THE QUEEN v. NG SO CHING

1988, No 66
(Criminal)

Criminal law - murder - defence at trial limited to provocation - no issue of mental state of accused raised before jury - subsequent evidence suggesting accused might have had defence of diminished responsibility available - how discretion of Court should be exercised - s 83V(1) and (2) Criminal Procedure Ordinance.

[R v Melville (1975) 62 Cr, App R 100 followed.]

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the Court):

1. The Applicant, Ng So Ching, a woman now aged 25, was convicted in the High Court (Hopkinson J. and a jury) on 3 February 1988 of the murder of Madam Leung Cheuk Yin, and sentenced to death. She now seeks leave to appeal against her conviction and we have before us an application for leave to call additional evidence about her mental condition which was not made available at the trial.

2. The case for the prosecution in summary, was that the Applicant was the mistress of a man named Fung Shu Boon who was married to the deceased. Fung resolved that his wife should be killed and finalised his plan on 13 July 1987. The Applicant fell in with the plan. Fung gave her a knife, the keys to his flat and a pair of doctor's gloves, and told her to buy some chloroform. He told her to go to the flat at 5:00 p m on 17 July and wait for his wife to come home. She was to impregnate a towel with the chloroform and use it to overcome her resistance. She was then to kill her with the knife. She was instructed to disconnect the telephone by pulling it from the wall and ransack" the flat to make it look as if there had been a robbery. She was also told to take a change of clothing to put on after the killing.

3. Madam Leung's body was found in the flat. There were numerous abrasions and bruises on the body, and about 60 cut wounds many of which were shallow. There were in a stab wounds two of which penetrated the stomach and chest to a depth of 10cms.

4. The Applicant was arrested on to July. She made a full confession admitting the killing and agreed, on the same day, to take part in a reconstruction of what had happened. This reconstruction was video-taped. All this evidence was admitted before the jury after the judge had overruled objections to its admissibility at the conclusion of the voir dire.

5. The jury viewed the video tape and saw the Applicant demonstrating where she had first hidden; where she had struggled with the deceased; where the body lay; where she had found the second knife she had used; where she had washed that knife; where she had changed her clothes and from where she had taken some ornaments, two cameras and some money to suggest that a robbery had taken place.

6. In the statement she made under caution on the day of her arrest, the Applicant said:

"Because I love Leung cheuk Yin's husband Fung Shu Boon, Fung Shu Boon asked me to kill his wife Leung Cheuk Yin and he would then marry me. Thus I went to Fung Shu Boon's house yesterday and killed Fung Shu Boon's wife with a knife. It was Fung Shu Boon who taught me how to kill his wife."

7. In her statement she said how she had come to meet and fall in love with Fung. He had first "dated" her in January 1985. In the middle of 1986 "they cherished a good feeling towards each other" and later became lovers.

8. She went onto say that she had reached the deceased's flat at about 5:30 p m, bringing with her the knife and gloves provided by Fung, as well as some chloroform. She entered the flat with the keys she had been given. No one was at home. Her account continued as follows:

"     I waited in FUNG Shu-boon's house until around six o'clock when FUNG Shu-boon's wife returned to the house. I wanted to stupefy her with chloroform. But she put up a resistance. Then I stabbed her with a knife. I stabbed her numerous times. Subsequently, FUNG Shu-boon's wife, LEUNG Cheuk-yin, fell on to the floor.

    I was very frightened at that time. I then made a mess of all the things in the house. At the same time, I changed into the clothing which I had brought with me. I put the knife, towel, gloves, my clothes, the keys into two plastic bags together with a set of WALKMAN, two cameras and some gold ornaments which I took from inside the house. Later, I threw these things into a litter-bin."

9. In one part of the video tape, the jury saw and heard the Applicant say this:

"After had come inside, I stood behind the door. I put the bag down, just like what FUNG Shu Boon taught me, I used a hair band to keep my hair in position because my hair easily hung down. After that I took some chloroform and waited for her waited for her to return when it was nearly six o'clock; I heard the sound of the door She returned. Then I tried to use, tried to use the chloroform to cover, to stupefy her, but the thing did not work, then we had a struggle here. She, she resisted, then I used, I took a knife from behind, then I stabbed, and stabbed, stabbed and stabbed. When I saw her nearly stop breathing, I went to the kitchen to get knife. The knives were placed here. I took a table knife and a chopper. I did not know what I was doing. I saw her nearly stop breathing, then I made several more stabs, and then I went to the kitchen, to the toilet to wash the knife."

10. The Applicant gave evidence in her defence and told the jury that she though that Fung must be making a "sick joke" when he first mentioned his plan to dispose of his wife, and she refused to take part. However, she had gone to the deceased's flat that afternoon "hesitating". She was nervous, and felt sick from the fumes of the chloroform she had with her. She decided not to go through with the plan but before she could leave the flat Madam Leung came in. So she decided just to stupefy her with the chloroform and then slip out of the door. Madam Leung struggled with her and pushed her against the wall, and then scolded her, accusing her of trying to kill her. When she tried to get away, Madam Leung pulled her back by her hair, caught hold of her clothing and scratched her on her face and neck. Madam Leung then shouted out obscenities about her mother. She slapped Madam Leung and they fell, struggling, to the floor. Madam Leung then squeezed her neck and continued to scold her. She lost all control of herself and took out her knife to stop her When Madam Leung continued, to struggle with her, she became angrier and so she went to the kitchen and got another knife with which she stabbed Madam Leung again. By this time she was "absolutely mad", as she put it, and did not know what she was doing. She then automatically did the other things Fung had told her to do.

11. The only substantive defence put forward at the trial was provocation, and after hearing submissions, the judge decided to leave provocation to the jury. The question of the mental condition of the Applicant was never made an issue (except, of course, in relation to loss of, self-control in the context of provocation). The Applicant was represented by experienced counsel at her trial (not by Mr Litton who appears for her before us today), of some 15 years' standing. The jury rejected the only defence raised by their verdict.

12. The importance of the application to adduce additional evidence before this Court can be measured by the fact that if we refuse that application, the substantive application for leave to appeal against conviction will fail since Mr. Litton has seen it as his duty to inform us that he is otherwise unable to find any, ground of appeal which he can properly put forward on behalf of the Applicant.

Her own grounds of appeal were as follows:

"     I had no intention to kill the deceased. At the material time, the victim attacked me violently and cursed me and my mother with abusive language. I had tried to leave the scene and was pulled back by the deceased. During the struggle and resistance I was irritated and in a state of insanity, and finally stabbed her to death.

    I now appeal against conviction and sentence of death as I committed the offence out of sudden impulse, I should not be found guilty of murder but manslaughter."

13. The additional evidence we are asked to consider admitting would be based on a report which is before us by Dr Sylvia C.L.C hen who has impressive medical qualifications including Membership of the (U.K.) Royal College of Psychiatrists as well as New Zealand qualifications in the field of psychiatry. She examined the Applicant in prison on 27 December 1988 nearly 18 months after the homicide and some 10 months after the conclusion of the trial.

14. Dr Chen's report speaks of the Applicant's family background explaining how she had "grown deprived of father love in an emotional void, feeling unloved because her mother never hugged her... or expressed her love for ther children." Her father's death from cancer in 1985 had caused a vacuum which was filled by Fung who was her first boyfriend and lover and who "seemed to know everything". She found this man, 10 years her senior, a source of love and dependability, giving her the sense of security denied her by her father. When their relationship developed into sexual intimacy she came to adore Fung so much that she would do anything he asked of her without question - examples are given of her behaviour in her ordinary life designed to please him.

15. The report goes on to say that: "For over two years she had bred a habit of obeying Fung, her lover and idol, almost unquestioningly, and to accept, as a fact, 'his will be done', to the extent of almost automatic obedience."

16. Dr Chan states that the Applicant told her that she was shocked when Fung told her to kill his wife but his order on this occasion was the more compelling because this was the first time he had pleaded with her to do something for him and the tone of anguish in his voice hurt her; she felt compelled to obey out of sheer habit; and his threat that their relationship would end if she did not do as she was told made her fear a terrible and unacceptable loss. Moreover, whenever she expressed her reluctance, fears and doubts to Fung, he would reassure her that nothing could go wrong and she would never be suspected, and he would continue to beg her to carry out the killing.

17. The Applicant told Dr Chen of her confusion and fear during the nights of 15 and 16 July, when she had no sleep and what she did during the morning of 17 July. She said she heard Fung's voice reverberating through her head: "you have to do it - go and do it. No need to be frightened." She felt depressed, lost, anxious and scared and driven by Fung's voice to obey his instructions. Before she when to the deceased's flat she had telephoned Fung again "hoping for a last moment release" but he drove her on and reminded her of his instructions She told Dr. Chen the story she had told the jury about what happened when the deceased came home, adding that from time to time Fung's voice would "cut through a daze".

18. The following is Dr Chen's "Summary and Psychiatric Opinion":

"      The morbid influence of an adverse and absent father figure on the appellant for the first 21 years of her life cannot be altogether discarded in considering her state of min and behaviour in the present alleged offence. It had created in her a weakness, namely, the yearning for a father figure, which found fulfilment in her relationship with Mr. Fung. Out of love and adoration the naive girl developed a habitual pattern of automatic obedience to whatever Mr. Fung asked her to do, asking no questions. Going steady with Mr. Fung in the subsequent two years was the happiest time the appellant had enjoyed so far in her life.

    For two days prior to the alleged offence Mr Fung had been repeatedly entreating her to kill his wife for him, threatening that she would lose everything if she did not comply, and reassuring her repeatedly that everything would be alright. This was repeated on four occasions, and had a hypnotic or mesmerizing effect on her. Since it was her whole happiness which she treasured highly that was at stake, and the prospect of losing everything both troubled and upset and grieved her a lot, and her mental state became very unstable, and emotionally laden Hypnosis or suggestions in this very susceptible unstalbe frame of mind in this vulnerable personality drove the appellant into an abnormal state of mind with a mixture of anxiety, depressive, confused feature, when she was not fully aware of her own wishes or actions; in fact Mr Fung's commands and reassurance was reverberating in her mind all the time, as to impair her own sense of contact with reality and her judgment. Her roaming around in Tsuen Wan was similar to a depressive fugue state when a depressed person roamed around aimlessly in ambivalence and indecisiveness.

    I feel that there is ground for consideration of diminished responsibility in view of her very disturbed state of mind at the material time of the alleged offence."

19. The reception of fresh evidence in the Court of Appeal is governed by s 83V of the Criminal Procedure Ordinance, which is in almost identical terms to the provisions of s 23 of the U.K. Criminal Appeal Act 1968. The following are the relevant parts of our section:

"83V. (1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice

(a)    order the proudction of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b)    order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and "be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c)    subject to subsection (3), receive the evidence, if tendered, of any witness.

(2) Without prejudice subsection (1), where evidence is tendered to the Court of Appeal thereunder the Court, of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if -

(a)     it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the Appeal; and

(b)     it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it."

20. In view of the similarity of the U.K.. provisions to our own, and the facts of the case before us, R v Melville (1975) 62 Cr App R 100, is particularly useful. In that case, on a trial for murder, the only substantial defence raised was one of provocation, and the jury convicted the accused of murder. The pre-trial medical reports had made it clear, that in the opinion of the two highly qualified psychiatrists concerned, no medical issue could be raised.

21. A single judge gave leave to appeal out of time and the Court of Appeal, Criminal Division, had to consider an application for leave to call fresh medical evidence two years after the conviction. The application was refused and there being no other grounds, the appeal was dismissed. Lord Widgery L.C.J giving the judgment of the Court made certain observations at pp 104-105 about the proper division of responsibility between the Court and the Home Office which, though taken into account in exercising the discretion of the Court, are not relevant in our case.

22. The authorities both in England (R. v Lattimore and other's (1975) 62 Cr App R. 53 and in Hong Kong (Mok Chonq-Keung v R., Criminal Appeal No, 9 of 1986: unreported) make it clear that subsection (1) and subsection ( 2) respectively of s 23 (U.K.) and s 83V (Hong Kong) are independent of each other so that even if the Court is not obliged on the facts to receive further evidence in accordance with subsection (2), that subsection in no way restricts the Court's power to receive further evidence under subsection l) where the Court thinks it "necessary or expedient in the interests of justice".

23. In Melville the Court held that the expression "on an issue" in subsection (2) (a) meant on an issue which was raised at the trial and was subject of the appeal to the Court of Appeal. We respectfully agree with this construction and, indeed, Mr. Litton did not suggest that subsection (2) was relevant to this case, basing his application squarely on subsection (1). We adopt, and apply to our case, the words of Lord Widgery at p 104: "there is no issue which was litigated in the Court below and which is now to be argued on the basis of the fresh evidence."

24. In exercising our undoubted discretion:, under s 83V(1) we respectfully follow the approach of the Court in Melville which, at p. 103, cited, with approval the principles stated by Fenton Atkinson L.J. in the unreported case of Dodd (10 June 1971):

"In the view of this Court, cases must be rare indeed when the defence have chosen to run at the trial as their only defence the defence of accident or provocation, or a combination of the two, and when that defence has failed can consult and call a psychiatrist, or a psychiatrist seeing the appellant for the first time many months after the event, with view to getting a re-trial to run a defence of diminished responsibility. It may well be that if subsequent evidence of diminished responsibility was really overwhelming, the Court, might well feel moved to substitute a verdict of manslaughter, or to order a new trial."

25. Mr Litton, conscious of his duty to his client, and to this Court, felt unable to argue that Dr Chen's report as it now stands contained evidence of such a compelling nature that would satisfy the test laid down in Melville, an authority which he did not seek to doubt. However, he does submit that if he were given an opportunity to examine Dr. Chen orally he would be able to direct her attention to the matters relevant to the defence of diminished responsibility set out in s 3 of the Homicide Ordinance.

26. With respect, we think that this is not an acceptable approach. We have the report of Dr Chen before us. We must bear in mind that her evidence would inevitably be based on her report, however it might be modified or expanded in examination in chief or cross-examination. For obvious reasons the Court must be slow to admit further evidence in a case of this kind where the defence at the trial has deliberately chosen not to raise the mental state of the accused person before the jury. We cannot say, on the material before us, that the potential evidence about the Applicant's mental state is such that persuades us to accede to this application, in the words of s.83v, as being "necessary or expedient in the interests of justice".

27. The defence which would be sought to be raised with the aid of Dr Chen's opinion would be, in effect, that the Applicant was so besotted by her love for Fung that it is possible that at the time she attacked Madam Leung so brutally and took her life, Fung's malevolent influence over her was such that it overwhelmed her reason, conscience and judgment. It seems to us that this is not "abnormality of mind" of the kind contemplated by the defence of diminished responsibility provided for by s.3 of the Homicide ordinance. Moreover, it must be observed that on the Applicant's own version of the terrible events immediately before the killing, given both to the jury and to Dr Chen, she had a change of heart and tried to leave the flat before she was pulled back and assaulted by Madam Leung. At that crucial moment, therefore, on her own story, she had overcome Fung's dominion over her.

28. This is a tragic case. Sadly, it is not the first time that a husband or wife has been cruelly disposed of to further a love affair between a man and a woman.

29. In all the circumstances, we feel bound to dismiss the application for leave to call additional evidence and, in the light of Mr. Litton's concession, the a for leave to appeal must be dismissed.