R. v. YEUNG KA WAH

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JUDGMENT  OF  THE  COURT

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Macdougall, J.A.:

1. The applicant was convicted by Deputy Judge C.Y. Wong in the District Court on two charges of robbery and one of possession of an offensive weapon. He was sentenced to 5 years' imprisonment on each of the robbery charges and to 12 months' imprisonment on the possession of an offensive weapon charge, all sentences to be served concurrently. Originally, he sought leave to appeal against all three convictions and sentences. However, he subsequently abandoned his application in respect of his conviction on the possession of an offensive weapon charge and his application in relation to his sentences.

2. The evidence for the prosecution was that on 18 September 1990 at about 2.05 a.m. the applicant, armed with a knife, entered a 7-11 store in Java Road and robbed the cashier, a Miss Au Yeung, of   $350. At 2.30 a.m. that same day, again armed with a knife, he robbed the cashiers of a 7-11 store at Electric Road of $990.

3. Immediately after the commission of the first robbery the police accompanied by Miss Au Yeung began a search of the area for the man who had robbed her. Soon after the second robbery had been committed Miss Au Yeung spotted the applicant as he was entering a 7-11 store in City Gardens.. The police immediately stopped and searched him and found that he was carrying a knife and over $1,000 in cash.

4. One of the victims of the second robbery later identified the applicant at an identity parade as being the man who had committed that robbery. At the trial there was no challenge to the evidence of these two victims that the applicant was the culprit in each robbery.

5. The applicant elected to give evidence. Although he denied having been in possession of the knife, he was unable to say that he had not committed the robberies. He explained that at about 10 p.m. he had bought some pills, whose colloquial name is "Cross", but which are properly known as rohypnol, and had taken two of them before boarding a taxi to go to the Taxi Drivers Club.

6. He recalled that when he arrived at the club all the pills had gone. According to him he may have taken them one by one before arriving at the club. Having arrived at the club he watched television for a while. He was then persuaded by a member of the staff to go out and buy a can of powdered coffee, a can of corn soup and something else which he could not remember.

7. He asserted that he was an habitual user of "Cross" pills but that prior to that evening the greatest number of pills that he had "taken in one go" was five. That was in March or April 1990.

8. After taking the pills on that occasion his mind had become blurred and he had walked around in the street "doing things which were rather nonsense (sic)".

9. On the present occasion he was unable to recall whether on the night in question he had actually bought the coffee. He thought, however, that he had bought the corn soup. He said that although he remembered having gone to two 7-11 stores, he was unable to recall where they were located. The next incident he could recall was that a police officer was taking a statement from him in a police station, that he was told by the officer not to fall asleep, and that another officer told the 1st officer to let him sleep. He thought that he was then taken to see someone who was not wearing a uniform.

10. Later in examination in chief, having already said that he may have taken the pills one by one, he testified that, having taken the first two pills, he became ess and less sober" and then took 2 or 3 more. He was sure that he had taken all 10 pills because he remembered having discarded the packet in which they were originally contained and that it was empty when he discarded it. He also recalled that on that night he had worn the waist bag in which the police found the knife at the time of his arrest at the last 7-11 store.

11. In cross-examination the applicant said that he could not remember whether he had pointed a knife at the staff in a 7-11 store or whether he had taken money from the tills. He denied having ordered the cashier to give him money from the tills, and asserted that he did not know that he was carrying a knife when the police approached him. In the same breath he admitted that he had picked up the knife from somewhere.

12. The applicant called a Dr. Bernard Lau to give evidence on his behalf. Dr. Lau, who has a diploma in psychological medicine, testified that he had interviewed the applicant on 28 February and 14 March 1991, some 5 to 6 months after the robberies, and had formed the opinion that he was sane and free of any psychiatric symptoms. Dr. Lau added, however, that he engaged in a "retrospective speculation that the applicant might have been under the influence of a drug at the time of committing the offences". The reason he gave for coming to this conclusion was that the applicant "appeared rather dull and slow in response" when he interviewed him.

13. Dr. Lau explained that the effect of rohypnol is to sedate or tranquillize, and that it is commonly used as a sleeping pill. He added that when it is taken habitually it has less effect than when taken by a person not habituated to its use, and that a frequent user "might appear drowsy and dopey, muddled in mind, slow in response and retarded in mentation". It would "reduce the degree of one's inhibition after habitual use - and it has some muscle relaxation effect."

14. For a heavy user, "at least 10 tablets would be considered an over dosage" which would "produce something like a sleeping state".

15. Dr. Lau went on to say that although he could not make "an accurate guess" at the number of tablets the applicant had taken on that occasion, the applicant's account of what had happened was more consistent with his having taken 4 to 5 pills and that this would have an effect similar to that produced by consuming 5 glasses of beer in reducing his ability to check his impulses.

16. In conclusion the doctor repeated what he had said in the report which he compiled after his examination of the applicant:

" In conclusion, I am of the opinion that the defendant is not suffering from a formal mental illness and is free of significant psychiatric symptoms. However, his personality make-up is such that he would be susceptible to temptations, vulnerable to dependence on addictive drug, less heedful of consequences of his acts. It was possible that at the material time of committing the alleged acts, he was under substantial influence of the drug, assuming, as he alleged, that he had ingested altogether the ten tablets of Rohypnol, the dose of which was definitely heavy enough to alter the state of his consciousness and reduce release his usually existing inhibition, provided that he had not consumed similar amounts frequently in the recent past. Under this circumstance, although he might be aware of the physical quality of his acts, he might not possess the required mentality to appreciate the consequences of his misdeed. I had also the suspicion that he might not be able to stop himself from doing what he was doing if he had wanted to do so at the time of the offence."

17. In cross-examination the doctor said that the applicant would have been able to tell whether a simple act was right or wrong and that robbery would be "an extraordinary thing" that "should be perceived as wrong by most or every subject" and was something he "should be able to handle without mistake". He then went on to explain in re-examination that it was possible that such a person "might be able to be cognizant with what is happening but unable to stop because it was on an impulse."

18. In his Reasons for Verdict the deputy judge, having summarised the evidence to which we have referred, stated that the question he had to ask himself before considering the applicable law was "whether on the balance of probabilities I accept that the defendant did take these tablets on the night in question keeping in mind that the duty is always on the Crown to prove that the defendant was not under the influence of drugs." He then went on to find that the applicant was not an honest or reliable witness and rejected his evidence.

19. The deputy judge accepted Dr. Lau's evidence "without hesitation", but concluded that since it was based on the hypothesis that the applicant had taken ten rohypnol tablets on the night in question, it was of no assistance to him because he had already rejected the applicant's evidence that he had been under the influence of drugs when he committed the robberies. He found that the applicant "had every intention of doing, and was well aware of what he was doing, when he committed the robberies." In conclusion he stated that he was "satisfied beyond reasonable doubt that the Crown has proved its case on all three charges."

20. Mr. Philip Wong, who appeared for the applicant in this court but not in the court below, advanced two grounds of appeal:

"(1) The learned Trial Judge erred in law in applying the wrong standard of proof in determining whether at the time of the commission of the offences the Appellant did have the requisite mens rea.

(2) The learned trial Judge erred in law in rejecting the evidence from the Appellant by applying the wrong standard of proof which is that the Appellant must satisfy him on the balance of probabilities that on the night in question the Appellant did take the 10 tablets of drugs known as "Cross" which rendered the Appellant not having the requisite mens rea."

21. Mr. Wong submitted that although the applicant was obliged to discharge the evidential burden of raising the issue of intoxication he did not bear the legal burden of establishing that he was so intoxicated that he did not form the intention to commit the robberies.

22. Mr. Bruce for the Crown readily conceded that the judge was wrong in stating that he was required to ask himself whether he accepted on the balance of probabilities that the applicant had taken the tablets on the night in question. Mr. Bruce contended, however, that there was no evidence that it was possible that by taking the tablets the applicant had not formed the necessary intent to commit the crime of robbery. He pointed to the fact that Dr. Lau had accepted that in performing simple acts the applicant should have known whether what he was doing was right or wrong. Moreover, he had agreed that committing a robbery was something that the applicant should have been "able to handle without mistake", and that the applicant's behaviour would have been "analogous with having 5 glasses of beer." Most important, contended Mr. Bruce, was the conclusion which Dr. Lau expressed in his report that the applicant, having taken 10 tablets of rohypnol, might not have possessed "the required mentality to appreciate the consequences of his misdeed" and that "he might not have been able to stop himself from doing what he was doing if he wanted to do so at the time of the offence".

23. Mr. Bruce submitted that at no stage of his evidence did Dr. Lau testify that consumption of that quantity of rohypnol could have rendered the applicant incapable of forming the requisite intent for robbery. That being so, all that remained was the testimony of the applicant himself, and that amounted to nothing more than an assertion that, although he recalled having gone to the three 7-11 stores in order to buy corn soup, powdered coffee and one other article, he was unable to remember what had happened in any one of them, and that during the relevant period of time, he "[felt] that there was nothing meaningful to do".

24. It was Mr. Bruce's submission that in those circumstances the judge's misdirection on the burden of proof as to whether the applicant had taken the rohypnol tablets was irrelevant, and that since the judge had found that the person who had carried out the two robberies was the applicant - indeed, the evidence of the victims that the applicant was the robber on each occasion was not challenged - the only verdicts he could properly have come to were that the applicant was guilty on each charge.

25. There is no dispute between counsel, and we accept, that robbery is a crime requiring a specific intent. This is so because an essential element of robbery is stealing, and part of the basic definition of theft is an intention of permanently depriving the victim of the property concerned.

26. The law relating to self-induced intoxication where the prosecution is required to prove a mental element, such as intent or knowledge, without the option of proving recklessness as an alternative, was stated by Geoffrey Lane L.J. (as he then was) in giving the judgment of the court in R. v. Sheehan and Moore (1974) 60 Cr.App.R. 308 at 312:

"Indeed, in cases where drunkenness and its possible effect upon the defendant's mens rea is an issue, we think that the proper direction to a jury is, first, to warn them that the mere fact that the defendant's mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there. A drunken intent is nevertheless an intent.

Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent."

27. In respect of offences requiring a specific intent this statement of the law applies with equal force to cases of mental impairment resulting from the voluntary taking of a drug.

28. The issue before the deputy judge was whether on all the evidence he was sure that at the time the applicant threatened the staff and took the money from the tills at the two 7-11 stores he had the requisite intent for the crime of robbery.

29. However, the whole thrust of prosecuting counsel's cross-examination of Dr. Lau was directed at the question of whether the applicant would have been able to distinguish between right and wrong rather than whether his consumption of the drug could possibly have rendered him incapable of forming the intention of permanently depriving the victims of the money taken from the tills.

30. At the conclusion of that cross-examination and in the context of the immediately preceding questions which established that if the applicant had taken 10 tablets of rohypnol "he would have been slow; hesitant, slurred in speech", the deputy judge asked Dr. Lau the following question:

"A person in that state would know what he was doing, difficult to restrain himself although knowing it was wrong?"

31. To this imprecise question Dr. Lau replied, "It's possible." It was not clear from that answer whether Dr. Lau understood the deputy judge to have been inquiring whether the applicant "in that state" would have known what he was doing, or whether he thought that the judge had postulated a situation in which the applicant "in that state" knew what he was doing, and was asking whether, if that were so, the applicant would have found it difficult to restrain himself.

32. Counsel for the defence then sought to clarify the matter by asking "It's possible what?" Unfortunately, Dr. Lau's response:

"It is possible that such a possibility exists i.e. a person might be able to be cognizant with what is happening but unable to stop because it was on an impulse."

did not provide a clear answer to the real question which the deputy judge had to resolve, namely whether it was reasonably possible that the applicant did not form the requisite intent. However, when he said that "a person might be able to be cognizant with what was happening" (our emphasis), it seems that Dr. Lau was not excluding the possibility that the applicant did not know what was happening. At the very least, his answer is open to that interpretation.

33. By saying that he accepted Dr. Lau's evidence "without hesitation" but concluded that it was of little assistance because it was based on the applicant's assertion that he had taken 10 rohypnol tablets - an assertion which the deputy judge did not accept - it seems that the deputy judge would have acquitted the applicant had he either believed his evidence as to the consumption of those tablets or thought that that evidence might reasonably have been true.

34. Vague and confusing as Dr. Lau's evidence was, it was possible for the deputy judge to draw from it the conclusion that if the applicant had taken 10 rohypnol tablets that night he might not have had the intent to rob when he took the money from the tills in the two 7-11 stores. We do not know what conclusions he in fact drew from Dr. Lau's evidence; he simply said that he accepted it.

35. Notwithstanding that we are of the opinion that the deputy judge would have been entirely justified in concluding, as he did, from the applicant's testimony that he "had not been under the influence of drugs when he committed the robberies and he had every intention of doing, and was well aware of what he was doing, when he committed the robberies.", we do not think that this would be an appropriate case for the application of the proviso.

36. Where a judge has clearly misdirected himself on such an elementary matter as the burden and standard of proof by saying that he must ask himself whether on the balance of probabilities he accepts that the applicant took the tablets on the night in question, we cannot be sure that he applied the proper standard of proof in arriving at his finding that the applicant "was well aware of what he was doing when he committed the robberies." The only burden cast on the applicant was the persuasive burden of adducing evidence such as to suggest a reasonable possibility that he was so affected by the drug that he did not form the intent to rob.

37. We therefore grant the application for leave to appeal against the convictions for robbery and, treating the hearing of the application as that of the appeal itself, allow the appeal, quash the convictions and set aside the sentences imposed in respect of those two charges.

Having heard counsel's submissions, we order that the applicant be re-tried on both robbery charges.