HKSAR v. TANG KIN KWONG

CACC 488/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 488 OF 2002

(ON APPEAL FROM HCCC NO. 72 OF 2001)

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REASONS  FOR  JUDGMENT

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Hon Stock JA (giving the Reasons for Judgment of the Court):

1. This applicant was convicted after trial before Tong J and a jury of one count of murder and one count of wounding with intent contrary to section 17(a) of the Offences Against the Person Ordinance, Cap. 212.  On 20 January 2005, we allowed the appeal against the conviction for murder and substituted a conviction for the offence of manslaughter on the grounds of diminished responsibility.  These are our reasons for that decision.

2. The applicant was aged about 50 years of the date of the alleged offences and was a person then of no previous convictions.  He owned a herbal shop in Tonkin Street, Shamshuipo.  His victims ran a herbal shop nearby.  On the morning of 30 December 2000, the deceased, Mr Chan, and his wife Madam Lam were about to open their shop when the applicant approached them with a long wooden pole and set about attacking Mr Chan with the pole.  Mr Chan suffered serious head injuries from which he died on 2 January 2001.  Madam Lam suffered serious injuries too, but she recovered.  The applicant was arrested that day and he told the police that he had attacked the two victims because they had tried to poison him.

The facts

3. In June 1999 a local television station had investigated claims made by the applicant that he could kill cancer by using certain tree roots, and the deceased and his wife had been interviewed and it seems that their responses were sceptical about his claims and the programme was critical of the applicant.  Madam Lam took the view that the applicant had attributed lack of business in his herbal shop to the television programme and to comments which the deceased had made. 

4. The attack which the applicant launched was on any view not provoked by any incident immediately preceding it.  The deceased had been kneeling down to open a shop when the assault upon him was made by the applicant who struck him very forcefully on the head and, according to Madam Lam's evidence, the applicant said, while he was striking them, that Mr Chan and Madam Lam had taken away his business and that they had released poisonous news to the media causing him to lose business.  In the course of his attack, according to her testimony, he mentioned that they had accused him before the media of deception.  When the applicant was arrested the same day – indeed he had urged a nearby shop owner to call the authorities – he told the police that he had made the attack and that the injured couple had tried to poison him with gas by causing it to come through pores in the wall.  The applicant was all the while muttering to himself.

The trial

5. The applicant was not represented at trial.  The trial judge took all proper steps to persuade the applicant that he should be represented and for part of the case counsel instructed by the Director of Legal Aid appeared at trial to offer such assistance as might be needed, the hope of being that if the applicant changed his mind and accepted representation, the trial could continue with the aid of that member of the Bar.  But that facility eventually ceased.

6. The applicant gave evidence on his own behalf.  He admitted attacking the couple.  He said that he did not have many patients at the shop because he had been harassed by people sending poisonous gas to the shop and that this was a scheme in which the attacked couple had taken part.  The gas was being sent through pores in the wall and floor.  He said in his testimony that he had never had an argument with them before and he distanced himself from suggestions that he had had a grudge with them about the television programme.  He said that he had made several complaints to the police about the poisoning but to no avail, so that in due course he had to defend himself – hence the physical attack.  He said that when he carried out the attack he was calm and was not affected by any mental problem.  He had never an intention to kill or to cause really serious harm: that is why he used a wooden pole rather than the metal bar which was to hand.  He insisted that he was not mentally ill.

7. The issues which the judge left to the jury to consider were these:

(1)	Whether it was shown that the applicant had intended to kill or cause serious harm;
(2)	Whether self-defence was disproved, the self-defence suggested being in response to the perceived attempt to poison him;
(3)	Whether provocation was disproved, the provocation being the derogatory comments made in the TV interviews, as well as the used or perceived use of poisonous gas; and
(4)	Diminished responsibility.

The question of the judge’s discretion

8. There can be no complaint about the judge's decision to leave the first three defences to the jury, though there was in this particular case never any realistic chance that any would succeed.  The question in this appeal is whether the judge was correct to call, of his own motion, evidence about the applicant's mental condition and to leave the defence of diminished responsibility to the jury, given the applicant's express disavowal of that defence at trial; and, if so, whether the resulting conviction for murder can be said to be safe when there was no realistic challenge to the diagnosis of two medical officers that at the time of the offences, the applicant was suffering from a disease of the mind which substantially impaired his responsibility for his acts.

9. The medical evidence came from two psychiatrists.  The first, Dr Tso, saw the applicant shortly after his admission to Castle Peak to which institution the applicant was sent upon his arrest.  His conclusion then was that the applicant was suffering from paranoid schizophrenia and when asked questions by the court in the course of his testimony, he said that the criteria for a proper plea of diminished responsibility were fulfilled in this case.  The other psychiatrist was Dr Yuen who had been appointed by the court to conduct an examination and he said that the applicant was suffering from a delusional disorder.  His diagnosis was that at the time of the offences the applicant was suffering from an abnormality of mind, namely the mental disease which was delusional disorder, that substantially impaired his responsibility for his actions.  He, the applicant, knew at that time what he was doing and that what he was doing was wrong but that went to the question of insanity and not the question of diminished responsibility.  He told the court that all along the applicant had insisted that he was normal and that he suffered from no illness.  Dr Yuen was questioned about the truthfulness of the applicant's assertions in examination about his [delusional] beliefs at that time of the killing.  Dr Yuen, who is a highly experienced consultant psychiatrist well versed in psychiatric defences in criminal trials, answered thus:

“I never doubted what he said....   I firmly believe that what he told was indeed what he believed and wasn’t false.”

10. In the summing up the judge, having dealt with all the other defences to which we have referred, told the jury that if they agreed with the medical evidence then the offence was one of manslaughter and not murder.  It was for the accused to prove the defence on the balance of probabilities.  The judge reminded the jury that the defendant himself said that he was calm and sober and was not himself raising the defence but that "… in the light of the circumstances and that the defendant was not represented I felt that I should invite you to consider this issue as if it had been raised by the defence." (page 40).

11. The point raised on this application comes before us by reason of a letter dated 12 June 2003 written by Mr Saw SC who appears for the respondent and who in that letter very properly drew to the court’s attention matters which were of concern or which might be argued to be in the applicant's favour.

12. The first question raised was whether there is indeed a discretion in a trial judge to call evidence in support of a case of diminished responsibility where a defendant has not raised the defence and, as in this case, has expressly disavowed it.  On 23 June 2003 the directions judge decided that in view of the issues raised by that letter and the fact that the applicant refused representation for the purpose of the appeal, an amicus should be appointed and we have as a result submissions from Mr Wong Man Kit SC.

13. The answer to the first question raised is to be found in Jimmy Johnson v The Queen [1983] HKLR 344 where after an exhaustive analysis of cases in this and other jurisdictions, the court held that the trial judge in criminal cases had a discretion to raise the issue of diminished responsibility and call evidence of his own motion and in appropriate circumstances may do so even if that is contrary to the wishes of a defendant.  Such a course will be exceptional and it is a discretion to be exercised with care bearing in mind the factors to which that decision refers including those which may sometimes appear to conflict, that is, the right of an individual to insist upon his own line of defence and the interests of justice.  The court emphasised too that:

“Needless to say every case must stand upon its own facts and, as in all cases where a discretionary power is in the hands of the trial judge, his actual exercise of it may legitimately become the subject of question upon appeal.

It would not be proper for us to attempt to limit a judge in the exercise of his discretion for then it ceases to be one.  But a matter of prime importance which must exercise the mind of the judge called upon to act in circumstances such as those in the instant case is whether or not he would, by calling evidence of the mental state of an accused and against the wishes of that accused, be impinging upon the possibility of an outright acquittal.  This is particularly so when an accused has given exculpatory evidence and the jury might well be influenced on the question of his credibility by the calling of such evidence or indeed on the issue of whether or not he committed the offence complained of.

….

… Inevitably there will be cases – Kooken [1982] 74 Cr App R 30 appears to be a good example – where court will be reluctant to approve the exercise of a discretion which takes away the right of an individual, however mentally impaired, to assert his independence of choice in the very forum where that right is held most sacred.  Undoubtedly the highest court in other jurisdictions have hesitated to recognise such a discretionary power...  The former objection that a finding of guilty but insane left open to the accused no right of appeal since the verdict was then equated with the verdict of acquittal has long since been remedied by legislation.  There remains however the serious objection that introducing the issue in this way against the wishes of the accused may prejudice his legitimate interests if, being fit to plead, he has decided that he wishes to concentrate on rebutting the evidence and gaining an acquittal.  It would also conflict with such a partial defence as provocation since the jury, with such evidence before them, might well be disinclined to give much weight to his testimony.

In a fitting case however, the balance is surely in favour of the public interest as distinct from the interest of the individual defendant. In R v Simpson [1977] 35 CCC 337, Martin JA, considering this very problem, observed:

‘It is not always possible, however, in the administration of the criminal law, to give complete protection to competing interests and the balance must frequently be sought and maintained between them.’

Clearly this is a power which will need to be exercised with circumspection.

There will be cases where the proper exercise of the judge's discretion will favour letting the defendant do what he wishes, and other cases when it will properly be exercised in the public rather than the private interest.  Which way it will be exercised in the individual case will have to be left to the good sense of the trial judge.  Nor can we see that this principle, albeit emanating from the older cases such as Chapman 1838 C & P 558 Holden 1839 8 C&P 607, can reasonably be fettered by limiting it to cases in which the question of the accused’s state of mind has arisen ex improviso.  There will be cases when it is quite apparent from the outset of the trial, and perhaps even before that, that the soundness of the accused’s mind at the time of the event is in question.  We cannot see any good reason why this exceptional discretionary power should not be exercised equally where that is the case as where some late development in the trial has brought the issue to the surface."

14. It is said by Mr Wong that the decision in Campbell [1987] 84 Cr App R 255 was not referred to in Johnson and that it undermines the judgment in Johnson.  We do not, with respect, agree.  The complaint in Campbell was that the judge did not leave diminished responsibility when it was argued that he should have done so.  In that case there was not even a prima facie case of diminished responsibility and the court expressly said:

“if there had...  been prima facie evidence a difficult situation could have arisen.  It is unnecessary for us in this case to attempt finally to resolve that difficulty."

15. Mr Wong then suggests, utilising Campbell for the basis of the suggestion, that given the words of section 3 of the Homicide Ordinance whereby it is provided that on a charge of murder it shall be for the "defence to prove that the person charged is by virtue of the section not liable to be convicted of murder" it is illogical for the court to call evidence of its own motion where the section imposes the burden of proving the defence on the accused.  We do not think that this was the rationale for the court's decision in Campbell: indeed the court expressly said that it was not necessary for it to determine the question of the course open to the judge had there been prima facie evidence of diminished responsibility.  What the court in Campbell said was that the statutory words in question underscored the fact that the defence was an optional defence and that the course a judge should normally adopt was to point out the available defence to counsel “at least in cases where the defendant is represented” (page 260).  We are satisfied that the wording of section 3(2) does not preclude the judge from calling the testimony in those wholly exceptional circumstances where it is appropriate to do so especially in the light of the strict terms of section 3(1) which provides that:

“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….  as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”

16. In this case, a case of unrepresented accused, where the evidence seemed to be all one way, namely, that he was indeed suffering from diminished responsibility, there is on the face of subsection (1) a clear requirement for a verdict of manslaughter.  The burden placed by subsection (2) on the defence does not derogate from the principle that that burden may be discharged regardless of the provenance of the evidence.  In a normal case where the defence of diminished responsibility is run, it matters not that the testimony comes in the course, say, of prosecution evidence from psychiatrists who may be giving evidence on another point.  If in the course of their testimony it is established that the accused was at material time suffering from diminished responsibility, then the burden is discharged.

17. Jovan Damic [1982] 6 A Crim R 35, not referred to in Jimmy Johnson, was a case of an unrepresented defendant who did not wish to set up mental illness as a defence but where the judge was concerned that if the issue was not raised, then an unjust conviction for murder was likely to result.  He called the appropriate evidence, a decision upheld by the New South Wales Court of Criminal Appeal presided over by Street CJ and which referred with approval to the decision in Lo Tin v R [1963] HKLR 903 cited in Jimmy Johnson.  No doubt the concern which motivated the trial judge in Damic was the same which motivated Tong J in the present case.

18. Johnson extensively and thoroughly considered the authorities in other jurisdictions and the different approaches to be found and in a fully reasoned judgment determined that the discretion in the trial judge exists though within principled parameters there set down.  It is a discretion to be exercised with circumspection, the court said, in the light of the facts of each case and with full regard to whether the accused is possibly being deprived of the chance of a full acquittal.  It is an exceptional discretionary power and the court there followed the decision in Chan Ming Luk itself a case in which the authorities were thoroughly considered.

19. We see no basis upon which we could or should depart from Johnson and it remains the authoritative approach to be followed in this jurisdiction.

20. One should note as well that of all the decisions referred to us, none save Damic considered an unrepresented accused.  That is not to say that an unrepresented accused possesses rights and is entitled to safeguards any different from one who is represented, but the judge is naturally going to take into account the fact that the course adopted by an unrepresented accused is likely to be less well-informed than that adopted by a represented one, and is indeed likely to be coloured by the very mental circumstances – if they have persisted – which make the defence available.

21. We are satisfied that not only did the judge have the discretion which he assumed but that in this case he exercised that discretion correctly.  There was no question in this case of the evidence about mental illness impinging on the prospect of an outright acquittal.  There was in reality no such prospect.  The applicant had been seen attacking the two victims without any provocation at all.  The suggested offence offered by the victims in connection with the television programme was long since passed and no jury properly directed was going to accept the defence of provocation.  There was no violence offered to him and therefore no question of self-defence.  He beat the two victims relentlessly and fiercely and his defence did not gainsay that description.

The good character direction

22. There are other points taken upon this application.  The next raised by Mr Saw is that of the good character direction.  What the trial judge said was this:

“The defendant has a clear criminal record, and that is afavourable point when you evaluate his credibility and whether he had the propensity to commit the offences without a proper reason, as he had explained.”

23. It is said by Mr Saw, correctly, that these are rather terse statements and too short in comparison with what is normally required.  We agree.  What would normally be said would be something along the following lines which would make the relevance of good character crystal clear to a jury:

“The defendant has given evidence and as with any man of good character his good character support his credibility.  This means it is a factor which you take into account when deciding whether you believe his evidence.  In the second place, the fact that he is of good character may mean that he is less likely than otherwise might be the case to commit this crime now.”

24. Whilst we think that Mr Saw was wholly correct to draw this issue to our attention, we are satisfied that in the context of this case, the omission or short form used is of little real significance.

The applicant’s grounds

25. The applicant himself raises a number of points in home-made grounds.  They include requests for a number of persons to attend court to testify, including doctors whom he says did not attend to him, and others to produce photographs.  We have examined all these grounds but find nothing in them.

The murder conviction

26. We return therefore to the point of real substance in this application which is the verdict of the jury that the applicant is guilty of murder when the evidence of diminished responsibility was strong and not challenged, save by the unrepresented applicant who insisted that he was mentally sound at the time of the killing.

27. The prosecution stance was not to challenge the testimony of the psychiatrist but to assert that the applicant’s conduct was a calculated and conscious move and that therefore he should be found guilty of murder and not manslaughter on whatever basis.

28. It will be an exceptional case indeed for the court to intervene against the verdict of a jury where there appears to be no misdirection by the trial judge or other irregularity in the trial.  But the court is by virtue of section 83(1) of the Criminal Procedure Ordinance, Cap. 221 required to allow an appeal if it thinks that it should be set aside on the ground that the verdict is under the circumstances unsafe and unsatisfactory.

29. We have given considerable thought to the possible reason for the jury's verdict in the light of the clear psychiatric testimony.  It is difficult of course to be sure, but we discern a number of references in the summing up which might well we think have led the jury to assume that diminished responsibility did not apply if the applicant knew what he was doing.  The judge correctly identified the elements of the defence of diminished responsibility.  However, he said at page 23 of the summing up:

“The doctor took the view that the defence case had satisfied the legal definition of diminished responsibility as his condition had substantially impaired the defendant’s mental responsibility for his act.  Members of the jury, as the doctor said, this would be ultimately a matter for you to decide.

… He [the doctor] stressed that at the time of the offence the defendant's condition would satisfy the definition of diminished responsibility although he would not preclude the possibility of the defendant was said at the time and clearly knew what he was doing and why.” (Emphasis added).

30. And on page 44 of the summing up the judge in a passage to which we have already referred said in this:

“It appeared that the prosecution was submitting to you that even if the defendant was suffering from some kind of delusional disorder, his decision to attack the victims was a conscious and calculated move, therefore he should be found guilty of murder and not manslaughter on whatever basis.”

31. What might well be said is that it was not made clear to the jury that there was no inconsistency between diminished responsibility on the one hand and on the other the accused knowing at the time what he was doing and in engaging in a conscious move.  When the judge sentenced the applicant he said that the “jury by their verdict would have found that the defendant carried out the attack deliberately and consciously”.  Yet that is not conduct inconsistent with diminished responsibility.

Conclusion

32. We were satisfied in the circumstances that the verdict of murder could not properly stand.  We therefore granted leave to appeal and treating the hearing of this application as the appeal, we quashed the conviction for murder and substituted a verdict of manslaughter on the basis of diminished responsibility.  The verdict in relation to the second count is undisturbed.

33. We have thus to deal with the question of sentence.  For this purpose, we ordered the preparation of up-to-date psychiatric reports.  These should include sufficient information to enable the court to determine whether an order under section 45 of the Mental Health Ordinance, Cap. 136 is appropriate and, if so, whether that should or should not be for a determinate period.