HKSAR v. TSUI CHU TIN JOHN

CACC 401/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 401 OF 1999

(ON APPEAL FROM HCCC 412 OF 1998)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

The facts

This applicant was convicted upon an indictment which charged him with murder. It was common ground that on 18 July 1998 he killed Miss Chan Yin-cheung. The true issue in the case was whether at the time he killed her, he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his act; in other words, whether he was a person suffering from diminished responsibility.

2 The following facts are not in dispute. The applicant was a serving police constable aged 28 years. He started to court Miss Chan in February 1997. She was aged 22 years. She then lived with her mother on the first floor of Block B, Greenwood Garden, Shatin. In March, she left home to live with the applicant, and they lived together for about six months, and then each returned to their respective previous homes. However, they continued to court and, in December 1997, they went on holiday together to Thailand. But Miss Chan decided to end the relationship, and, in late January 1998, that is what she did. The applicant found this impossible to accept, and became obsessed with the need to see her. He even rented a flat in the apartment block in which she lived. He telephoned her very frequently, constantly followed her, and made such a nuisance of himself, including threats against her, that she made several reports to the police. In April 1998, he was arrested for criminal intimidation, following an argument with her on a bus, but the evidence was considered insufficient to support proceedings, and no charge was brought. Then, on 28 June 1998, he was arrested, and he was charged with three loitering offences, each to do with his uninvited pursuit of Miss Chan. He was interdicted from service on 29 June 1998. He appeared before the magistrate. Despite objections, he was granted bail, and a trial date was fixed for 23 July 1998, that is to say, a date which was, as matters sadly transpired, five days after the killing.

3 On the afternoon of 16 July 1998, he purchased a large knife and, that night, he booked a room for himself and checked in at the Regal Riverside Hotel, which is in Shatin. The booking was for one night, and the address he gave when registering was Miss Chan's address. The next day Miss Chan was on casual leave and did not follow her normal routine, so his hope of seeing her was thwarted. The applicant booked another night's accommodation at the same hotel, which was near to her home.

4 At about 7a.m. on 18 July 1998, he went to her home. He spoke to her. She remained uninterested in his approaches, and she took the lift to the ground floor. He followed her downstairs in the lift, and she then used her mobile telephone and started to speak to a police officer but, before her conversation finished, the applicant stabbed her with the knife which he had purchased. He stabbed her in the neck and in the chest, and there were multiple and savage wounds, as a result of which she later died. The applicant was arrested later that day at the Regal Riverside Hotel.

5 After his arrest, the applicant was interviewed on a number of occasions. He told the police that he had gone to look for the woman he most loved in his life, had met her, and had asked her to listen to him, but that she had ignored him. He had told her, he said, that he would die in front of her so that she would always remember him; that he had followed her down in the lift, and that she then made a call, told him that she was calling the police, and that he should die as soon as he could. He said that it suddenly went very bright, and he approached her and stabbed her. He was not aware how the knife came to be in his hand, and could not recall how often he had stabbed her. He said that he had bought the knife to kill himself.

6 He himself had cuts to the fingers of his right hand, as well as a gash between the thumb and forefinger of his left hand. It has never been suggested that these injuries were caused by an attempt to inflict harm upon himself. He was sent to Queen Elizabeth Hospital for treatment, and then to Castle Peak Hospital for observation.

The issue

7 The trial before Gall J. and a jury began on 29 June 1999. The applicant pleaded guilty to manslaughter on the basis of diminished responsibility. It was not a plea which the prosecution was prepared to accept, so the trial proceeded upon that issue. In other words, it was accepted that the applicant had killed Miss Chan and that he had done so unlawfully, and there was no real issue as to intent. We say "no real issue" because, although it was not the subject of a formal admission, no one ever suggested that the wounds were inflicted other than with an intent to kill, or to cause really serious harm.

8 It follows that a great deal turned upon the evidence of the psychiatric consultants who testified at trial, Dr Yuen for the prosecution, and Professor Wong for the applicant. They agreed that the applicant had at all material times been suffering from a disease of the mind, namely, a major depressive disorder. Where they disagreed is whether that disease substantially impaired the applicant's responsibility for the act which caused Miss Chan's death. The hearing concluded on 8 July 1999 and, by a majority of five to two, the jury returned a verdict convicting the applicant of murder.

The grounds of application

9 There are before us three grounds in support of the application, which have been advanced on behalf of the applicant by Mr Sarony SC, who also appeared for the applicant at his trial. In broad summary:

(1) the first ground is directed at the overall impact of the summing-up. It is said that the overall effect of the summing-up on the question of diminished responsibility amounted to a misdirection, particularly in its suggested focus on inability to control, rather than on impairment. There are further criticisms that are made as to the effect of the summing up, which we shall address;

(2) the second is an attack on the conduct of the prosecution, including the decision to continue with the prosecution for murder. Within the attack is a suggestion that there was a deliberate scheme to produce whatever evidence might be found to defeat the expected defence of diminished responsibility, and an attack on counsel for the prosecution, whose approach is described as partisan and distorting; and

(3) the third ground is an attack on the integrity of the consultant psychiatrist who gave evidence for the prosecution, and a submission that his evidence was so clinically flawed and so illogical that no properly directed jury could have relied upon it.

The background history

10 In order adequately to analyse and appreciate the grounds and their weight, it has been necessary to examine in considerable detail the material which was before the prosecutors, the material before the psychiatrists, the evidence of the psychiatrists, the conduct of counsel in the course of the trial, the evidence at trial and, of course, the summing-up.

11 Much of the background evidence concerning the applicant was common ground. The applicant's history shows a young man regularly thwarted in his relationships with young ladies. Miss Chan was his fourth girlfriend and, on each occasion, it was the girlfriend who terminated the relationship, leading the applicant into a state of depression. On each occasion, save perhaps one, he found it difficult to stay away after the relationship had, as far as the girl was concerned, ended. He joined the police force in late 1992, and the assessment reports about him, as the years went by, are good, and he seems to have had some prospect of promotion. There were, however, references to an emotional disposition, to unnecessary arguments, and to a lack of patience. Clearly, his obsession with his girlfriends and his inability to come to terms with the break up relationships inevitably caused problems at work.

12 After the separation from Miss Chan in January 1998, his work became severely affected, and fellow officers and his more senior officers noticed that he became depressed. He took frequent sick leave, and in February he was forbidden to carry a firearm. He telephoned Miss Chan frequently, sometimes 30 times per day, and waited for her regularly outside her home and workplace. He was stalking her.

13 In February 1998, he was referred to the police clinical psychologist, Mr Eddie Li, who then found him to be in a depressed state. He saw him again in mid-March, and Mr Li reported that there was, on the part of the applicant, a growing feeling of despair. Mr Li made reference to the applicant's harbouring "much anger". There was a significant change in May when Mr Li saw him, in that the applicant was then more pre-occupied with thoughts of Miss Chan having another boyfriend, and Mr Li noted the applicant's comment that she continually offered him, the applicant, an unsympathetic response.

14 That response of hers was not surprising. His conduct was such that she made reports to the police from as early as February 1998, including reports of threats he had made, which included suggestions by him that if she wanted him to die, he would kill her too. In April he was arrested, but charges were not brought. Miss Chan's family were sufficiently concerned to accompany her each day to her workplace.

15 His April arrest made no difference to the applicant's conduct, and he continued to harass the young lady. Dr Yuen records that in May 1998 the applicant saw Miss Chan walking with another man, and that "this made him mad", and he reacted violently at home. In mid-May 1998, concerned about his behaviour, his family took him to see a Dr Chan, a psychiatrist, who said that the applicant was depressed, and admitted him to the Baptist Hospital, with medication. When Dr Chan spoke to the applicant's sister, he learnt from her that the applicant had expressed a wish for revenge. We note, in this regard, Professor Wong's report that the applicant "also felt very angry that she wanted to destroy him". The applicant was discharged from hospital, but did not attend follow-up appointments.

16 There was evidence from colleagues and friends that on two occasions in late May the applicant went to Shenzhen with others, went to a karaoke, drank and danced and spent the night with a hostess.

17 Yet, in Hong Kong, he continued to pursue Miss Chan, and in late June he threatened to kill her because he thought she was dating. He was then arrested and charged with loitering, covering three separate events, and on 29 June appeared before a magistrate who, despite objections, granted bail with conditions. The case was adjourned to 23 July 1998 for trial.

18 On 14 or 15 July the applicant suggested a game of mahjong to colleagues, and they played. The evidence of one of the players was that the applicant was not moody.

19 This takes us to 16 July when the applicant purchased the knife. We have a photograph of it, and it is a substantial weapon with a large blade. That night he booked into the hotel.

20 The only witness to the killing, apart from the applicant and the unfortunate victim, was the police officer who received Miss Chan's call during which she cried out: "He has grabbed me. Help, help"; and a taxi driver who said that he saw the applicant grab the neck of the girl, and drag her into the staircase area.

21 This, and the events of the arrest and thereafter, was the evidence before the prosecutors and the psychiatrists.

22 After his arrest, the applicant was admitted to Castle Peak Hospital and there seen by Dr Ng, who saw him again frequently after the applicant's admission to Siu Lam Psychiatric Centre on 21 July 1998. In a report dated October 1998, Dr Ng concluded that the applicant had suffered a depressive disorder since January 1998.

The psychiatric reports

23 Dr Yuen's first report is dated 24 April 1999. It was placed before, and read to, the jury. Dr Yuen saw the applicant on four occasions: 22 July and 27 July 1998; and 20 April and 21 April 1999. By the time of the April report, Dr Yuen had received police files, to the contents of which we shall return. In his report, he refers to the accounts given by the applicant to him over the occasions he saw him; occasions lasting a total of at least four and a half hours. The applicant told him, in effect, that he had planned to kill himself at the hotel, but wanted to see Miss Chan for the last time. However, he said, on the day of killing he had changed his mind, in that he decided to kill himself in front of her. When he was talking to her, she was the same as ever, in that she did not care about him. In fact, she told him that he should die, and that the abortion she had had performed during their relationship was in respect of a pregnancy resulting from another relationship. He denied all allegations which had been made by her to the police that he had threatened her in the months before the killing. The doctor concluded that the applicant certainly had considerable personality problems; that he belonged to the "rejected type of stalker, a particularly dangerous type since they carried high risk of revenge attacks". He then said that it was not unexpected that he would be depressed after rejection, for the depression was very understandable and "situational". But it appeared, from the evidence he had seen, that the applicant was not depressed all the time, and that, at times, he participated in normal, social and recreational activities with friends. It was, he said:

"... difficult to ascertain the state of his mind at the material time because I do not know what actually had happened. The killing certainly could be a premeditated one. It is also possible that he had acted under provocation if what he had told me on 20.4.99 was true. The defence probably would say that he was depressed and the depression was so severe that his judgment and self-control were impaired at the material time and the defence of Diminished Responsibility should be available to him. But I have doubt in all these. Firstly, he did not seem to have told me the whole truth. Secondly, he said he had wanted to die but there was no evidence that he had ever tried to kill himself throughout the whole incident. Thirdly, what he told me seemed to imply that the deceased had provoked him but I wonder how likely what he said was true. I must emphasize that it is not for me to establish the facts and the issue of provocation should not be within the expertise of the psychiatrist.

I would recommend the prosecution not to accept his plea of manslaughter on the basis of Diminished Responsibility. The trial should go ahead in the presence of the jury." (Tr. p.220)

24 Professor Wong's report is dated 22 June 1999. It too was given to the jury. He had examined the applicant on 5 and 13 November 1998 for a period of five hours and had access to all relevant material. It is a very full report. It cites, at length, passages from the police assessment report; speaks of the applicant's tendency to jealousy as well as a strong obsessional trait; recounts the applicant's tales of rejection and hurt and obsessions; recites the reports of the police clinical psychologist, Mr Eddie Li; and refers to the applicant's anger that the girl "wanted to destroy him". Professor Wong's conclusion was that the applicant suffered a severe psychiatric disorder known as major depressive disorder, precipitated by the loss of his girlfriend, which disorder was a disease of the mind, and which substantially impaired his mind at the time of the offence, and his responsibility for that offence. He takes issue with Dr Yuen's report of April 1999, saying that Dr Yuen had not the full picture he should have sought.

25 Professor Wong's report triggered a response from Dr Yuen. Dr Yuen had by this time not only Professor Wong's report, but also Professor Wong's notes, and he pointed out that there were significant matters revealed by those notes, as well as by witness statements and other evidence, to which Professor Wong had made no reference in his report. Dr Yuen pointed to matters about which the applicant had said nothing to the police when interviewed, but which had been alleged later, and he also noted that Professor Wong had not addressed the question of stalking, and what motivated different categories of stalkers. However, he agreed that at the material time the applicant was suffering from a major depressive disorder. Nonetheless, he emphasizes that the applicant was primarily jealous and angry, and he asserts that the assault of the victim was not due to depression. He says:

"The presence of a Major Depressive Disorder at the material time of the killing would not automatically make the accused eligible for the defence of Diminished Responsibility unless it could be shown that the accused's judgment and/or perception, the ability to control himself were significantly impaired by the illness. I don't think these criteria could be fulfilled in the present case." (Tr. p.228)

The allegations of professional impropriety

26 We think it appropriate in this appeal first to address the allegations of impropriety made against Dr Yuen, and against counsel. They are to be found in a combination of Grounds 2 and 3 of this application, which are in the following terms:

"Ground 2

The manner in which the Government of the HKSAR prosecuted the Appellant, indeed the very decision to continue with the prosecution on a count of Murder when the Appellant tendered a plea of Guilty to Manslaughter, notwithstanding the clear evidence from the Government's own appointed experts diagnosing that the Appellant had been suffering from a mental disorder at the time of the commission of the offence, were contrary to public policy the basic law and Article 10 the Bill of Rights Ordinance."

"Ground 3

The evidence of Dr. Yuen was so clinically flawed and so inherently incapable of withstanding logical analysis that it was neither reasonable nor responsible and should have been rejected. The Jury, if it had directed its collective mind properly, could not have been satisfied that his 'expert' opinion had a logical basis or that he had, in forming his opinion, directed his mind objectively to the issues for his consideration."

(1) The attack on Dr Yuen's integrity

27 Amongst the allegations made in support of this ground are these:

(1) That "the Prosecution sought an opinion from Dr Yuen. The format of the request from the officer in the case makes it abundantly clear that what the Prosecution sought from Dr Yuen was: 'to confirm that the defendant was in a normal state of mind whist carrying out the homicide'." (Emphasis added).

(2) Dr Yuen is accused of a "lack of professional objectivity" in that, so it is suggested, he did not ask for relevant material, and evaded the central issue in his first report; and it is asserted that his "patent bias should have ruled out his evidence as an independent expert witness"; and that "his instructions from the officer in charge of the case were unequivocal in their request" for evidence to counter the defence of diminished responsibility.

28 One cannot escape the fact that the effect and intent of the allegation made, as we correctly crystallized it in the course of Mr Sarony's submissions, was that Dr Yuen is dishonest, and is prepared to dance to whatever tune the prosecuting authority wishes him to play and, further, that he was actually instructed in this case to play a particular tune, namely, that, regardless of the truth of the matter, and whatever his true opinion, the defence of diminished responsibility was not tenable. And not only is the allegation that such instruction was given to this doctor in the expectation that he would bury professional propriety, but that he actually accepted the instructions, and did as he had been told.

29 The suggested evidential basis for this extraordinary attack on Dr Yuen is to be found in a minute written by a Senior Inspector Kong, as well as in a covering report and a summary of statements, also written by her. It is clear from these documents that that officer took a view that the applicant had executed a well planned attack, following frequent threats against the victim, and that, in the light of the history of the matter, including his social behaviour observed in the period preceding the killing, diminished responsibility was not a defence that should be accepted. She made her view known, as she was perfectly entitled to do. However, she also added, in the covering report that:

"taking into consideration the defendant's guilty mind as reflected in what he had done and said to the victim in the six months' preceding to the offence, it is considered that a conviction of manslaughter is unacceptable. In this connection as being one of the actions in progress, the investigators are looking for psychologists and if necessary, psychiatrist evidence to prove that the defendant did not suffer from an abnormality of mind, or the seriousness of his mental instability did not substantially impair his mental responsibility at the time of the offence." (Tr. p.102)

A similar comment was made in the minute, and in the summary of statements.

30 We say at once that it was unacceptable for this officer to suggest that anyone should deliberately seek a report which came down one way or another. The officer's task was to state the result of the investigation and to add, if she genuinely thought it warranted, what factors appeared to her inexpert view to militate against the suggestion of diminished responsibility.

31 That said, the question is whether any of these documents constituted an instruction at all and, most particularly, an instruction to Dr Yuen, to construct a report which, regardless of the truth, went against the applicant. It has been put to us as a positive assertion that they did, and that Dr Yuen acted accordingly. Not only was it put to this court by Mr Sarony as an assertion, but it was put by him as a fact to Dr Yuen in cross-examination, at the outset of cross-examination, thus:

"Q. .... The instructions you received from the prosecution were to find the evidence to prove that diminished responsibility did not apply in this case. Those were your instructions, weren't they?"

32 We note the way it was put: (1) that Dr Yuen received instructions to find such evidence and, (2) that the instruction came from "the prosecution". So, the allegation is not only an allegation directed at Dr Yuen, but at "the prosecution" at large, which must include counsel advising upon the case for the Department of Justice. That is how it was put. This is a most grave allegation which, not surprisingly, has received media publicity.

33 This allegation ought never to have been made. In a case in which accusations of distortion have been hurled without reserve at Dr Yuen, and at prosecuting counsel, this allegation itself is based upon a distortion.

34 In the first place, neither the minute, nor the covering report, nor the summary, constituted an instruction to Dr Yuen. The minute was an internal police minute to a Chief Inspector, and dated October 1998, months before Dr Yuen was consulted. The Chief Inspector responded by saying that an approach should be made to "... a government or private psychologist/ psychiatrist for assistance", and Senior Inspector Kong then asked Dr Ng, in writing, for "an assessment of [the applicant's] state of mind prior to the incident", a request made in suitably neutral terms.

35 The covering report, whilst it eventually found its way to Dr Yuen, together with other papers in the case, was also not addressed to Dr Yuen. It was dated 14 September 1998, six months before Dr Yuen was asked for a report, and was a document addressed to the Department of Justice. Dr Yuen was orally asked by the officer to provide a report for the case, and there is no suggestion that anything improper was said in the making of that request. The covering report to the Department of Justice, a copy of which was given to Dr Yuen, was lengthy, containing 89 paragraphs, which addressed the background of the victim and of the applicant, their relationship, the history of stalking, the arrest for loitering, the events leading up to the killing and the killing itself, police action at the scene, the arrest of the applicant, his cautioned statement, the evidence of eye witnesses, the post-mortem, injuries to the victim, an analysis of the evidence, and the officer's views including the offending paragraph; a paragraph followed by a request by this officer - a request which, throughout the hearing of the appeal, was never drawn to our attention - for advice as to "the appropriateness of the charge of murder". (Emphasis added).

36 The summary is dated 16 October 1998. It, too, was not addressed to Dr Yuen.

37 The idea, then, that an experienced consultant in forensic psychiatry would, amongst this welter of information with which he was presented, alight on the offending paragraph of each document written by one police officer, not to him but to others, an officer wholly unversed in matters psychiatric, and take that to be an instruction, to him, to dishonour his integrity, is nonsensical. To suggest that he would then go on to act accordingly is a gravely offensive suggestion. If it had any basis, the fact that it was offensive would be neither here nor there. But there was never any proper evidential basis for it and, that being so, the assertion, made in the presence of the jury, was an assertion that no counsel should have made.

38 In any event, all of this was canvassed through the adversarial process before the jury, and Dr Yuen answered the allegations, pointing out that the covering report was not addressed to him, made it clear that what the police said amongst themselves was of no concern to him, that he was never asked to produce a report to confirm or refute a particular point of view, and that never in 20 years had he received instructions of that kind.

39 The jury had ample opportunity to appreciate the nature of the attack on Dr Yuen, on his integrity, his methodology, consistency or inconsistency, on suggested illogicalities, failure to have regard to relevant material, alleged evasiveness, obdurate denials, inherent conflicts and so on. The attack upon him was prolonged and vitriolic; for example: "You say you're fair, and I suggest you're not, but try to be fair just for this instance." And: "You now want to be psychiatrist, counsel, and doubtless you'd like to sit on the jury and make the decision for them." This approach was reflected in the speech which Mr Sarony delivered at the end of the trial to the jury, a speech in which he attacked not only Dr Yuen but other prosecution witnesses as well, saying of Dr Yuen that: "Dr Yuen is one of the most cynical people you will ever have the misfortune to have to listen to, because what you were not given was an objective psychiatric assessment", and that he was "a flawed piece of furniture"; and of Mr Li that "Eddie Li is a disaster", "Eddie Li is responsible for this tragedy", and "an arrogant man". Quite what the jury thought of that sort of approach in this case, one can but guess.

40 There are other attacks upon Dr Yuen's integrity. He is accused of failing to ask for obviously relevant material, and the implication is that that failure was deliberate. The long and the short of that omission turned out, from the evidence of Professor Wong himself (transcript p.185), to be the staff report which, in any event, Dr Yuen saw before giving his final opinion, which criticism was put to him in cross-examination, and with which he dealt comprehensively. It was for the jury to decide what it made of his answers; just as it was for the jury to decide what it made of Professor Wong's evidence, and of suggestions made that material matters did not appear in the Professor's report. Like much of this appeal, the point taken ignores the adversarial nature of the trial system, the fact that Mr Sarony utilised, and utilised enthusiastically, the opportunity he had to make all these criticisms to the witness, as well as in his closing submissions.

41 We do not propose to deal with each item which Mr Sarony says shows a professionally improper approach by Dr Yuen. There are many of them. We have examined each, and none impresses us at all. It is to be noted, in passing, that in his first report Dr Yuen, who examined this applicant only a few days after the killing, said that "it was difficult to ascertain the state of his mind at the material time", adding that it was possible that the applicant was acting under provocation; and that Dr Yuen was prepared to say in answer to a question put by the court that it was possible that the applicant was substantially impaired by the illness, though he stuck to his own opinion that he was not. These are not the hallmarks of unfairness. In any event, sight seems to have been lost entirely, by the thrust of this application, of the fact that the burden rested upon the defence to establish diminished responsibility. Much depended on the weight the jury was prepared to accord to the evidence of Professor Wong.

42 The attack on Dr Yuen's integrity was completely unwarranted.

(2) The attack on counsel for prosecution

43 The attack on Mr Moultrie is no less defamatory of his professional integrity than was the attack on Dr Yuen. The only difference is that this attack was reserved for this court. There was not a hint of complaint by Mr Sarony prior to this appeal that counsel had acted with professional impropriety. Nothing in correspondence to the Department of Justice. Nothing to the judge.

44 Yet, before this court, prosecuting counsel is said to have been party to "a campaign" by the prosecution "to do almost anything in its power to rebut the anticipated defence of diminished responsibility so as to secure a conviction for murder." As an accusation, one has seldom seen its like, and it is, against all the relevant facts which we have closely examined, a fanciful accusation bereft of even a grain of merit. It, too, is an allegation that should never have been made.

45 The suggestion that the very decision to continue with the prosecution was contrary to public policy, and evidence of counsel's wilful obduracy in the face of overwhelming evidence, does not bear logical examination. Counsel was perfectly entitled to decide that the issue in the case was one to be determined by a jury. He had before him the fact that the applicant had been threatening the victim, had talked of revenge, had purchased a knife two days before the killing, had behaved apparently normally a day or so before buying the knife; was facing trial five days hence for conduct reported to the police by the victim, the consequences of which trial he feared; had seen Miss Chan going to a karaoke on the night of 16 July; had left no suicide note; had light reading material with him in the hotel; and there was a psychiatrist's report from an expert who had examined him within days of killing who was, at least, sceptical about impairment of judgment. Nor was there any obligation whatsoever upon counsel to accept the report of Professor Wong. There may be many sound reasons why he was not prepared to do so. None of this is to comment on the relative merits of the contending cases. But to suggest that it was somehow perverse of the prosecution to proceed, and was evidence of a dishonourable approach, is sheer nonsense.

46 Prosecuting counsel's presentation of the case is said to have been "a highly partisan affair", which focussed on the question of intent, thereby distorting the case, and it is contended that in his closing speech he "advanced submissions that were gross distortions or ought, objectively considered, never to have been made." As an example of this, Mr Sarony says that "a central plank of the prosecution's submissions that the applicant wished to revenge himself on the victim was entirely constructed out of an elliptical three word entry in notes taken by Dr Chan" in the course of a conversation with the applicant's sister. The answer is that it would have been astonishing had prosecuting counsel not made something of the question of revenge, for the evidence about the wish for revenge was simply not restricted to this 'elliptical' entry. Dr Yuen had addressed the revenge factor in the case of rejected stalkers (a point to which prosecuting counsel referred in his speech immediately before he made reference to the three word entry); and the jury also had before them reports suffused with references to jealousy, and threats made to the girl.

47 Counsel is then accused of "morbid concentration on the photographs of the stab wounds". Since intent to kill was not admitted, reference to the photographs was required. Reference in counsel's speech to comics found in the applicant's hotel room is said to be "typical of the distorting approach". Yet, since the question of the applicant's state of mind was relevant, and since reading comics was a hobby of the applicant, the point made by counsel was a perfectly proper one to make.

48 We have read counsel's speeches, and the transcript of the examination and cross-examination. There was nothing improper in Mr Moultrie's behaviour; nothing whatsoever. Mr Moultrie's cross-examination of Professor Wong was courteous, and fair, and skilled. His speeches were entirely proper. Any suggestion that he was partisan to some improper scheme to present distorted expert evidence is totally without foundation. We are dismayed by the fact that leading counsel has lent himself to this allegation.

49 We do not propose to address the attack, to be found in ground 3, on the logic of Dr Yuen's conclusions. The points made under this head constitute, in the main points put to the jury and canvassed in cross-examination. Given the outcome of this appeal, which is a product of an assessment of the summing up, it is neither necessary, nor appropriate, to pass judgment about this particular complaint.

The summing-up

50 The first ground of this application is the one which has caused us difficulty. It states as follows:

"The overall effect of the summing-up amounted to a misdirection which could not be saved by occasional correct directions. In particular, the directions to the Jury as to how to approach their deliberations on the focal issue of 'Diminished Responsibility' were fatally flawed."

51 Of the submissions advanced in support of this ground, a number do not give us cause for concern. For example, there is a suggestion that the judge drew the jury away from the central issue in that he addressed them on the question of intent; and that he dwelt, it is said, when he should not have, on the issue of what was contemplated in law by a person of unsound mind. The answer is that the judge had to deal with intent, for it was not an admitted fact, and he dealt with it properly and did not over-emphasize it. He dealt with the issue of insanity because, unfortunately, it had been mentioned by counsel, and the judge addressed it merely to ensure that it was put aside.

52 What has, however, concerned this court is whether the summing-up accurately crystallized, and with sufficient clarity, the key issue which the jury had to decide, and whether this jury was given adequate assistance in the difficult task which it faced. In this case, the issue was not whether, at the material time, the applicant suffered an abnormality of mind. The essential question for the jury's decision was whether that abnormality operated substantially to impair his mental responsibility for his act. It required a direction to the jury which precisely and accurately specified the relevant law, in terms the jury could understand, and which summarised accurately and clearly how the evidence in the case might bring the applicant within the defence and how, on the other hand, the applicant's act might, notwithstanding his acknowledged illness, fall outside the defence.

53 There are, we believe, a number of ways in which the summing-up in this case fell short of what was required. In saying this, we recognize that the trial judge was clearly anxious to deliver a summing-up in terms which avoided technical phrases, and did not become overly complex. That is a laudable aim, but we think that, in pursuing that aim, the summing-up became overly conversational, and in its repeated but varied articulation of the suggested key issue in the case, lost the clarity that was necessary and, in particular, phrased the suggested issue in a way that gave rise to a real danger of the jury misapplying the correct test for diminished responsibility. That danger arises from each of the following themes which became refrains as the summing up progressed:

(1) a tendency to suggest that it was for the applicant to show a complete loss of control due to the depressive illness, whereas it was not necessary for the applicant to show that his impulse was rendered irresistible by reason of the abnormality of mind for which he suffered;

(2) a repeated suggestion or an implication that the choice facing the jury was between loss of control due, on the one hand, to depression, and on the other, to rage, jealousy and, anger; without directing the jury that if the act which caused death was committed in rage or jealousy or anger, the defence of diminished responsibility was nonetheless available to the applicant, if he showed, on a balance of probabilities, that even though, or even if, he killed in a rage, or because he was jealous or angry, still, his ability to form a rational judgment, his perception of matters, or his ability to exercise will power to control his acts was, within that framework, impaired by reason of his abnormality of mind.

54 As for the directions on the issues of diminished responsibility, the judge first, and correctly, directed the jury as to the constituents of the offence of murder. He then said this:

"If you find that you are not sure that he had the intention to kill or to cause serious bodily harm to Miss CHAN, then you will find him not guilty of murder, because you would not be sure he had the intent, but you would find him guilty of manslaughter because he has already entered that plea. He has already said 'I am guilty of manslaughter', which is an unlawful killing of one person by another, but without the intent.

If, however, you were sure that he was guilty of murder, that would not be the end of it. You then have to go on and consider the issue of diminished responsibility. If you find that at the time he committed the murder he was suffering from an abnormality of the mind, which in law, substantially impaired his responsibility for the killing, then his responsibility was diminished and that will reduce the offence from one of murder to one of manslaughter.

The law, is that it is for the accused to prove that his responsibility was diminished. This is not proving his innocence. Remember, you only consider diminished responsibility if you are sure he is guilty of murder, so you have already found him guilty. If he raises the issue of diminished responsibility he must show upon the balance of probabilities that it is more likely than not." (Tr. p.13)

55 We pause to make two comments, neither of which, in the event, provide in this case, a valid ground for upsetting the verdict, but they nonetheless warrant mention. The first comment is that the guilty plea to manslaughter was on the basis of diminished responsibility, not on the basis of lack of intent. The second is that it is undesirable to talk to a jury in terms of first finding a defendant guilty of murder before going on to consider the issue of diminished responsibility. There is no question of any finding of guilt of murder unless the defence first fails to prove diminished responsibility on a balance of probabilities. This direction is not fatal in this case, because it was cured by later directions, but we urge judges to stick to the established formula:

"Providing that the prosecution has proved all the elements of the offence of murder, you must convict the defendant of that offence, unless you find that at the time of the offence he was suffering from an abnormality of the mind which in law substantially impaired his mental responsibility for the killing. If he was, his responsibility is diminished and that will reduce the offence from one of murder to one of manslaughter....

....

If his defence fails to prove any one or more of [the elements of diminished responsibility], providing that the prosecution has proved the ingredients of murder to which I have referred, your verdict must be guilty of murder. If, on the other hand the defence has satisfied you that it is more likely than not at all three elements of the defence's diminished responsibility were present when the defendant killed your verdict must be not guilty of murder but guilty of manslaughter."

56 The judge initially delivered an accurate direction as to the elements of diminished responsibility.

"Diminished responsibility has three elements to it. Firstly, there must be an abnormality of the mind. Secondly, that abnormality of the mind must come from a condition of arrested or retarded development of mind, or from any inherent causes, or must be induced by disease or injury. I am going to go through these again, so do not worry too much at this moment about the exact wording.

Thirdly, the abnormality of the mind must substantially impair the accused's mental responsibility for his acts when he killed Miss CHAN. When you consider was there an abnormality of the mind, the word "mind" includes understanding, the ability to understand, the ability to make judgments, decisions; the ability to stop yourself doing something, to use your will to prevent you doing something or to cause you to do something. It includes perception, the ability to understand what is going on around you." (Tr. p.14)

57 Then a little later, he added the following which, again, save perhaps in one regard, cannot be flawed:

"The last issue is the one that probably is where you have to give greatest thought. That is the third element. That the abnormality of the mind substantially impaired his responsibility for his acts. You must approach the word 'substantial' also in a common sense way. It means more than some trivial degree, more than some trivial impairment which really does not make any appreciable difference to a person's ability to control themselves, but it means less than total impairment.

For the accused to have the benefit of this defence, you must conclude on the balance that the abnormality of his mind was the real cause of his conduct. He need not prove that the condition that he was suffering from was the only cause, but he must show that it was more than a mere trivial cause, which did not make any real difference to his ability to control himself." (Tr. pp.15-16)

58 The only observation we have here concerns the reference to "the real cause of his conduct". It is more accurate to say "a real cause" rather than "the real cause", but looking at this paragraph in isolation, no harm is done because in the direction which immediately follows the judge pointed out that the condition need not be the only cause.

59 The judge had by this stage defined diminished responsibility in its three constituent elements, and had concentrated on the last of the three elements explaining to the jury again what that element was. The judge then moved to the facts of the case. He then said that there was much in the experts' evidence to indicate an increasing mental disorder "... which was capable of causing the accused not to be able to control himself. There was also material which indicted he had strong jealousy and rage and ... a desire for revenge." The judge then sought to give assistance to the jury as to the issues for them to decide by reference to the evidence in the case. Such an approach will always, or almost always, be essential in a summing up, and in some cases it may well be desirable to articulate that issue in the factual context more than once. That is what the judge did in this case, as we shall see from the passages to which we shall shortly come. Where we respectfully take issue with the judge is that in our judgment the repetitions, in this particular summing up, of the suggested central issue, as those repetitions were variously framed, injected a lack of clarity and, further, that the terms used in those repetitions injected error as to the correct approach to be adopted by the jury.

60 We take up the summing up at a stage after the judge had referred briefly to the evidence leading up to the killing. He refers to evidence said to indicate the applicant's inability to control himself, and then to "... material which indicated he had strong jealousy and rage and from Dr CHAN's notes, a desire for revenge."

61 Then the summing-up continues, a short while later:

"So it is quite clear that he did feel the need to vent his anger and his revenge. Dr YUEN, I think, sets it out quite well in his report. He said at page 7 of his second report:

'The presence of a major depressive disorder, at the material time of the killing, would not automatically make the accused eligible for the defence of diminished responsibility, unless it could be shown the accused's judgment and/or perception, the ability to control himself, was significantly impaired by the illness.'

Ignore the last, he does not think that the criteria could be fulfilled in this case, but he sets it out really very well, the decision that you have to make. You will probably find that he had an abnormality of the mind. You will almost certainly find that he had a major depressive disorder, because really both experts agree on that.

You will be able to find that at the time he killed Miss CHAN he was really mentally ill, but what you have to decide is on the balance of probabilities, was it the mental disorder that made him unable to control himself, or even though he was sick, what he was doing was killing Miss CHAN out of anger and revenge, and that he could have stopped himself if he wanted to; but he actually wanted to kill her or do her serious harm.

That is the issue you have to decide. I put it to Dr WONG at the end, because I was having some difficulty with just how we should look at that particular issue, and you might remember, that he agreed that the accused must have had a burst of anger, either increased by his illness, or just within himself, not part of the illness, which led him to attack her. And because of the illness he was unable to stop himself, or he agreed that he intended to kill or do serious harm in anger and was able, but did not wish, to control himself.

When you consider this problem you are going to have to think of all you have heard from the experts. Mr Sarony and Mr Moultrie have gone through it in great detail and most competently. I am not going to go through the reports to try and give you a third way of looking at it.

The issue boils down to what I have just told you. First of all, did he intend to kill or cause really serious harm to Miss CHAN? If he did, you are sure of that, then he committed murder. If he committed murder then was he suffering from an abnormality of the mind? Did he have a major depressive disorder, which is a disease? Yes.

The third question is the one you really have to concentrate on: has Dr WONG, Professor WONG, because it is for the accused to show, shown you, bearing in mind everything you have heard about the events, and bearing in mind what Dr YUEN has said, has he established that it is more likely than not that it was that abnormality and disease of the mind that impaired the accused so he could not stop himself, rather than in a fit of anger, jealously, rage, revenge he intended to kill or cause serious harm to Miss CHAN. That is the issue you will have to decide.

The defence of course say, 'Perfectly clear, this man was very ill.' He was, still is. 'And he would never, given his history, his love, his affection, his desire to be with her, to be close to her, he would never have killed her, notwithstanding any anger, rage, jealousy unless he was so affected by his illness that he could not stop himself.'

The prosecution say, 'Yes, he was sick, but he was following her, he was angry, he was seeking revenge, and it is more likely, or rather not less likely, to put it in the negative, that she was killed because he really wanted to attack her and get rid of some of that anger and revenge and cause her some really serious harm and she died as a result."

That is the issue you have to resolve, gentlemen." (Tr. pp.18-20) (Emphasis added).

62 These passages, particularly those to which we have added emphasis, and most particularly the last of those emphasised, carry in our judgment a message or theme or, more accurately put, carry too much room for the jury to understand as a theme, that if the attack was triggered or motivated by jealousy and anger, accompanied by an intention to kill or cause serious harm, then that is somehow to be divorced from the mental illness, and that the defence of diminished responsibility does not then apply. What the judge has done is to juxtapose two scenarios: the first is that the applicant killed Miss Chan because the disease of his mind rendered him incapable of stopping himself; the second is that he killed her in a fit of anger or revenge, intending to kill her or to cause her serious harm. The juxtaposition, unqualified, is unjustified. If the applicant killed in a fit of anger, intending to kill, but his ability to control his anger and his act was nonetheless substantially impaired by reason of his disease of mind, his responsibility for that act is diminished. The juxtaposition is further emphasized by phrases such as: "Was it the mental disorder that made him unable to control himself?"; whereas the disorder need only be but one factor, albeit a substantial one, that impaired his inability to control himself, rage or anger themselves being other factors. We know that earlier in the summing-up there is reference to the absence of a need to show that the disease was a sole cause of impairment but this, in due course, and by the directions to which we have referred, becomes lost.

63 Furthermore, it is impairment that is the key factor, and we fear that the concentration on a complete loss of control caused by the disease alone detracted from the concept that the jury should have had the forefront of its mind, a concept illustrated by the rationale for the defence:

"A man whose impulse is irresistible bears no moral responsibility for his act, for he has no choice; 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 act."

(Smith v Hogan "Criminal Law" 7th edition pp.213-214)

64 The defence of diminished responsibility is:

"... wide enough to cover the mind's activities in all its aspects, not only the perception of physical acts and matters, and the ability to form a rational judgment as to whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgment. The expression 'mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for his physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts....

Inability to exercise will power to control physical acts, provided that it is due to abnormality of mind from one of the causes specified in the parenthesis in the subsection is, in our view, sufficient to entitle the accused to the benefit of the section; difficulty in controlling his physical acts depending on the degree of difficulty, may be. It is for the jury to decide on the whole of the evidence whether such inability or difficulty has, not as a matter of scientific certainty but on the balance of probabilities, been established, and in the case of difficulty whether the difficulty is so great as to amount in their view to a substantial impairment of the accused's mental responsibility for his acts."

(See R v Byrne [1960] 2 QB 396, 403-405)

65 There is no such qualification to be found in this summing-up. In other words, no suggestion that real difficulty in control occasioned, or significantly contributed to, by the illness, might suffice. Not every case will call for the introduction of the question of difficulty in exercising control. We think that this case did. This was not necessarily a black and white issue, yet it was painted as such: on the one side was total loss of control, and caused only by the illness, and on the other was rage, anger and jealousy, and there was no reference in this summing up to the role which abnormality of mind might play in promoting or aggravating anger and rage, or to the role it might play in conjunction with anger, rage and jealousy.

66 In short, the position appears to us to be this: that if, after the passages of the summing up which ended with the words: "That is the issue you have to resolve, gentlemen" (see para [61] above), the jury had been asked: "What is the issue which you have to resolve?" the answer, we fear, may well have been this: "We have to decide whether this defendant killed Ms Chan because he was in a rage or because he was jealous or because he wanted to take revenge, since she had rejected him. If that is why he killed her, he is guilty of murder. On the other hand, if he has shown that he killed her because he had this mental illness which, of itself, made him quite incapable of stopping himself, then he is guilty of manslaughter by reason of diminished responsibility." If the summing up, by the passages to which we have referred created a real risk of such an answer, and we think it did, then, for the reasons we have provided, the conviction cannot stand.

67 Counsel for the respondent, Mr Saw SC, has urged us to say that the judge was doing no more than stating the opposing views of the contending psychiatrists in this particular case. He points to evidence of Dr Yuen, in answer to questions from the court, in which he agreed that he was saying that the disease did not substantially impair the applicant's mental responsibility, that it was not sufficient substantially to impair it; and to evidence where Professor Wong said that the disease caused the applicant to lose control, as to which we were referred to the following passage, as the key passage of Professor Wong's evidence:

"COURT: He was unable, because of his illness, to stop the outburst of anger he had when he went to attack her with the knife. Without the disease, his anger wouldn't have reached that point, or if it did reach that point, he would have controlled himself. With the disease, the anger reached that point and he couldn't control himself. Is that what you say this man at that time?

A. That is correct, my Lord. Thank you." (Tr. p.210)

68 This does not overcome our disquiet. Even assuming that these two isolated passages, amongst expert evidence that lasted several days, accurately encapsulates undiluted stances of the experts, that does not absolve a trial judge from an accurate statement of the law, and from avoiding implications which bear the risks by which we are troubled. In any event, neither the extremes, nor the content, of the medical opinions could bind the jury to a choice of either extreme. It was open to them to conclude, if so persuaded, that there was significant difficulty in control contributed to by the abnormality of mind, even if the applicant's expert pinned his colours to the mast of the abnormality as sole cause of a complete loss of control. Nor was Dr Yuen's evidence as undiluted, or as necessarily clear, in the absence of distillation by the court - and there was no such distillation - as Mr Saw suggests. We note, for example, his response to an important question from the court that he did not think there was severe impairment of judgment; and a reference to the fact that the applicant did not suffer an irresistible impulse (tr. page 98). He was no doubt here dealing with various aspects of impairment, but nowhere does the judge warn the jury away from tying itself to an irresistible impulse or to severe impairment. So, too, we note Dr Yuen saying (tr. page 125): "He did what he did because he was very angry. And so the depression alone does not account for the killing" (emphasis added), which begs the question, with which the judge did not deal, of the combined effect, in this case, of the two, and how the jury might approach that. In such circumstances, references to two passages of contending evidence, and to a purported encapsulation in the summing up of the two contending stances evidenced thereby does not cure the errors, or lack of clarity, which found their way into the summing up as it progressed.

Conclusion

69 What was required was a summing-up which accurately and clearly defined the issues of law, with reference then to the salient evidence, and in our judgment the summing-up has not sufficiently met that requirement. We are, in the event, left with a real misgiving that the jury might have approached its task with an inaccurate or unclear understanding of the issue which it had to determine. We cannot in the circumstances say that the verdict was safe and satisfactory. There can be no question in this case of applying the proviso.

70 Accordingly, we grant the applicant leave to appeal against his conviction. We treat the hearing of the application as the appeal, and we set aside the conviction. This is clearly a case in which there should be a retrial, and we so order. We have heard counsel as to this, and both were agreed that in the event that this application was allowed, a retrial was the appropriate course. The applicant is remanded in custody until his retrial upon a fresh indictment.