HKSAR v. FOK LAP YIN, IAN LEE CHRISTOFFER

CACC 291/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 291 OF 2014

(ON APPEAL FROM HCCC NO. 439 OF 2013)

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REASONS FOR JUDGMENT
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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1.  The applicant sought leave to appeal against his conviction on 28 August 2014 after trial before Line J and a jury of one count of murder of Fok Lai Chi (“Mr Fok”) on 16 March 2013 (Count 1) and one count of attempted murder of Irene Fok (“Mrs Fok”) on the same day (Count 2). In addition, he sought leave to appeal against the sentence of 20 years’ imprisonment imposed in consequence of his conviction for the attempted murder of Irene Fok. At the hearing we refused the application for leave to appeal against conviction and, having been informed that in those circumstances the applicant wished to abandon his application for leave to appeal against sentence, we refused that application. We said that we would give our reasons in due course. That, we do now.

The trial

2.  There was no dispute that at about 3:00 a.m. on 16 March 2013, the applicant, then aged 18 years, and his friend Chan Ming-tin (“Chan”) attacked the applicant’s parents, Mr and Mrs Fok, whilst they were asleep in the bedroom at 2/F, 75, Wang Toi Shan Shan Tsuen, Pat Heung.  Mr Fok died of loss of blood and respiratory failure, having received over 100 stab wounds, whilst Mrs  Fok survived the multiple injuries she sustained in the attack, including deep penetrating wounds.

3.  On the arrival of police officers at the Fok home at 03:38 a.m. the applicant, Chan and Mrs Fok emerged from the premises.  All three of them were bloodstained. For his part, Chan had wounds to his hands and left forearm.

The issues

4.  The prosecution case was that the applicant and Chan had planned and executed the attack together, and that the applicant was guilty of the murder of Mr  Fok and of the attempted murder of Mrs Fok.  The defence case was that the applicant was suffering from a psychiatric condition, namely “brief psychotic disorder” and did not or might not have had the guilty mind necessary for his conviction of either offence.  Alternatively, if the applicant had the requisite intent for murder, on the basis of diminished responsibility, the jury ought to find him guilty of the manslaughter only of Mr Fok.  For its part, the prosecution invited the jury to determine that the defence had failed to prove on the balance of probabilities that the applicant had conducted himself as he did on the basis of diminished responsibility.

The prosecution case

5.  In support of its case, the prosecution relied in particular on the evidence of Mrs Fok, the out-of-court statements made by the applicant to police officers in a series of interviews and the evidence of a psychiatrist, Dr Chow.

6.  Noise, including shouting, from the Fok home awoke a neighbour, Madam Wong Lai Fong, at about 03:00 a.m. on 16 March 2013, as a result of which she made a report to the police.  Following his arrival at the premises at about 03:28 a.m., PC 8700 knocked at the door of the Fok home and said: “Police, open up!”  The applicant responded and emerged covered in blood saying, “Help, somebody chopped somebody.”  The applicant discarded a black glove.  Then, Chan crawled out of the premises, bleeding from a cut wound to the left forearm.  Finally, Mrs Fok also crawled out of the premises, covered in blood and unable to speak.

7.  In response to PC 8700’s question, as to what had happened in the premises, the applicant said that while sleeping he had been awoken by his own voice.  Then, he heard the sound of an argument, followed by the sight of a gloved male and female ‘shadow’ chopping his father to death.  He had tried to stop the attackers. 

8.  Having been arrested and cautioned by SPC 54262 at 04:10 a.m. for the offence of wounding, the applicant said nothing.  Mr Fok having been certified dead at Pok Oi Hospital at 04:51 a.m. on 16 March 2013, at about 06:38 a.m. at Pat Heung Police Station, DPC 7308 informed the applicant of his father’s death.  In response, the applicant said :

“ Actually, I previously agreed with ‘Ming Tin’ to do my father and them in.”

9.  In two subsequent video-recorded interviews and one video-recorded crime reconstruction, the applicant revealed to the police details of the plan he and Chan had made to kill Mr and Mrs Fok, and what transpired during its execution.

10.  In the first video-recorded interview of the applicant conducted in the early afternoon of 16 March 2013, the applicant explained that, whilst he was in Form 3 or Form 4 at school, he created fictitious characters on the internet in two MSN accounts, between whom he created a dialogue.  He conjured up their physical forms in his mind. Having read books of psychology and analysed himself, he suspected that he might have some mental problem.

11.  The applicant said that about half a year earlier, he realised that in order to save the world, he had to become the head of an organisation and rescue the world.  To do so, he had to fight against another fictitious evil organisation which he had also created.  He wanted to bring a fictitious character to life and devised a plan to assassinate his family members to earn a reputation and money for himself. 

12.  Two weeks before the attack, the applicant approached Chan, a school friend, and asked him to join in the plan to kill Mr and Mrs Fok.  Chan agreed.  The plan called for the killing of Mr and Mrs Fok, after which the applicant and Chan would blame a fictitious culprit and pretend to give chase.

13.  The applicant said that on the evening of 15 March 2013, he supplied Chan with a pair of gloves and a duplicate key with which to open the iron grille of the ground floor of the village house on the 2^nd floor of which he lived with his parents.  In addition, he informed Chan how to travel to his home.  Finally, the applicant put a pair of grey trousers, a dark blue T-shirt and two knives with paper sheaths in a document pouch which he left on the 3^rd floor of that village house.

14.  By arrangement, Chan arrived at the village house at about 01:30 a.m. on 16 March 2013 and went to the 3^rd floor where he changed into the clothing as planned. The applicant met Chan there and they discussed the execution of the plan.  Having conducted a preliminary reconnaissance of the bedroom and having decided that the sleeping posture of Mr and Mrs Fok was not suitable for the attack, the applicant and Chan withdrew and waited.

15.  At around 03:00 a.m. they returned to the room, where Chan plunged a knife into Mr Fok’s throat.  The latter put up a fight with Chan, in the course of which Chan was wounded.  Nevertheless, Chan managed to stab Mr Fok repeatedly.  For his part, the applicant sat astride Mrs Fok holding her hands around the handle of a knife which he had placed there.  She struggled.  Having overcome Mr Fok, Chan joined him in attacking Mrs Fok.  In doing so, they coordinated their relative positions, so that Chan was able to stab her, whilst the applicant subdued her.

16.  The applicant said that the attack was interrupted by the arrival of the police, whose presence he became aware of by the sound of a door being opened and a light being shone from the staircase.

17.  On her admission to Tuen Mun Hospital in the early morning of 16 March 2013 an emergency operation was performed on Mrs Fok.  She was found to have multiple injuries.  Another operation was undertaken to remove a piece of metal found lodged in her skull. Mrs Fok was treated in an Intensive Care Unit until her discharge on 25 March 2013.

The defence case

18.  The applicant gave evidence in the defence case.  He said that he began to have episodes of memory loss in Form 3 and found out subsequently from school friends what had happened during these episodes.  He discovered about 15 MSN accounts on his computer, but could only remember having set up two or three of them.   His friends, whose names appeared in the friend-lists in these accounts, responded to his enquiries by telling him they had never met the persons identified as account holders.  Such communication that they had, was on the Internet only.  

19.  In October 2012, the applicant found an MSN account in the name of Foxy Li 991 on his computer.  He knew that he was Foxy Li.  In November 2012, he noticed from his MSN records that Foxy Li had created an organisation of which the applicant was the leader and that Foxy Li was discussing with the applicant’s friends how to kill his family members, because they belonged to a rival organization which was intent on stealing the world’s resources and environment.  Not having any memory that he himself had written those messages, the applicant was frightened and angry.  So, he contacted those friends with whom Foxy Li had communications and told them he was just joking.  Since then, there had been no further communication through the account in Foxy Li’s name.

20.  Of the events of 16 March 2013, the applicant said that he had provided Chan with a duplicate key to his home.  Also, he had placed the items of clothing and the two knives in the document bag on the third floor for Chan to collect.  He knew what he did and where he went, but was not in control of himself.  He woke up to reality only on hearing his father screaming, to find himself sitting astride his mother with a knife in his hand.  He handed his knife over to his mother and yelled for help.  He had never intended to kill his mother and had never attempted to stab her. 

Dr Yu

21.  Dr Peter W T Yu, a specialist in psychiatry, said that relying on the information supplied to him by the applicant in a consultation held on 14 May 2014, he diagnosed the applicant as having suffered from a “brief psychotic disorder”.  It was Dr Yu’s opinion that the applicant’s symptom was: delusion, bizarre and grandiose, in that he had an absolute conviction in the belief that he had to become the leader of an organization that would save the world.  So absolute was that belief, that he resorted to killing his own parents.  The delusion caused or induced by brief psychotic disorder was, in Dr Yu’s opinion, an abnormality of the mind.

The prosecution case in rebuttal

22.  Dr Chow, a visiting psychiatrist at Siu Lam Psychiatric Centre, was called to give evidence in rebuttal for the prosecution.  She disagreed with Dr Yu’s diagnosis of the applicant’s condition as “brief psychotic disorder” and his conclusion that, in consequence, he had diminished responsibility due to a brief psychotic episode based on delusion.  She said that persons suffering from brief psychotic episodes would, apart from delusion, experience hallucination, emotional disturbance, and thought disorder, which were noticeable to close family members.  But, she said none of these associative symptoms were observed in the applicant’s case.  In her opinion, the presence of these associative symptoms, made it unlikely that persons with this psychiatric disorder could formulate detailed plans and be able to describe things clearly to the police within hours of their occurrence.  Of the first video-recorded interview conducted of the applicant, Dr Chow described the applicant as being calm, logical, and organised.

23.  Dr Chow disagreed that the applicant had a delusion and that he had acted with an absolute belief or conviction in the subject matter of that delusion.  Rather, the applicant knew that the identities in his MSN account were fictitious or untrue.  In her opinion, everything in the case of the applicant pointed to fantasy, rather than delusion. 

24.  Dr Chow said that feelings of guilt and remorse were to be expected of a person coming out of a delusional state, but the applicant had shown no such feelings during the first video-recorded interview or in their numerous consultations.  In her opinion, the absence of such feelings was the most important component of psychopathic traits.  She said that it was likely that the applicant acted as he did at the time of the offences due of his psychopathic trait.

Grounds of appeal against conviction

25.  Mr John Haynes advanced multiple grounds of appeal on behalf of the applicant in his application for leave to appeal against conviction.  By Ground 1, Mr Haynes submitted that it was a material irregularity by the judge to admit before the jury evidence that Chan had pleaded guilty to the murder of Mr Fok, the subject of Count 1 and that Count 2, in respect of the attempted murder of Mrs Fok, had been left on the file of the court.  That evidence was irrelevant, inadmissible and highly prejudicial to the applicant.  That prejudice was not cured by the judge’s directions to the jury.[1]

26.  By Grounds 2 and 3, it was contended that there was a material non-direction in that the judge failed to direct the jury that “the fact that one party to this killing is, by virtue of diminished responsibility, not convicted of murder, would not affect the question of whether the killing would amount to murder in the case of any other party so charged.”  It was contended that the effect of the non-direction was compounded by the jury being informed of Chan’s plea of guilty to the murder of Mr Fok and that the count of the attempted murder of Mrs Fok against Chan had been left on the Court file.

27.  By Ground 4, it was submitted that the judge’s directions in respect of the applicant’s good character were inadequate in that the judge did not there and then direct the attention of the jury to the evidence relevant to the issues of propensity and credibility.[2]

28.  By Grounds 5 and 6 it was submitted that the judge’s summing-up of the psychiatric evidence was inadequate and unbalanced.  First, thejudge’sstatement to the jury that “a psychopathic trait was something less than a mental disorder[3]” was inaccurate.  Further, that his comments[4] concerning fantasy and/or psychopathic traits vis-à-vis diminished responsibility were wrong.  Then, it was contended that the judge’s description of the evidence had allowed the inference to be drawn that because Dr Chow had consultations with the applicant on multiple occasions, whereas Dr Yu had one consultation only, the former was better placed to give an opinion as to the mental state of the applicant.

29.  By Ground 7, it was submitted that the judge had failed to remind the jury of the evidence relevant to the issue of the applicant’s withdrawal from the joint enterprise in respect of Mrs Fok.

A consideration of the submissions

The issues : verdicts

30.  In his summing-up the judge provided the jury with a written handout reflecting his oral directions in respect of the law relevant to the ingredients of the offences stipulated in each of the counts and in respect of the alternative verdicts that arose.  So, having directed the jury as to the ingredients of the offence of murder, the judge reminded the jury that the applicant’s evidence had been that he had never intended to kill his father.  He directed the jury that if the prosecution failed to prove that intention then the applicant would be not guilty of murder, but in those circumstances he said that the jury were to consider the alternative verdict of manslaughter by an unlawful and dangerous act.  In respect of the latter verdict, he directed the jury as to the requisite conduct to constitute aiding and abetting Chan, as opposed to the applicant’s mere voluntary presence.  On the other hand, the judge directed the jury that, if they were sure that the applicant was a party to the murder of his father, Mr Fok, they were to consider whether or not it was proved on the balance of probabilities that the applicant was suffering from an abnormality of mind which substantially impaired his mental responsibility for the killing, so that his responsibility was diminished and he was guilty of manslaughter only.

31.  Having set out the ingredients in law of the offence of the attempted murder of Mrs Fok, the judge directed the jury that if they were not sure that the applicant was a party to a plan in which it was intended to kill Mrs Fok, they were to consider whether that the applicant was a party to the alternative offence of wounding Mrs Fok, with intent to cause her grievous bodily harm.

32.  Finally, the judge directed the jury as to the issue raised by the applicant of his withdrawal from the plan to kill his parents.  The judge said that if the applicant had done nothing to join in the attack on his parents, he would not be guilty of any offence under either count.  On the other hand, if they were satisfied that he played some part in the execution plan and then changed his mind, they were to consider whether in law he had withdrawn.

The position of the co-accused

33.  In his summing-up, the judge directed the jury as to the position of the co-accused Chan named as the 2^nd accused on the indictment and stipulated in the Particulars of Offence together with the applicant in each of the two counts.  The judge said :[5] 

“ You have heard that Chan Ming-tin pleaded guilty to the murder of Fok Lai-chi and that the charge of attempted murder of Irene was left on the file. Leaving a charge on the file simply means there is no adjudication upon it and that it could be proceeded with should circumstances ever warrant it. The fact that Chan Ming-tin pleaded guilty to murder does not mean that the defendant is or is more likely to be guilty or not guilty of murder. You are told of it so you do not spend your time worrying about what has happened to him and why he is not on trial. In the same way, the fact that Count 2 lies on the file against him is no evidence of guilt or lack of guilt in respect of the case of this defendant on Count 2. You are merely told of the matter to explain his absence from the dock.”

34.  At the arraignment of the applicant and his co-accused on the second day of the trial, 19 August 2014, Chan was convicted of the murder of Mr Fok, on his plea of guilty to Count 1.  At the behest of the prosecution, the judge ordered that the 2^nd count of the attempted murder of Mrs Fok remain on the Court file, not to be proceeded without the leave of the court or the Court of Appeal.

35.  The prospect of Chan pleading guilty to Count 1 had been canvassed at the hearing on the previous day, 18 August 2014.  On that occasion, the court had been informed of the proposed plea, together with the suggestion that he was prepared to plead guilty to assault occasioning actual bodily harm as an alternative verdict to Count 2. As a result, the proceedings on that day were adjourned for the prosecution to take instructions.  However, before the adjournment, on the basis that Chan pleaded guilty to one or more of the counts on the indictment so that he was not tried by the jury, the judge raised with Mr Cahill, who represented the applicant at trial, the issue of what, if anything, he proposed to tell the jury, if the proposed pleas were accepted.  In response, Mr Cahill, appeared to vacillate.  First, he said that he “…would be inclined to tell the jury that..”.  However, as Mr Haynes pointed out at the hearing, it may be that Mr Cahill was interrupted and he had not completed what he intended to say.  Then, he said that he “…would be disinclined to tell the jury that he had pleaded to a lesser offence.”  He went on to say that if the plea was accepted, then the co-accused “would disappear from the indictment” and that in those circumstances “……Ms   Crebbin would have to then amend the indictment.”  In the result, the judge said to Mr Cahill : [6]

“ At the moment, basically, so your better course would be as having a trial completely by yourself and making no reference to what’s happened to the disposal in relation to, if it comes about, the 2^nd defendant.”

For his part, Mr Cahill responded affirmatively, but entered the caveat that was his “first inclination”.

36.  On 19 August 2014, after Chan had been convicted of the murder of Mr Fok and the judge had ordered that the count of attempted murder of Mrs Fok lie on the Court file, the issues canvassed the previous day were revisited :

“ MS CREBBIN: Unless Mr Cahill or the court particularly wants it I don’t intend to get a fresh indictment. Yesterday, if you remember, we raised it and you said you didn’t see the need for it, but obviously if...

COURT: Well, let’s ask Mr Cahill.

MS CREBBIN: Yes.

MR CAHILL: I don’t have any objection to proceeding on the present count (indictment?).

COURT: Because what are you going to do about telling the jury about what's happened to the 2nd...

MR CAHILL: I think as the jury will be sitting there wondering, so I think it’s right and proper that they should be informed in some way.

COURT: You don't mind if Ms Crebbin opens it that he’s pleaded guilty to murder?

MR CAHILL: I think in the circumstances it’s unavoidable.

COURT: The truth is it would be a very difficult thing to keep secret.

MR CAHILL: Indeed, yes, and it would keep the jury wondering in any event.

COURT: So it doesn’t impact on your case in any way.

MR CAHILL: No, I don’t think there is a problem.

COURT:  All right.  Therefore, let me just make a note of that and let me get this down.  So all happy to have current indictment and Ms Crebbin can tell the jury in opening not only that the 2^nd defendant pleaded guilty to the murder but the 2^nd count is lying on the file.  In other words in view of the plea, they have decided it wasn’t in the public interest.”  [Italics added.]

37.  In those circumstances, in opening the prosecution case to the jury Ms Crebbin referred to the fact that Chan had pleaded guilty to the murder of Mr Fok and that the count of the attempted murder of Mrs Fok had been left on the Court file :

“ The defendant before you, Fok Lap-yin, is the son of this couple and their only child. As you are aware from the indictment there was an original second accused in this case, Chan Ming-tin, who was a school friend of the 1^st defendant. Mr Chan has now pleaded guilty to the murder. The attempted murder has been left on file, so that is why he is not in court before you. You don’t have to worry about him or any verdict in relation to Chan Ming-tin. You will hear a lot about him because this is a case that the prosecution say was a joint enterprise between the victims’ son and this Mr Chan but you are not concerned in making any decision in relation to Mr Chan. That has already been dealt with.”

38.  In describing the prosecution case, at the outset Ms Crebbin said :

“ So the prosecution say that this is a case where the victims’ son decided to kill both his parents and he then enlisted the help of this Chan Ming-tin to help him carry out the killing.”

39.  As is readily apparent from the description of the sequence of events, the fact that the jury was informed at all of the plea of guilty to the murder of Mr Fok by Chan and the fact that the Court had ordered the count to lie on the Court file was a direct result of the considered consent by Mr Cahill, on behalf of the applicant, to that course being taken.  Also, as is clear from the discussion between counsel and the judge, they were all alive to the alternative course that could be taken, namely that the jury be told that, although Chan was named jointly with the applicant in the Particulars of Offence of each of the counts on the indictment, they were not trying him and were not to be concerned about what had happened to him or to speculate about him.  Rather, they were to concentrate on the case of the applicant.

40.  Mr Cahill’s decision to consent to the jury being given the information lay well within the ambit of his discretion in representing the applicant at trial.  There were two ways of approaching the issue and Mr Cahill chose to consent to the information being given to the jury.  For his part, when the matter was raised with him in oral argument Mr   Haynes disavowed any allegation of incompetence against Mr Cahill.  He informed the court that he had spoken to Mr Cahill about the matter.  Mr Haynes directed his criticism at the judge.  There was, he said, no good reason to depart from the accepted practice, namely that the indictment be amended to remove reference to the 2^nd accused, whilst naming him in the Particulars of Offence as a party with whom the applicant had committed the offences.

41.  As was pointed out during the hearing, reference is made in the 2015 editions of both Blackstone and Archbold (England and Wales) to the effect that, subject to the operation of the provisions of section 74 and 75 of the Police and Criminal Evidence Act 1984, if the jury are to be informed of the plea of a co-accused named as a joint party to an offence, the consent of the defence is required.

42.  This Court has not been provided with any information as to why it is Mr Cahill took the decision to consent to the jury being informed of the plea of Chan to Count 1 and of the fact that, in his case, the Court had ordered that Count 2 lie on the file.

43.  For her part, Ms Anna Lai invited the Court to conclude that the provision of that information to the jury was not inconsistent with the way the defence case was to be put, and in fact was advanced in evidence.  In particular, although issue was taken on behalf of the applicant in three separate areas: namely, (i) his intention to kill; (ii) diminished responsibility; and (iii) withdrawal from the joint enterprise, the common thread to the applicant’s case was his mental state.  She suggested that it was a significant fact that no issue was taken with the voluntariness of the out-of-court statements made by the applicant.  That was made clear in a pre-trial review.  In those out-of-court statements the applicant admitted that he was the mastermind in the joint enterprise, to which he had recruited Chan.  The applicant gave evidence consistent with that account at trial.  On the other hand, Ms Lai was unable to point to any advantage that Mr Cahill might have hoped to gain for the applicant in consenting to the jury being informed that Chan had pleaded guilty to Count 1, or of being informed that the Court had ordered Count 2 to lie on the file.

44.  The judge’s directions to the jury as to their approach to that information resonate with the crux of Specimen Direction 10.1 of the ‘Specimen Directions in Jury Trials’ issued by the Judicial Institute, namely that the position of the co-accused had no bearing on whether or not the applicant was guilty or not guilty of the offences.

45.  The defence having chosen in a considered way to deal with the matter in one way at trial, Mr Haynes seeks, in effect, to reverse that choice in this court.  In the judgment of Macrae JA in HKSAR v Tsang Man Kit,that issue in general was addressed :[7]

“ In Hong Kong, unlike perhaps other jurisdictions, counsel on appeal is very often not the same as counsel at trial. It is therefore rather easier for appellate counsel to look at the evidence and trial process on paper and argue that something should or should not have been done or said by trial counsel, without a full appreciation of the tactical and forensic decisions which are being made by trial counsel (in some cases experienced criminal practitioners) as the evidence is unfolding. Looked at another way, the fact that counsel did or did not do or say something at trial for tactical or forensic reasons should not readily assist an appellant, simply because his new counsel on appeal thinks that things should have been done differently. Flagrant incompetence is, of course, another matter, but Mr Tse accepts that his complaint underlying this ground could not come anywhere near such a suggestion.

Furthermore, it is not sufficient to shrug one’s shoulders and say that, whatever counsel at trial did, the judge should have stepped in and repaired the damage because ultimately it was his or her responsibility.  Counsel at trial themselves have a responsibility to take matters up before a judge on behalf of their clients if they consider it necessary in their client’s interests, always bearing in mind that sometimes counsel may think it not necessary to do so and that the less said the better. If counsel do not do so, this Court is entitled in appropriate cases to assume that that they did not do so for good reasons.”

46.  We are satisfied that this ground of appeal is without merit.

Diminished responsibility

47.  As noted earlier, the judge’s oral directions in respect of diminished responsibility were reflected in written handouts provided to the jury.  The judge directed the jury :[8] 

“ If you are sure that the prosecution proved that the defendant was a guilty party to the murder of his father in the way I have directed you, you must convict him of the offence of murder unless you find that at the time of the offence he was suffering from an abnormality of 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. Diminished responsibility only arises if you would otherwise convict of murder.

 The law is that it is for the defendant to prove that his responsibility is diminished. He does not have to make you sure of that, but he does have to satisfy you of it on the balance of probabilities, ie he must prove by evidence that it is more likely than not that when his father was killed, his mental responsibility for his actions was substantially impaired. There are three elements which the defence must prove before this defence can be established; they must all be present:

(1) At the time of the killing, the defendant suffered from an abnormality of mind, the word ‘mind’ includes perception, understanding, judgment and will. An abnormality of mind means a state of mind so different from that of an ordinary human being that a reasonable person, in other words yourselves, would judge it to be abnormal;

(2) The abnormality of mind must arise from either a condition of arrested or retarded development of mind, or any inherent cause, or it must be induced by disease or injury. As to these first two elements, although the medical, psychiatric evidence which you have heard is important, you must consider not only the evidence of the doctors, but also the evidence relating to the killing and the circumstances in which it occurred, consider the behaviour of the defendant both before and after that event; and

(3) The abnormality of mind must have substantially impaired the defendant’s mental responsibility for his acts which caused the death. Substantially impaired means just that. You must conclude that the defendant’s abnormality of mind was a real cause of his conduct. The defendant need not prove that his condition was the sole cause of that conduct, but he must show that it was more than merely a trivial one.

  You should approach all of these questions in a broad commonsense way.  If the defence has failed to prove any one or more of these elements and providing that the prosecution has proved murder, your verdict must be guilty of murder.  If, on the other hand, the defence has satisfied you that it is more likely than not that all three elements of the defence of diminished responsibility were present when Fok Lai-chi was killed, your verdict must be not guilty of murder, but guilty of manslaughter.”

48.  The judge first raised with counsel in the absence of the jury the issue of written directions to be provided to the jury on 19 August 2014.  Again, in the absence of the jury, on 20 August 2014 he provided counsel with the first draft of the proposed written directions, including directions in respect of diminished responsibility, and discussions ensued between the Bench and the Bar.  On 25 August 2014, the judge provided counsel with the second draft of the proposed written directions.  Again, discussions took place.  On 26 August 2014, counsel responded in the negative to the judge’s enquiry if issues arose from the proposed written directions.  On 27 August 2014, the judge provided counsel with a third draft of the proposed written directions, which version was provided to the jury during the summing-up.

49.  Although changes were made in other respects in the three drafts of the proposed written directions to be given to the jury, at no stage was there any change in the directions in respect of diminished responsibility.  None was suggested by counsel.  That is hardly surprising, since those directions resonated with Specimen Direction 50.1 and 50.2 in the Specimen Directions of the Judicial Institute.

50.  It follows that the complaint made by Mr Haynes of the suggested omission in the direction is made for the first time in this Court.  In effect, his complaint is that the judge failed to direct the jury that the fact that Chan had been convicted of murder on his own plea did not affect the issue of whether or not the applicant’s culpability was diminished by a disease of the mind so that his responsibility was in respect of manslaughter only.

51.  That much was blindingly obvious.  The direction sought by Mr Haynes was utterly superfluous.  As noted earlier, the judge had told the jury that the fact that Chan had pleaded guilty to murder “does not mean that the defendant is or is more likely to be guilty or not guilty of murder.”  Further, the judge had given the jury the standard direction that they must “decide the case only on the evidence that you have seen and heard.”

52.  In that context, the judge went on to remind the jury that they had received the evidence of two psychiatrists as expert witnesses.  Of Dr Yu’s evidence, the judge said that it was his opinion that “the defendant at the time of the attack was suffering from a brief psychotic episode that was caused by a disease of the mind that you should therefore find his responsibility for the killing was substantially diminished.”[9] Further, Dr Yu’s opinion was that the defendant was “acting under a delusion caused by a disease of the mind.”  By contrast, he said that Dr Chow’s opinion was that the applicant “suffered no psychiatric illness and is not to be trusted to tell the truth about his mental state upon which the diagnosis of brief psychotic order depends.”[10]  Further, Dr Chow’s opinion was “there was no delusion, but just fantasy, which was not caused by disease of the mind and that the defendant’s character exhibited psychopathic traits that fell short of a mental illness.”[11]

Good character

53.  There being no dispute that the applicant had no criminal convictions, the judge gave the jury the standard directions as to good character and its effect :[12]

“ Let me tell you this, the defendant, you have heard, has a clear criminal record. Of course, that cannot of itself provide a defence, but it can help a defendant in two ways. Firstly the fact that he has not been convicted of committing an offence before may mean it is less likely than otherwise to be the case to have committed the crime alleged against him now. Secondly, the lack of previous convictions is going to support a defendant’s credibility. Credibility simply relates to the confidence or lack of it you may have in his truthfulness. These are matters to which you should have regard in the defendant’s favour. It is for you to decide what weight you should give them in the circumstances of this case.”

54.  Notwithstanding his complaint that the judge’s directions in respect of the applicant’s good character were inadequate, Mr Haynes acknowledged that the judge had reminded the jury of evidence relevant to those directions.  First, very soon after giving the good character directions, the judge reminded the jury in particular of the evidence of the neighbour of the Fok family, Ms Wong Lai Fong, that having known him for a long time he found the applicant to be “a good boy, being both polite and respectful”.  Furthermore, she had never heard him shouting out in the manner in which he shouted on the evening of the killing.[13]  Secondly, he said that Mrs Fok had testified that although there had been an argument between Mr Fok and the applicant in February 2013, it was a verbal argument, with “no suggestion of violence”.  Also, it was her evidence that throughout his life the applicant had been “gentle and well-behaved; that there were no problems at school with violence; that he was always respectful to her and her husband.”  Finally, she said of the applicant that the events of the night of the attack had been “totally out of character”.[14]

55.  In the context of the issue of the credibility of the applicant, Mr Haynes complained of the comments or observations that the judge had made in reminding the jury of the applicant’s testimony.  In doing so, the judge reminded the jury that it was the applicant’s evidence-in-chief that in November 2012 he had switched on his computer and seen a discussion in Foxy Li’s MSN account.  The latter’s role was as leader of an organisation he had created to counter the forces of another organisation, to which his family belonged.  They wished to steal the world’s resources and environment.  He was Foxy Li.  The first step in the plan was to kill his family.  The judge reminded the jury that, in cross-examination, it had been suggested to the applicant that was the first time he had mentioned those events.  Further, that he was making up his evidence “…there in the witness box”.  Having said that the applicant denied doing so, the judge went on to explain to the jury :[15]

“ The importance of the suggestion that he was making up there in the witness box, (is) that it would have allowed defence counsel in re-examination to lead evidence that he had mentioned it to his own lawyers or, indeed, to anyone else before going to the witness box and you know there was no such re-examination.”

56.  Similarly, complaint was made of the judge’s observations made during his summary of the evidence of the applicant that, whilst the applicant had claimed in evidence that there came a time when he had “shouted to Chan to stop”, the judge had observed :[16]

“ I think it right to point out to you that he had not claimed that he had told Chan to stop in his interview with the police and he had not claimed it when he was giving what we call his evidence-in-chief when his own counsel was asking questions and if that is an important thing that he told Chan to stop, you might wonder why, but it is a question of fact for you. The mere fact that I point that out to you does not mean that it is a good or a bad point; I stress, it is a question for you. [Italics added.]

57.  The passage in italics was a reminder in specific circumstances of the general direction the judge had given at an early stage of the trial :[17]

“ …as to the facts, you alone are the judges. It is for you to decide what evidence you accept, what evidence you reject, what you are unsure about.

  If I appear to have a view of the evidence or the facts which you do not agree with view, then reject my view.  If I mention or emphasise evidence you think is unimportant, disregard it.  If I do not mention something that you think is important, follow your own view and take that evidence into account.”

58.  The judge was entitled to remind the jury of the context in which the evidence of the applicant was given.  Importantly, he reminded them that as it was a matter of fact, it was for them to determine what weight or importance to attach to the point, if they accepted its validity.

59.  Of the complaint that the judge’s observations were “universally adverse” to the applicant’s case and tended to support the prosecution’s “unsubstantiated contention that the defendant was a liar”, it is to be noted that the applicant had himself admitted in his first video-recorded interview that :[18]

“ At the beginning, I made a fabricated statement in order to protect my, er, companion, so that he wouldn’t commit such a serious offence. Later on, upon reflection, I gave an account of the original facts of the whole incident..”

60.  As he was entitled to do, the judge reminded the jury of that answer of the applicant in the course of the first video-recorded interview, albeit that he did not do so in the context of the issue of the applicant’s credibility.

61.  It is no part of a judge’s duty in giving a fair and balanced summing-up to ignore or conceal the weaknesses of the defence case.

Inadequate and unbalanced summing-up of the psychiatric evidence

62.  The evidence of Dr Yu is relevant to Mr Haynes’s complaint that the judge mis-described to the jury the significance of a psychopathic trait in telling them that the evidence was that it was “…something less than a mental disorder…”.  First, it is to be noted that the judge went on to say, “…and describes characteristics in a person which are antisocial.  It was common ground that neither psychiatrist regarded the defendant as suffering from something called antisocial personality disorder, which is a recognised mental disorder.”  Secondly, it is to be remembered that in reminding the jury of the evidence of the two psychiatrists that the judge did so in the context of the issue of whether or not the applicant suffered from an abnormality of the mind arising from a disease of the mind such that it substantially impaired the applicant’s responsibility for his acts which caused the death of Mr Fok.[19]  In evidence-in-chief the following interchange occurred with Dr Yu :[20]

“ COURT: What is a psychopathic trait?

A. Meaning there is, within the person, the character of being psychopathic, being antisocial. In fact, in DSM-5, there is a diagnosis of antisocial personality disorder. So if you say someone has a psychopathic trait, perhaps we stop short of saying that he or she has an antisocial personality disorder, but he or she has some of the personality characteristics of that disorder.

COURT: And so if you had a psychopathic trait, you haven’t got a disease recognised by DSM-5.

A. Well...

COURT: Unless it becomes an antisocial personality disorder.

A. Yes, perhaps the...

COURT: Because -- is that right?

A. Yes, not the full set of criteria, but there may be some but not yet the full set.

COURT: So psychopathic trait is not of itself a disease of the mind or a symptom of such.

A. No, because...

COURT: Wait, I’m just going to right (write) this down. Unless it becomes an antisocial personality disorder.

A. Yes.”

63.  Dr Yu went on to explain, in answer to questions from counsel for the applicant :[21]

“ Q. ……Now, so we’re clear on this, is a psychopathic trait the same as antisocial personality disorder or is it different?

A. Well, if a person has some of the features of antisocial personality disorder but does not have enough features to make the diagnosis, so a psychiatrist may say that he or she has a psychopathic trait, but not the personality disorder of antisocial nature.

Q. You there in your –you define through the diagnostic code the requirements for a person to have that. Tell me this. If a person had antisocial personality, would he have psychopathic traits? Would he have psychopathic…

A. Yes.

Q. So a psychopathic trait is short of an antisocial personality disorder, is it?

A. Yes. Let us turn to paragraph 2(a), the criterion A, it lists seven symptoms. So there or more is required for the diagnosis. So if you we say a person has a psychopathic trait, maybe he or she has one or two of those symptoms, but not three or more.

Q. Can you explain that a little but more. In your…

A. Yes, I then list the seven symptoms.  And in fact the full set of criteria was attached as an appendix.  So in paragraph 2(a), I list the seven symptoms, which are first, repeated unlawful behaviours; second, deceitfulness; third, impulsivity; fourth, aggressiveness; fifth, reckless disregard for safety of self or others; sixth, consistent irresponsibility; and the last, lack of remorse.  I consider Mr Fok having none of those symptoms.”

64.  In her evidence in chief, Dr Chow explained her understanding of the term psychopathic traits, which she said that she found in the applicant :[22]

“ A. Psychopathic trait means that a defendant bear (s) some characteristic of being a psychopath. Psychopath has three major domains, including affective component, interpersonal component and antisocial behavioural component. In defendant’s case, he’s shown me affective component, including he was superficial, give me shallow emotion and inconsistency in his history. He also lacks the remorse about what he was doing and he shows very limited empathy about the feelings of the others and the injury towards his mother. And he also didn’t accept the responsibility of his act, attribute it to another identity of him, and also the other defendant. Interpersonally, he also manipulate(d) the information and also the other defendant, although he did not have much antisocial behavioural presentation. That’s why I comment him to have psychopathic trait, but not a psychopathic disorder.

Q. For somebody with psychopathic traits, that doesn’t make them diminished; is that right?

A. No.”

65.  There is no merit in this ground of appeal.

Withdrawal

66.  The judge’s oral directions to the jury on the issue of the applicant’s withdrawal from any plan agreed with Chan to kill his parents were reflected in the written handout given to the jury.  The judge directed the jury :[23]

“ Finally I will direct you about the law should you find that it may be the case that the defendant changed his mind after agreeing with Chan Ming-tin on a plan to kill his parents. If the defendant did nothing to join in the attack on either of his parents, he would not be guilty of murder or attempted murder, he would not have done anything, played no part, however great or small, in the execution of the plan. The question of withdrawal from the plan only arises where you find that he had played some part in the execution of the plan and then changed his mind and thereafter did nothing to advance the plan.

  The situation could arise, for instance, if you found that the defendant jumped on his mother, knife in hand, to attack her and thereby constrain her according to the plan, but then decided against going through with it. If it were the case that the fatal blow to the father had by then been struck, the change of mind would not absolve him from any responsibility for murder if murder was established in the way I have directed you. A change of mind will not of itself absolve the defendant from responsibility for what happened after the change of mind in the execution of the plan. He must do something more than just change his mind. The mischief of his help and participation in the attack lives on and so does his responsibility for it.

  Communicating his withdrawal from the joint enterprise to those who decide to continue would obviously be one way of ending the responsibility, although words do not have to be used, words may be impracticable in some circumstances. What is required is something that neutralises the prior assistance. Doing or saying something that tells the other attacker that he is now on his own would be good evidence of effective withdrawal.

  It is a question of fact for you what may amount to withdrawal.  You may well consider that the greater the assistance already given and the nearer in time the change of mind occurs to the fatal act in respect of the father or the wounding in respect of the mother are factors to weigh and consider as they may affect the nature and extent of what is needed for effective withdrawal.  It may be that the only effective way to withdraw is to take some physical action to prevent the attack continuing if words alone in the circumstances were insufficient.  I emphasise that this is a question of fact for you.”

67.  The evidence relevant to that issue came from Mrs Fok and the applicant, both in his evidence and in his out-of-court statements to the police.  Of Mrs Fok’s evidence, the judge reminded the jury that she had been awoken from sleep during the night to discover her son sitting on top of her holding a knife in a manner that suggested he wished to stab her.  She said that as she struggled with him to seize the knife, he placed his other hand around her neck in a stranglehold, although not much force was used.  Of that struggle, the judge reminded the jury that Mrs Fok said :[24]

“  …she struggled to get hold of the knife and that it lasted a long time, although she could not put an actual time on it. She demonstrated the knife, you remember, crossing the palm of her hand, saying it was pointed to her upper stomach; that the blade superficially cut her before she was able to move her hand up and take hold of the handle; that when she did so that the defendant was still holding her, holding somewhere near her shoulders, he was also holding the knife, and she described his hand upon hers as she held on to it.”

68.  She saw her husband struggling with another man, who stabbed him.  Of the subsequent events, the judge said :[25]

“ She said that when the man turned to her the defendant was still holding on to her and that they both held the knife; that she did not want him to get the knife and that they were still struggling for it; that the man said to the defendant, “Is it over?” to which he answered, “Okay, already okay”; that the man then stabbed her on the forearm and then he stabbed her on the back and then he stabbed on the head. She said whilst the other man was stabbing her, the defendant was still holding her, but she could not give the number of times the man stabbed her. She said that the stabbing to her back was forceful.

  She described the defendant moving his body away from hers, altering his position when the other man was stabbing her, but she could not remember whether this made her an easier target for the other man, but the man eventually stopped stabbing her and moved away saying, “Let’s go,” and that her son then said, “Wait,” and followed him.”

69.  Of the controversial issue between Mrs Fok and the applicant, as to whether or not he had handed over a knife or whether she had struggled throughout to gain control of it, the judge said :[26]

“ It is up to you how significant you think the conflict of evidence is over whether the defendant gave his mother the knife or whether she grabbed it. He mentioned handing over the knife in his interview to the police. On the other hand she had a cut to her thumb which she said occurred in the struggle for the knife. The existence of the cut spoken to in the agreed medical evidence is capable of lending support to her version of the event.”

70.  The judge reminded the jury that it was the applicant’s evidence that he “woke up” at the sound of shouting as Chan was stabbing his father.  He found himself astride his mother holding a knife.  Then, the judge said the applicant testified :[27]

“ He said he handed the knife to his mother. He denied attempting to stab her. He said that he had his right hand to her throat. He was asked why that was so. He gave the answer that he could not control himself. He said he was at a complete loss as to what he should do and that his body was totally out of control. He said that he yelled for help and pressed the knife with his hand and that he could not do anything else. He said he did not cause the injuries to his mother.”

71.  The judge went on to remind the jury that in cross-examination, when asked why he had done nothing to stop what was happening, in particular to stop Chan from stabbing his mother, the applicant had said :[28]

“ … that he did not intervene to stop Chan stabbing her as he lacked the energy to do so due to fright.  When asked if there was any other reason, he replied he did not know what he could do.  He maintained that he had shouted for help and shouted that he was going mad when Chan was attacking his father and disagreed with his mother’s evidence that all he ever said then was, “Okay.” 

     He was asked why he did not release his mother and go to protect his father when he awoke from the dreamlike state.  He answered that he was very confused and shocked and could not control himself. He claimed that he shouted to Chan to stop.”

72.  Of that evidence of the applicant, the judge said :[29]

“ I think it right to point out to you that he had not claimed that he had told Chan to stop in his interview with the police and he had not claimed it when he was giving what we call his evidence-in-chief when his own counsel was asking questions and if that is an important thing that he told Chan to stop, you might wonder why, but it is a question of fact for you.”

73.  Of the applicant’s evidence in respect of his mother, the judge said :[30]

“ He maintained that he had released his grip on his mother before Chan stabbed her, saying Chan would definitely have stabbed him if he had not done so. It was suggested to him that he had never decided that he did not want to continue and that he wanted to withdraw from what was going on. He disagreed. It was put to him that he held on to his mother and had not stopped Chan and he answered that he was confused and shocked and could not control himself and did not know what he was doing and the only thing he could do was yelling.”

74.  In his oral submissions, Mr Haynes criticised the judge for not having drawn to the jury’s attention that the attack on Mrs Fok had left her alive.  He submitted that fact begged the question: why did they not finish the job?  That was relevant to the issue raised by the applicant of his withdrawal from the joint enterprise.

75.  Relevant to that issue are the injuries sustained by Mrs Fok and the treatment required to keep her alive.  It was an admitted fact that an emergency operation was performed on her at Tuen Mun Hospital on the morning of 16 March 2013.  She was found to have four deep penetration wounds over the left posterior back near the left scapular region; haemothorax in the left pleural cavity-one of the deep penetrating wounds communicated with the left pleural cavity and lacerations to her lung.  On 18 March 2013, a second operation was performed on her to remove a piece of metal found in her skull.  The general appearance and thickness of the difference of the knife agreed with the metal fragment, which was found to physically fit the chipped tip of the knife.  Mrs Fok was in intensive care for nine days before she was discharged.

76.  Also, it should be noted that in the first video-recorded interview of the applicant, in response to his statement that the attack was interrupted when he saw a light from the staircase lamp, the applicant was asked to describe the sequence of the ensuing events.  He said :[31]

“ Okay, sure. At that time .. I was at the wall corner, still, er, er, er, controlling my-my mother, and then I heard the sound of the door being opened downstairs. I immediately realised that the police come to my rescue, and then, however, at the same time, my body still wished to kill my mother, but I broke down emotionally already at that time. After that, when I saw the yellow light which was shone from the staircase on--on this wall, I immediately ran out--out of the sitting-room, paying no heed to anything, and then went further over to the staircase at once and took off the glove (s), and then went down to join the police.” [Italics added.]

77.  We are satisfied that the judge’s summary of the evidence relevant to the issue of the applicant’s withdrawal from the joint enterprise to kill his parents was a faithful and balanced reflection of that evidence.  There is no merit in this ground of appeal.

Conclusion

78.  For the reasons set out above, we were satisfied that there was no merit in the application for leave to appeal against conviction, which we refused.

[1] Appeal Bundle, page 38 F-M.

[2] Appeal Bundle, pages 37 T - 38 F.

[3] Appeal Bundle, page 63 I-J.

[4] Appeal Bundle, page 70 J-U.

[5] Appeal Bundle, page 38 F-M.

[6] Appeal Bundle, page 358 H-J.

[7] HKSAR v Tsang Man Kit [2015] 2 HKLRD 287; at page 300, paragraphs 33-35.

[8] Appeal Bundle, pages 33 S - 35 G.

[9]Appeal Bundle, page 28 R-T.

[10] Appeal Bundle, page 28 U - 29 B.

[11] Appeal Bundle, page 29 B-F.

[12] Appeal bundle, pages 37 T - 38 F.

[13] Appeal Bundle, page 39 E-G.

[14] Appeal Bundle, page 41 J-O.

[15] Appeal Bundle, page 57 B-F.

[16] Appeal Bundle, page 58 M-Q.

[17] Appeal Bundle, page 29 J-N.

[18] Appeal Bundle, page 215; counter # 78.

[19] Appeal Bundle, page 34.

[20] Appeal Bundle, page 464 I-T.

[21] Appeal Bundle, page 466 Q-T.

[22] Appeal Bundle, page 531 D-L.

[23] Appeal Bundle, pages 36 O - 37 Q.

[24] Appeal Bundle, page 40 A-G.

[25] Appeal Bundle, pages 40 N - 41 C.

[26] Appeal Bundle, pages 41 R - 42 B.

[27] Appeal Bundle, page 55 C-G.

[28] Appeal Bundle, page 58 G-M.

[29] Appeal Bundle, page 58 M-P.

[30] Appeal Bundle, page 59 A-F.

[31] Appeal Bundle, page 242 counter # 395.