HKSAR v. SHEK KA CHUN

HCCC 351/2018

[2019] HKCFI 1323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 351 OF 2018

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R U L I N G

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1.  The defendant in this case is charged with an offence of manslaughter. A jury unanimously determined that the defendant was not fit to be tried.

2.  As a result of his unfitness to stand trial, a hearing is conducted under section 75A of the Criminal Procedure Ordinance (the CPO) on the sole question whether the defendant did the act or made the omission as charged.

3.  A preliminary issue has arisen during the trial and a ruling is required as to whether the defence can raise the issue of self-defence before the jury deliberate its verdict.

4.  In this special hearing the verdict of the jury is to decide if the defendant committed the act as charged or he is not guilty of the charge. There is no verdict open to them to find the defendant guilty. 

5.  The facts that are not in dispute are that the defendant and the deceased Man Ho-nam were both residents at Caritas Cheer Home, a care home for moderate to severely mental handicapped persons.  Both were born mentally handicapped, they were unable to speak but were able to walk and move around freelyon their own.  They were aged 30 and 31 years respectively. 

6.  On the evening of 22 November 2016 at about 8.30 pm at the care home whilst some of the care home residents including the defendant and the deceased were in the common room resting, a loud bang was heard by some of the care home workers. Almost immediately after hearing the sound the care workers found the deceased lying face up on the ground.  Standing nearby to the deceased was the defendant.  There were no visible external injuries or bleeding on the deceased however he was not conscious.  An ambulance was called.  The deceased was taken to hospital.  He remained unconscious and was certified dead two days later on 24 November.  After examination by a pathologist the cause of death was head injuries. 

7.  It is the prosecution case that the defendant did the act that caused the deceased death.  That is that the defendant pushed the deceased and as a result of this push, the deceased fell to the ground, on falling to the ground the deceased hit his head and consequently died from those head injuries. 

8.  The prosecution evidence on the actus reus of the offence, is the act of pushing the deceased.  The prosecution relies wholly on the evidence of the video footage recorded by CCTV which they say captures clearly the defendant pushing the deceased.  This will of course ultimately be a significant question for the jury.  

9.  I have heard submissions from both parties.  Mr Raffell leading Ms Teresa Leung for the defence say that the issue of self-defence should be considered by the jury as there is objective evidence capable of raising that issue.

10.  Ms Crebbin for the prosecution submits that the issue of self defence should not be left to the jury as there is no objective evidence of self-defence. 

11.  Both the prosecution and the defence have relied upon the same authorities in their arguments.  They are: Attorney General’s Reference (No.3 of 1998) [1999] 2 Cr App R 214), R v Antoine [2000] 2 Cr App R 94, R v Wells and Masud; Hone; Kail [2015] 1 Cr App R 402. 

12.  The principle taken from the above cases is that that the issue of self-defence can be raised by the defence if there is objective evidence. 

13.  In a hearing under s.75A of the CPO to determine whether the accused “did the act or made the omission charged as the offence”, “the act” for this purpose refers to the actus reus of the offence and not to the mens rea.  The prosecution is not required to prove the mens rea of the offence of the crime alleged.  Once it is decided that the defendant is unfit at the time of his actions, mens rea becomes irrelevant.

14.  On the trial of such issue it would seldom, if ever, be appropriate for the accused to give evidence (a jury having found him unfit to be tried), but if there is objective evidence (my own emphasis) which raises the issue of mistake or accident or self-defence, then the jury should not find that the defendant did the “act” unless satisfied beyond reasonable doubt on all the evidence that the prosecution have negatived that possibility. 

15.  Objective evidence has been accepted to include a wide range of evidence, such as independent eye witness evidence, CCTV, cell site, crime scene or expert forensic evidence (R v Wells; Masud; Hone; Kail [2015] 1 Cr App R 402p.410 para 15) as well as the background to the incident, the antecedents of the complainants and the circumstances of the fight as evidenced for example, by the injuries (R v Wells p.411 para 17). 

16.  The defence say the objective evidence in the present case are as follows:

(a)  The psychiatrists’ evidence that the defendant suffers from moderate mental retardation and has a mental age of 6 to 9 years.

(b)  Ms Chan Hoi Ling and Mr Ho Chi-wai (workers at the home) who gave evidence to the effect that the defendant tended to retreat, move aside and avoid contact when someone approached him or got very close to him.

(d)  CCTV which shows the defendant going straight to the corner on 2 occasions with no interaction with anyone, including the deceased. 

(e)  Evidence from Dr. Leung a psychiatrist and Mr Chan Kwok-wai and Mr Kwok Chun-yin that the defendant cannot talk and/or has difficulty expressing himself.

(f)  CCTV which shows the defendant at the subject corner of the common room in Caritas Cheer Home initially.  When the deceased approached the corner and became face-to-face with the defendant, the defendant stepped back.  Afterwards, the deceased stepped forward and the defendant’s back was up against the pillar or at least very close thereto.  It was only then that there was contact between the defendant and the deceased. 

(g)  The evidence of Chan Hoi-ling that the deceased liked to scream, pull staff’s clothing and pull his own hair and staff’s hair.

(h)  CCTV which shows that the dynamic of interaction among everyone in the care home was mainly physical where staff often had to push and pull residents around. 

17.  The defence say considering:

1.  the physical dynamic of interaction in the care home where people are often pushed or pulled around;

2.  the deceased’s fondness of screaming and pulling other’s hair;

3.  the defendant’s mentality or tendency of avoiding people;

4.  The defendant’s inability to speak or express any desire for people to stay away;

5.  The deceased’s further approach after the defendant had already stepped back; and there being no or little space for the Defendant to retreat to.

18.  The defence contend that it is entirely possible that the defendant honestly believed it was necessary to defend himself when the deceased got very close to him and that the only thing that the defendant could think of doing to keep the deceased away was to push him.  It cannot be said that the defendant could have walked away to avoid the deceased because at a mental age of 6 to 9 years and being moderately mentally retarded, the defendant might not be able to think of much solution to his problems.

19.  Given the above possibility, the defence say there is sufficient objective evidence to raise the issue of self-defence and the issue should be left to the jury to decide. 

20.  Ms Crebbin for the Prosecution says there is no objective evidence before the court which raises the issue of self-defence.  She says firstly that there is no independent live witnesses who saw the incident occur and no staff member witnessed it.  There is no evidence of injuries on the defendant.  CCTV footage clearly shows the defendant using two hands to push the deceased backwards.  There is nothing in the CCTV footage that shows any evidence of any form of aggression from the deceased.  At the time the deceased was not holding anything to use as a weapon for example when he approached the incident location.  The deceased cannot be seen touching or pulling the defendant’s hair or anything like that – there is no movement of the deceased body which would necessarily have been seen on the CCTV footage if the deceased did such an act.  There is no evidence of any previous altercation initiated by the deceased on the defendant.  In fact the evidence from the care workers at the home is that there has never been any aggression or altercation between the deceased and the defendant. 

21.  Ms Crebbin says any evidence of the deceased pulling hair or or clothes is that he did so to staff and therefore there is no evidence that he did so to other residents of the home.  The admitted facts state according to the mother of the deceased he had never been prone to violence and would not attack other people. 

22.  Ms Crebbin says to claim that there is evidence of screaming or the pulling of hair by the deceased at the time immediately before the incident is pure speculation and should not be left before the jury.  It would be an impossible task to the prosecution to negative what may have possibly happened.  She relies on the passage at 377C in Antoine where the court held:

“But what the defence cannot do, in the absence of evidence to raise the issue, is to suggest to the jury that the defendant may have acted under a mistake, or by accident, or in self-defence, and to submit that the jury should acquit unless satisfied by the prosecution that there is no reasonable possibility that that suggestion is correct.”

23.  It is clear on the evidence before the jury there is no eye witness evidence.  There is no evidence of pulling of hair or clothes on the video.  There is no sound on the video.  There is no evidence of any one present hearing a scream.  Although there is evidence of the deceased previously having pulled staff members hair or screaming, there is no evidence that it is incessant, let alone regular behavior by the deceased.  It is pure speculation that this type of behavior may have occurred which caused the push, if the push was found to have been proved.  What the defence seek to ask the jury is what may possibility have happened.  What may have happened is no more than guessing and it is not objective evidence. 

24.  To demonstrate that the procedure of the prosecution proving the acts done by the accused was a special procedure without the necessity of proving the mental element, the Court of Appeal in Wells at p.408 para 10 said :

“That there is such a bespoke procedure is critical and can be demonstrated quite simply. If, on the one hand, it was necessary for the crown to prove all the ingredients of murder, a paranoid and delusional schizophrenic would be able legitimately to plead self-defence to murder on the basis that he or she truly believed that he or she was being attacked by an alien even though his or her interaction with his or her victim was, in objective reality, entirely benign. Subject to intervention under the Mental Health Act 1983, he would then be free to do so again. In Attorney General’s Reference (No. 3 of 1998), Judge LJ, provided a different graphic illustration of the difficulty (at 223D)

“where on an indictment for rape it is proved that sexual intercourse has taken place without the consent of the woman, and the defendant has established insanity, you should not be entitled to an acquittal on the basis that he mistakenly, the insanely understood or believed she was consenting.”

25.  At 409 para 11 the Court went on to say :

“having provided that example, however, Judge L.J also went on to explain why the requirement to prove that he or she did the act was so important.

“but when an individual surrounded by a group of much larger, aggressive and armed youths, strikes out and lands a blow on one of them who unfortunately falls the ground sustaining a fatal head injury, it would be unjust if he were prevented from inviting the jury to consider that is violence might have been lawful merely because, as a result of insanity, he believed the group of youths was a mob of devils attacking him because [as the defendant in the present case believed] he was Jesus Christ. Excluding this individual’s own damaged mental faculty at the time, the jury might conclude that although he caused death, his actions were not unlawful and so did not constitute the actors rest of murder or manslaughter.”

26.  Despite the detail of the defence submissions what it failed to mention was the evidence by workers at the home that the defendant had been observed to push people away at times.  The evidence of Mr Chan the assistance manager of the home was that if someone gets close to the defendant there is a possibility that he may push that someone, it was a possibility as the defendant did not do it each or every time.  There was no target individual. 

27.  The evidence of Mr Kwok who appeared to have had the most interaction with the defendant as he was responsible for the group which the defendant was assigned in the home said in his evidence the following.  If people did walk close to the defendant he would become nervous and sometimes he would push others.  The push would be all of a sudden with two hands.  The force of the push would depend on his emotion.  If he was agitated at that time the defendant would push with greater force sometimes he would push just like playing with others.  The defendant’s pushing of people increased since August 2016 however he did not know the reason for this but believed it had to do with his emotional state.  He would push both residents and staff. 

28.  From my understanding, the defence case say the push by the defendant if it is so proved, was in self-defence because the evidence shows that he did not like people standing close to him.  The defence say that as the defendant cannot speak, he was unable to tell another person to go away.  The defendant was unable to retreat from the deceased when he was close to him, as he was close to the pillar and had no where to go.  So the defendant acted in self defence by pushing the deceased away.  

29.  Turning generally to the evidence of the defendant pushing people away when they came close to him.  The prosecution has confirmed they are not using this as similar fact evidence to show a propensity that the defendant pushed others away.  So this is not evidence that they rely upon to infer that the defendant committed the act of pushing the deceased.  The prosecution has made it plain that the evidence relied upon of the push is from the CCTV video footage where they say it is clear the defendant pushed the deceased. 

30.  The prosecution says the evidence of the defendant’s previous behavior of pushing people away if they get too close is only before the jury to show that the defendant has the physical ability to push someone away.  It is not to be relied upon as an inference or as evidence proving that because of the past behaviour of the defendant he did push the deceased. 

31.  On the other hand, the defence seek to rely on that evidence and sought for this evidence to be placed before the jury, as evidence of the defendant reacting this way because he does not like people close to him and he cannot tell them to move away as he cannot talk.   He was therefore acting in self-defence. 

32.  On the evidence the reason for the defendant pushing people away is not known.  Clearly the defendant cannot tell anyone the reason as he cannot speak.  There was however some evidence from Mr Kwok that when he asked the defendant why he pushed people previously the defendant mouthed (without speaking words) it was because he wanted to go home. 

33.  For whatever reason the defendant pushed people this is not to be taken into account as this is his mental state.  Even on the assumption the defendant pushed people away because he thinks they are say the “devil” or an alien to take the example given in Wells, the court made it clear that the mental element of the defendant is not to be taken into account.  

34.  The CCTV footage from about 20:25:44 onwards to 20:29 is of most relevance to the proving of the act committed.  It was at this time that the deceased entered the incident spot that is where the defendant was already standing.  From the CCTV footage it can be observed that the deceased and the defendant appeared to be close to one another for approximately two minutes then there was contact between the defendant and the deceased at 20:27:48.  It is at this time that the prosecution says it can be seen clearly that the defendant pushed the deceased. 

35.  The CCTV is unable to capture the deceased actions clearly as it only captures part of his body.  It is from this the defence says something may have happened that caused the defendant to push the deceased.  As I have already ruled it is not for the defence to suggest that the deceased may have caused the defendant to push him because of the deceased’s past behavior that is pure speculation. 

36.  So the question is, can the defence say that he pushed the deceased because he did not like people close to him and he pushed him as he could not speak or retreat.  As is stated in AG’s reference above a defendant should not be entitled to an acquittal on the basis of his own mistaken perception or lack of understanding or indeed any defences arising from his own state of mind unless there is objective evidence. 

37.  Even accepting the defendant does not like people close to him and/or feels threatens and/or reacts by pushing people away this arises from the defendant’s own state of mind.  This is not objective evidence.  I do not consider the defendant’s action of pushing (if it is established) raises an issue of self-defence. 

38.  To take this a step further, if this were a normal trial, where the mental element of the defendant was to be taken into account and the defence was self-defence as he did not like people close to him and/or he felt threatened by the closeness and/or had nowhere to re-treat.  It would in my view still not amount to self-defence as there would be an excess use of force in the circumstances.  There would be no justification for the force used such as to cause another to fall over where there was non-threatening or benign behavior by the deceased. 

39.  On the evidence before the jury I find there is no objective evidence to raise the issue of self-defence, mistake or accident.