaemia on the formation of intention.  Russell L.J. said at p. 387:

... we do not know what, if any, effect of mild hypoglycaemia can have upon a man's ability to form an intent, and without that expert evidence the jury would be deprived of assistance in a field where their ordinary experience did not enable them to judge for themselves.

although in Henry the court described Masih and Turner as "... cases on different sides of an identified line.”

50.  In R v Schultz [1982] Western Australian Reports 171 the 22-year-old defendant was described as "of borderline mentally defective intelligence" with an IQ somewhere between 69 and 78: he had been on, what he described as, "the booze" the night before the offence and had also consumed a quantity of alcohol immediately prior to the offence.  The issue of intent was the only live issue at trial. 

51.  His counsel at trial sought to introduce simply the fact of his IQ and not to ask either of the witnesses whom it was proposed to call, a psychologist and a psychiatrist, whether the defendant’s reduced intellectual capacity had any bearing upon his ability to form intent.  The trial judge refused to allow that evidence.  In allowing the appeal and ordering a retrial Burt CJ observed at p. 174:

The jury unaided may safely be left to pass judgement on the ordinary man, notwithstanding the fact, which they can be safely assumed to know, that the “ordinary” man comes in many shapes and sizes.  And in most cases the shape and size of the accused, intellectually, emotionally and otherwise, may be safely left to their unaided judgement.  But in this case they could not, in my opinion, be expected to know by merely seeing and hearing the appellant in the witness box that his intellectual functioning was impaired the extent to be spoken of by the witnesses which he proposed to call.  That evidence if accepted would in my opinion, take the appellant outside the range of the ordinary man and would alert the jury to the fact that the appellant was not "an ordinary man" and that he was in a class apart.

52.  After distinguishing Chard and Turner on facts the Chief Justice went on to consider, at p. 176, the decision in R v Honner [1977] Tas SR 1:

That case is helpful, I think, for the distinction which it makes, it being that when intent is in issue the accused may call expert evidence to establish any abnormal characteristic which he may have or which he may have had at the relevant time which is not observable by and which without instruction is unlikely to be understood by the jury which affects or which at the relevant time may have affected the operation of his mind and to establish, again in general terms, what that effect was or may have been, but it is not permissible to go further and to give an opinion as to whether the act in the particular case was or was not such as to negative a finding of intent.

53.  In our judgment the trial Judge was correct in finding that Dr Leung should not be called to give evidence as an expert as to the issues contemplated.  We say this not because of her assessment of the applicant’s IQ level and the fact that it fell above some cut-off point, but because what she said was not of relevance to an issue before the jury. 

54.  Her report went to the question of why he might more easily have succumbed to the urging of D2 due to what she categorised as a narrow perspective and shortened decision making faculties and, particularly, a desire to help others.  Nowhere did she suggest that this affected what he intended to do when he stabbed the deceased, or that it impaired his ability to form the necessary intent.

Additional evidence from Dr Lo

55.  Insofar as the new report by Dr Lo is concerned, the admission of the new evidence on appeal is governed by the provisions of section 83V(2) of the Criminal Procedure Ordinance, Cap. 221, which was considered by the Appeals Committee of the Court of Final Appeal in CHAN Tung-cheung v HKSAR [1998] 1 HKLRD 36 ar 38.  Litton PJ said:

Had the matter proceeded in the usual way it would have been for the applicant to satisfy the Court of Appeal on several matters.  Firstly, that the evidence it was being asked to receive would afford a ground for allowing the appeal, then to establish that the evidence was “likely to be credible and would have been admissible in proceedings from which the appeal lies”, and finally that there was “a reasonable explanation for the failure to adduce it at trial”.

…

The first matter an appellate court must determine in such an application is whether the “evidence” if received would afford any ground for allowing the appeal.  If this condition is not satisfied it will not be necessary for the court to consider the other matters.

56.  We are not persuaded by the applicant that the admission of either of the reports would afford any ground for allowing the appeal.  The jury had a substantial opportunity over nearly three days of observing the applicant during his testimony as well as watching the video recordings of his interviews with the police.  That was the best possible evidence available to the jury upon which to base their decision as to the applicant's ability to form the requisite intent to murder the deceased.

57.  Moreover, the jury would have been entitled to take into account the conduct of the applicant at the time of the commission of the offence as he described it:  that of stabbing the deceased twice in the back, pursuing him when he sought to make off and then stabbing him twice again in the abdomen. 

58.  The jury would also have been fully cognizant of the fact that it was the applicant's own case that he was able to exercise freedom of choice and his own willpower, an example of which is that although he made a pretence of agreeing with D2 to murder the deceased, he in fact retained a ‘secret intention’ not to do so.

59.  In addition there are, on the face of it, a number of conflicts between the two reports not only in regard to the conclusions at which the respective authors arrived but also in regard to the information provided to them upon which those conclusions rest.

60.  It is said that if the evidence of Dr Lo were admitted, it would show that a characteristic of the pervasive development disorder diagnosed by Dr Lo was an inability to say "no" and that this could go to support the applicant's testimony that whilst he ostensibly went along with what D2 had told him to do, he nonetheless harboured a secret intention to cause only slight harm.

61.  The obvious problem with this is that the conduct of the applicant in stabbing the deceased as frequently had he did, and with the force which he did, and the sites on the body which he chose, and in chasing the deceased after he had already been stabbed, to stab him further, renders the notion that he intended to cause only slight harm one that can carry no weight whatsoever.

62.  The applicant falls at the first hurdle in respect of this issue.

It follows that the application to admit the evidence of Dr Leung and Dr Lo is refused.  In the circumstances, it cannot be said that the conviction is unsafe or unsatisfactory due to the absence of evidence from Dr Leung or Dr Lo.

63.  In the circumstances we gave leave, but treating the hearing as the appeal, the appeal against conviction was dismissed.

THE APPEAL AGAINST SENTENCE

64.  The applicant applies in person for leave to appeal the sentence of life imprisonment imposed upon him.

65.  By virtue of the provisions of s. 2 of the Offences against the Person Ordinance, Cap. 212 that is a mandatory sentence to be imposed on anyone over the age of 18 upon conviction of the offence of murder.  It follows that, by virtue of the dismissal of the appeal against conviction, the sentence is inevitable.

66.  Accordingly, the application for leave to appeal against sentence was dismissed.