Case Details

Citation

HKSAR v. JUTTING, RURIK GEORGE CATON, CACC 361/2016

Case Number

CACC 361/2016

Court

Court of Appeal

(CA)

Decision Date

9 February 2018

Parties

Applicant(s):

HKSAR

Respondent(s):

JUTTING, RURIK GEORGE CATON

For Applicant(s):

Mr Gerard McCoy, SC and Mr Timothy Parker, instructed by Vidler & Co, assigned by Director of Legal Aid

For Respondent(s):

Mr John Reading, SC, Counsel on fiat and Mr Lenny Cheng, SPP(Ag), of the Department of Justice

HKSAR v. JUTTING, RURIK GEORGE CATON

[2018] HKCA 5

Court of Appeal9 February 2018

CACC361/2016 HKSAR v. JUTTING, RURIK GEORGE CATON

CACC 361/2016

[2018] HKCA 5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 361 OF 2016

(ON APPEAL FROM HCCC NO. 183 OF 2015)

____________

BETWEEN
	HKSAR
		Respondent
	and
	JUTTING, RURIK GEORGE CATON	Applicant

____________

Before: Hon Lunn VP, Macrae JA and Zervos J in Court

Dates of Hearing: 12 and 13 December 2017

Date of Judgment: 9 February 2018

_______________

J U D G M E N T

_______________

Hon Lunn VP (giving the Judgment of the Court) :

1. The applicant sought leave to appeal against his conviction after trial by Deputy Judge Stuart‑Moore and a jury of two counts of murder, namely of Ms Sumarti Ningsih, on or about 27 October 2014, (Count 1) and of Ms Seneng Mujiasih, on 1 November 2014, (Count 2) contrary to Common Law.

2. On arraignment on 24 October 2016, the applicant pleaded not guilty to both counts of murder, but guilty to manslaughter by reason of diminished responsibility. Those pleas were rejected by the prosecution. The applicant pleaded guilty to Count 3, namely preventing the lawful burial of Ms Sumarti Ningsih, contrary to Common Law.

The trial

3.In the early morning of 1 November 2014, the emergency services responded to a ‘999’ telephone call made by the applicant and went to his flat at The J Residence, 60 Johnson Road, Wanchai. There, they encountered the applicant. The corpse of Ms Seneng Mujiasih was lying in a pool of blood in the living room. Her throat had been cut. She was an Indonesian citizen working in Hong Kong as a domestic helper. The corpse of Ms Sumarti Ningsih was found in a suitcase on the balcony of the premises. Her throat had been cut too. She was an Indonesian citizen visiting Hong Kong. Traces of cocaine were found on no fewer than 32 plastic bags found on the premises.

The prosecution case

4. Video clips and photographs contained in the applicant’s iPhone were adduced into evidence in the prosecution case through admitted facts, as were multiple video recorded interviews conducted of the applicant by police officers following his arrest on 1 November 2014. In the latter, the applicant admitted having killed both victims and having abused and tortured Ms Sumarti Ningsih over several days prior to her death.

The defence case

5. The applicant did not testify at trial but called Dr Richard Latham, a consultant forensic psychiatrist in the United Kingdom, and Professor Derek Perkins, a visiting Professor of Forensic Psychology at Royal Holloway University of London, in the defence case. They each expressed the opinion that the applicant was suffering from four mental disorders: namely, alcohol abuse disorder; substance abuse disorder (cocaine); sexual sadism disorder and narcissistic personality disorder. They testified that, in consequence, the applicant was suffering from an abnormality of mind induced by disease. Dr Latham testified that the applicant’s abnormality of mind substantially impaired his ability to control his behaviour. It was the defence case that, in consequence, the applicant’s abnormality of mind substantially impaired his mental responsibility for his acts of killing the two victims.

The prosecution case in rebuttal

6. In rebuttal, the prosecution adduced evidence from Dr Chow Kit Wan Kavin, an associate consultant psychiatrist and visiting psychiatrist at Siu Lam Psychiatric Centre, and Dr Oliver Chan, an associate consultant psychiatrist at Castle Peak Hospital and visiting psychiatrist at Siu Lam Psychiatric Centre. Each of them expressed the opinion that the applicant was suffering from alcohol abuse disorder and substance abuse disorder (cocaine). In addition, Dr Chow expressed the opinion that the applicant was suffering from sexual sadism disorder. Although both of them expressed the opinion that the applicant had traits of narcissistic personality, in their opinion it was not a disorder. Although it was their opinion that the applicant suffered from an abnormality of mind, nevertheless it was also their opinion that it had not substantially impaired his mental responsibility for his acts of killing.

The summing up

7. In the summing up, the judge directed the jury that the verdicts open to them on each of the two counts were verdicts of murder or of manslaughter by reason of diminished responsibility. The judge provided the jury with lengthy written directions, which he recited orally during the course of the summing up. He said that the issue for the jury was:^{^[1]}

“ …whether, at the time of the killing, the defendant was suffering from an abnormality of mind arising from disease or inherent cause which must have substantially impaired his mental responsibility for what he did. That is the point.”

Grounds of appeal against conviction

8. In the grounds of appeal against conviction, Mr Gerard McCoy SC submitted that the judge “wrongly directed the jury that only a “disorder” (as a psychiatric diagnosis) could constitute an “abnormality of mind” for the purposes of the defence of diminished responsibility. Further, the judge had wrongly directed the jury in written directions that, in their consideration of whether it was established that the applicant suffered from an abnormality of mind, in respect of narcissistic personality and/or sexual sadism, they needed to find that the applicant suffered from a disorder of that nature in order to be satisfied that he suffered from an abnormality of mind. It was contended that the judge ought to have directed the jury: “Did the defendant suffer from narcissistic traits and/or sexual sadism traits which constituted a state of mind so different from that of ordinary human beings that you consider it to be abnormal?”

9. Then, it was submitted that the judge had misdirected the jury as to the meaning of the word “substantial (sic)” as set out in section 3(1) of the Homicide Ordinance, Cap. 339. It was an ordinary English word and there was no need to elaborate on its meaning.^{^[2]} It was contended that, having directed the jury that the word “…is a very ordinary word in the English language and you know what it means”, the judge had introduced “additional confusing complexities” in going on to direct the jury:^{^[3]}

“ …obviously, if it is trivial then it is not substantial; if it is total, it would be. But it does not have to be total, it does not have to be total. It must be a substantial impairment and that is what it means, somewhere between total and trivial. You decide and nobody else.”

10. Next, it was submitted that the judge had erred in permitting the respondent’s psychiatrists to express their opinions as to whether the applicant’s mental responsibility was substantially impaired at the material times. It was contended that the judge had erred in ruling, in advance of evidence being adduced by the parties before the jury through their mental health experts, that the reports of the respondent’s psychiatrists could be adduced in full, including their opinions on whether the applicant’s mental responsibility for his acts of killing was substantially impaired. In consequence, in the defence case evidence was led on behalf of the applicant, through Dr Latham and Professor Perkins, of their opinions on that issue. That being the “final issue”, all that evidence was inadmissible. Further, the expression of an opinion that the applicant’s mental responsibility for his acts of killing was substantially impaired was outwith the ambit of medical expertise. Rather, it was a value judgment.^{^[4]}

11. Finally, it was submitted that the judge had wrongly directed the jury to return the same verdict on each count, albeit that he had told the jury that was his “advice” only.^{^[5]}

The respondent’s submissions

12. In his written submissions for the respondent, Mr John Reading SC acknowledged that, in his directions to the jury, the judge equated the disorders of alcohol abuse, cocaine abuse, sexual sadism and narcissistic personality with a disease of the mind. The judge told the jury that it was the defence case that “the defendant suffered from an abnormality of mind induced by those diseases” and the prosecution acknowledged, pointing to the evidence of both their experts that the defendant had alcohol abuse disorder and substance abuse disorder, that the defendant “may well have an abnormality of mind”.^{^[6]} In his oral submissions, Mr Reading submitted that the questions posed in the directions given in Part B of the written directions were appropriate.

13. Mr Reading submitted that the judge did not err in permitting evidence to be adduced by the psychiatrists called by the prosecution of their opinion that the applicant’s mental responsibility was not substantially impaired at the material times. An expert witness may express an opinion, even in respect of the ultimate issue, provided it is left to the jury to decide whether to accept that evidence or reject it.^{^[7]} Having reminded the jury of the evidence of the four expert witnesses, the judge directed the jury “it is your decision what evidence you accept and what evidence you do not accept.” ^{^[8]}

14. Mr Reading invited the Court to note that the judgment of the Supreme Court of the United Kingdom in R v Golds, relied upon by the applicant to support the proposition that ordinarily in a murder trial where diminished responsibility was an issue the judge should not attempt to define the word substantially in the phrase “substantially impaired”, was delivered after the conclusion of the applicant’s trial. Further, the judgment of Lord Hughes JSC, with whom all the other judges agreed, involved a construction of the amended provisions of the Homicide Act 1957, as amended in 2009. There was no such amendment to the legislation in Hong Kong.

15. Mr Reading acknowledged that the judge had told the jury in respect of the two counts on the indictment: ^{^[9]}

“ …perhaps in this case, both verdicts should be the same, whatever they are, murder or manslaughter.”

However, he invited the Court to note that immediately in advance of that statement, the judge had said:

“ I cannot tell you, but I would like to advise you that…”

16. Furthermore, Mr Reading pointed out that when the judge raised the issue of potentially inconsistent verdicts with counsel Mr Tim Owen QC, leading counsel for the applicant at trial, had said:^{^[10]}

“ …my view is that it would be advisable for the jury to be given a strong indication… perhaps without mandating it, but a strong indication that they may think that in the circumstances the evidence would lead them to return same verdict on both counts, that take a different view would be surprising.”

17. Finally, Mr Reading pointed out that in directing the jury in respect of the method by which verdicts would be taken from them, the judge made it clear that separate verdicts would be taken on each count.^{^[11]}

A consideration of the submissions

18. In his directions to the jury in respect of the issue of manslaughter by reason of diminished responsibility, the judge read out the operative provision of section 3 of the Homicide Ordinance:^{^[12]}

“ Where a person kills another, he shall not be convicted of murder if he was suffering from such abnormality of mind arising from any inherent causes or induced by disease or injury as substantially impaired his mental responsibility for his acts in doing the killing.”

19. In addition to his oral directions in respect of the partial defence of diminished responsibility, the judge provided the jury with written directions.^{^[13]} He directed the jury that it was for the defendant to prove on the balance of probabilities only that his mental responsibility was diminished. Of the three elements of which proof was required, in his written directions the judge said that proof was required that:^{^[14]}

“ 1. At the time of the killing the defendant, on the balance of probabilities, suffered from an abnormality of mind.

The word mind includes perception, understanding, judgement, willpower and self-control.

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 have arisen from either an inherent cause or have been induced by disease or injury.

As to these first two elements, although the evidence of Dr Latham and Professor Perkins is important, you must consider not only the evidence of the psychiatrist and psychologist who gave evidence for the defence, but also the evidence relating to these killings and the circumstances in which they occurred. Consider the behaviour of the defendant both before and after the killings and take into account also what the two psychiatrists called by the prosecution had to say. It is your decision what evidence you accept and what evidence you do not accept.

3. The abnormality of mind must be shown on a balance of probabilities to have substantially impaired the defendant’s mental responsibility for what he did when he caused these deaths.

Substantially impaired means just that. You would have to conclude that his abnormality of mind was a real cause of the defendant’s conduct. The defendant need not prove that his condition was the sole cause of it but he must show that it was more than a merely trivial one which made no real or appreciable difference to his ability to control himself.”

20. In addition, in his oral directions, the judge gave context to the directions of law by reference to the relevant evidence:^{^[15]}

“ The evidence given by three of the psychiatrists, that is to say all three, Dr Latham, Dr Chow and Dr Chan, was that there is here an abnormality of mind which goes to the first section which is numbered ‘number (1)’. They have all said there was an abnormality of mind because of the disorders caused by alcohol and cocaine. Alcohol use disorder they called it, and substance use disorder (cocaine). They all agreed about that.

There were other disorders found by Professor Perkins and by Dr Latham, and Dr Chow agreed with one of them; that is to say the sadism disorder, those three agree. The person who did not agree, of course, was Dr Chan, who found that there were traits of sadism, sexual sadism disorder but it did not quite meet the level required for the disorder itself. Whether that matters or not, I do not know, it is up to you.

The other one was narcissistic personality disorder. Both Dr Chow and Dr Chan felt that there were traits of that disorder but not that it was a disorder in itself. Dr Latham and Professor Perkins both felt that it was. So you have evidence then that there is an abnormality of mind, at least, based upon cocaine and alcohol.”

21. Then, the judge went on to address the second element:^{^[16]}

“ …the next question against the number ‘(2)’, ‘must have arisen from inherent cause or induced by disease or injury’. As I told you earlier, Dr Latham said it can be regarded as a disease. The doctors find it very difficult to adopt the use of that word ‘disease’ for these disorders because (the) DSM book of these disorders refers to them as disorders, whereas “disease” is more of something you can treat in a different way, like schizophrenia …

But as you heard, there is no dispute at all that if the law wants to call these diseases, then we should call them diseases, and I can tell you that, therefore, you can regard the cocaine and the alcohol abnormalities, or disorders, as diseases. Whether they are inherent or disease probably does not matter. I thought Mr Owen made a perfectly good point that if there is a personality disorder as well, it was inherent – Dr Latham did not think so, you call that a disease, he said – whichever way, disease or inherent, you have evidence that it was there. So (1) and (2), the doctors basically are agreed about, (1) and (2) on your form there. Abnormality of mind, they say yes; (2) disease, yes.”

22. Of the third element, namely that it be proved that the defendant’s abnormality of mind substantially impaired the defendant’s mental responsibility for what he did when he caused the deaths, the judge said:^{^[17]}

“ Well, ‘substantial’ is a very ordinary word in the English language and you know what it means and if there is any doubt about that – obviously, if it is trivial then it is not substantial; if it is total, it would be. But it does not have to be total, it does not have to be total. It must be a substantial impairment and that is what it means, somewhere between total and trivial. You decide and nobody else.”

23. Of their approach to the evidence of experts, the judge directed the jury:^{^[18]}

“ If we had trial by experts, we would not need a jury. We have experts to help us with the knowledge that they have gained through their skills, but all they can do is tell you what they think. But we have trial by jury and so you use what you have heard from them along with all of the other material as well to decide whether, here, there was a substantial impairment.”

24. Before reading to the jury the two pages of written directions under the rubric ‘Questions needing a decision on the issue of Diminished Responsibility’, the judge explained the need for those directions:^{^[19]}

“ Now, the complication in this case comes from the drugs and the alcohol, albeit there is also a further complication, that there may be two other disorders which are important - it depends on your view of that.”

25. The written directions were divided into Part A and Part B and posed a sequence of questions, together with accompanying notes.

“ Part A:

1. At the time of the killings, did the defendant suffer from an abnormality of mind, namely

1.1 Substance Abuse Disorder (cocaine); and/or

1.2 Alcohol Abuse Disorder?

(Note: all the Defence and Prosecution experts agree on these diagnoses.)

2. If “yes”, does the abnormality of mind arise from:

2.1 Any inherent causes; or

2.2 Disease or injury?

Note: again, all of the experts were agreed that the answer is “yes”.

3. If “yes” to (1) and (2), then was the defendant’s consumption of cocaine and/or alcohol the result of an irresistible craving for or compulsion to take cocaine and/or alcohol?

Note: In answering question (3), you must ask yourselves whether the defendant’s taking of cocaine and/or alcohol was really something he was able to choose to do by exercising willpower and self‑control or, on the other hand, was his taking of cocaine and/or alcohol in reality inseparable from the substance and alcohol abuse disorders? Put another way, was this a failure by the defendant to resist his impulses to behave as he actually did, or was this a virtual inability to resist them resulting from his addictions? In answering these questions you should take into account the defendants agreed narcissistic and sexually sadistic traits. Furthermore, if it is your view that the defendant suffers from Narcissistic Personality Disorder or Sexual Sadism Disorder, you should take this also into account.

4. If you decide that the answer to (1), (2) and (3) above is “yes”, did the cocaine and/or alcohol disorders substantially impair the defendant’s mental responsibility for the killings?

If you answer “yes” to question 4 then you must find the defendant not guilty of murder, but guilty of manslaughter by reason of diminished responsibility. You do not, in that case, need to consider Part B.

5. If you take the view that the defendant has not proved on a balance of probabilities that the cocaine and/or alcohol disorders have substantially impaired the defendant’s mental responsibility for what he did when causing these deaths, you need to go on to consider whether the other disorders he is said to have been suffering from did so (see part B).”

26. Having read out to the jury paragraphs 1, 1.1 and 1.2, the judge said:^{^[20]}

“ I cannot tell you there is an abnormality. You will have to decide whether there was an abnormality, but I remind you simply that everyone agrees that there were those two diagnoses, that is to say, the experts all agree.”

27. Then, having reminded the jury that Part B was concerned with “the other two disorders which, again, you have been asked to consider on the basis particularly of the evidence of the two defence experts”, the judge moved on to read those directions to the jury:

“Part B:

1. At the time of the killings, did the defendant suffer from an abnormality of mind (other than alcohol and substance abuse disorders) i.e. did he suffer from:

1.1 Narcissistic Personality Disorder (NPD); and/or

1.2 Sexual Sadism Disorder (SSD)?

2. If yes to (1), then did that disorder (or either of them) arise from:

2.1 Any inherent cause; or

2.2 Disease or injury?

3. If yes to (1) and (2), did these disorders substantially impair the defendant’s mental responsibility for the killings?”

28. In his oral recitation of the written directions in respect of the ‘Note to question (3)’ the judge did not persist in the use of the acronyms, NPD and SSD, to describe the two disorders. Rather, he used the full terms. In addition, he omitted reading part of the written direction.

“ Note to question (3): you must focus on the impact of the narcissistic personality disorder and sexual sadism disorder and the defendant’s mental responsibility for the killings. You know that he had consumed cocaine, alcohol and Red Bull before the killings. Even if you find that the defendant would not have killed if he had not consumed the drugs and alcohol, that does not mean that the defendant’s responsibility was not diminished by these other disorders [-NPD and SSD. You might find, for example, (although it is entirely a matter for you) that the alcohol and drugs disinhibited the defendant -lowered his ability to resist-] and that, in that state, his narcissistic personality disorder and/or sexual sadism disorder operated so as to substantially impair his responsibility. In that case you would find the defendant Not Guilty of murder but Guilty of manslaughter by reason of diminished responsibility. [Italics added-omitted in the judge’s oral recitation.]

What is really important in answering Question 3 is to focus on the effect of the narcissistic personality disorder and sexual sadism disorder on the defendant’s mental responsibility.

So if you answer ‘yes’ to Question 3 of Part B, you should find the defendant Not Guilty of murder but Guilty of manslaughter by reason of diminished responsibility.

Finally, if you answer ‘no’ to any of the questions in Part A and any of the questions in Part B, then in that case, provided you are sure that the prosecution has proved murder beyond a reasonable doubt, you should find the defendant Guilty of murder.”

The written submissions and proposed Directions to the Jury filed by the parties at trial

29. At the start of the trial the judge had provided the parties with “Draft Directions” of proposed directions of law to be given to the jury in the summing up and had invited the parties to make submissions. The proposed directions were separated into three parts under the headings: “Definition of Murder”, “Manslaughter by Reason of Diminished Responsibility” and “Drugs and Alcohol”. Counsel for the applicant at trial, namely Mr Tim Owen QC, Mr Clive Grossman SC, Mr Timothy Parker and Mr David Cheung provided the judge with written submissions and a document entitled “Defence Draft Proposed Directions to the Jury”, dated 27 October and 2 November 2016 respectively ^{^[21]}. For its part, the respondent filed with the court written submissions dated 2 November 2016.^{^[22]}

30. The “Defence Proposed Directions to the Jury” included a list of questions in respect of diminished responsibility that was divided into Part A and Part B. Those drafts of Part A and Part B were replicated to a very large degree in the written directions handed to the jury. The document handed to the jury in respect of Part B was a verbatim replication of the defence draft, save that the judge introduced acronyms to describe narcissistic personality disorder and sexual sadism disorder, namely NPD and SSD respectively, and an inconsequential grammatical change in the final paragraph.

31. Notwithstanding that the questions posed and the directions given in Part B were identical to those sought by the defence at trial, nevertheless, Mr McCoy submitted that the judge had fallen into error. In answer to a question from the Court, Mr McCoy said that it was not alleged that the applicant had been incompetently represented at trial. But, nevertheless, there had been an error. He said that the prosecution had lent its support to the erroneous direction. The error lay in the judge’s failure to direct the jury to have regard not only to the disorders of narcissistic personality and sexual sadism but also to traits of narcissistic personality and sexual sadism. For his part, notwithstanding the fact that he had been junior counsel to Mr Owen at trial and that he was a signatory to the Defence Draft Proposed Directions submitted to the judge at trial, including the questions posed and directions given in Part B, Mr Parker said that was unable to assist the Court at all as to how that alleged error came about. We regret to say that we were unimpressed by his reluctance to provide the Court with any explanation at all.

32. It is clear from the Defence Submissions and the Defence Draft Proposed Directions that the purpose of dividing the questions to be posed of the jury into Part A and Part B was to permit the issue of the voluntary/involuntary consumption of cocaine and alcohol by the defendant to be addressed in Part A.

33. In the defence submissions at trial, it was contended that the judge’s proposed directions were inadequate. They were based on the judgment of Lord Hutton in the House of Lords in R v Dietschmann ^{^[23]}. In that case, although the defendant was intoxicated, there was no evidence of an alcohol dependence syndrome. Here, there was undisputed evidence of the applicant’s cocaine and alcohol abuse disorders. Accordingly, having regard to the judgment of the Court of Appeal of England and Wales in R v Stewart ^{^[24]}, cited with approval in the judgment of this Court in HKSAR v Chiu Wai Kan Vicken ^{^[25]}, it was submitted that:^{^[26]}

“ …the defendant is entitled to rely upon his intoxication by drugs and alcohol as itself diminishing his responsibility if: (i) he suffered from a dependence disorder constituting an abnormality of mind (which is common ground in this case); and (ii) as a result of the disorder, his consumption of drugs and/or alcohol was as a result of a sufficiently strong craving so as to be fairly regarded as involuntary.”

34. In the Defence Draft Proposed Directions it was suggested that the matter be dealt with by directing the jury in the following way:^{^[27]}

“ …you must ask yourselves:

(i) Was the Defendant’s consumption of drink and drugs really ‘voluntary’, or was it in reality driven by the substance and alcohol abuse disorders from which he suffered? And;

(ii) Was this a failure by the defendant to resist his impulses to behave as he actually did, or an inability, resulting from his addictions, to resist them?

You should address this issue by the following questions I have set out in writing for you in Part A of the document I have given you.”

35. As noted earlier, question 3 of Part A posed the question relevant to this issue, namely “… was the defendant’s consumption of cocaine and/or alcohol the result of an irresistible craving for or compulsion to take cocaine and/or alcohol?” The accompanying note to that question replicated verbatim the text of the defence draft proposed directions in respect of Part A. In addressing the issue of whether the applicant’s consumption of cocaine and/or alcohol was voluntary or involuntary, the jury were directed: ^{^[28]}“…take into account the defendant’s agreed narcissistic and sexually sadistic traits. Furthermore, if it is your view that the defendant suffers from Narcissistic Personality Disorder or Sexual Sadism Disorder, you should take this also into account.” [Italics added.]

36. As the judge made clear in his ‘Note’ to questions 1 and 2 of Part A, all the experts agreed that, having regard to the applicant’s disorders of cocaine abuse and alcohol abuse, he suffered from an abnormality of mind and all the experts agreed that the abnormality of mind arose from disease. The first of the controversial issues that arose thereafter was whether or not the applicant’s consumption of alcohol and/or cocaine was voluntary or involuntary. It was in that regard only that the jury was invited to have regard, inter‑alia, to the evidence of the applicant’s “agreed narcissistic and sexually sadistic traits” and, if they accepted the evidence, “…that the defendant suffers from Narcissistic Personality Disorder or Sexual Sadism Disorder.” Clearly, the relevance of the applicant’s narcissistic and sexually sadistic traits was only to the issue of his willpower to resist the craving to consume cocaine and/or alcohol, not to the issues raised in the first two questions.

37. Of course, the issue of the applicant’s voluntary/involuntary consumption of cocaine and/or alcohol only arose in respect of the questions posed in Part A. Nevertheless, in respect of the questions posed in Part B, relevant to whether or not the applicant suffered from narcissistic personality disorder and/or sexual sadism disorder, the judge invited the jury to consider whether “the alcohol and drug disinhibited the defendant – lowered his ability to resist – and that in that state his NPD and/or SSD operated to substantially impair his responsibility.”

38. As noted earlier, having identified the first two of the three elements required to be proved by the defence to establish the partial defence of diminished responsibility, namely an abnormality of mind which must have arisen from either an inherent cause or have been induced by disease or injury, the judge invited the jury to consider the “first two elements” by having regard not only to the evidence of Dr Latham and Professor Perkins, but also to:^{^[29]}

“ …the evidence relating to these killings and the circumstances in which they occurred. Consider the behaviour of the defendant both before and after the killings and take into account also what the two psychiatrists called by the prosecution had to say.”

39. In the written directions in Part A in respect of the applicant’s abuse of cocaine and alcohol the judge reminded the jury that “all the experts agree” that the applicant suffered from an abnormality of mind, namely Substance Abuse Disorder (Cocaine) and Alcohol Abuse Disorder. Of the issue of whether that abnormality of mind arose from “Any inherent causes; or Disease or injury”, the judge said that “all the experts agreed” the answer was in the affirmative. He added orally, “…they call it ‘disease’.” ^{^[30]} That direction accurately reflected the evidence. However, in the written directions in Part B he gave no such direction. That reflected the controversy in the expert evidence. The judge directed the jury:^{^[31]}

“ …Dr Latham had said, that anyone who assessed the defendant would say that he is either narcissistic, or very close to the line, and putting it that way, of course, obviously, Dr Chan and Dr Chow put him below the line, it was not a disorder but traits. Dr Latham, on the other hand, put him above the line, along with the psychologist, Professor Perkins. That is on personality disorder.

Sexual sadism disorder, Dr Latham and Professor Perkins both made that diagnosis and Dr Chow agreed with it. Dr Chan, whilst he agreed that there were traits there, did not agree …

This disorder, if it was one, taken together with cocaine and alcohol use disorders, can all be, we were told, classified now as diseases, even though it does not fit comfortably with the medical terms that they are used to using. You can, for the purposes of this case, if they were disorders, regard them as diseases. That is something I can tell you.”

40. In his evidence, Dr Latham’s attention had been drawn to the fact that “…the defence of diminished responsibility requires the abnormality of mind, any abnormality of mind, which is the basis for the defence to be shown to arise from one of the three… causative factors.” ^{^[32]} He agreed that the factor of arrested or retarded development was irrelevant. Of the other two factors, he said:^{^[33]}

“ …this can be difficult, because those categories don’t make much sense in medical terms, but… if I take the alcohol use disorder and the cocaine use disorder together, those two disorders, I would say, are caused by a disease and in legal terms because they are more than just someone using drugs or using drink, they are part of a recognised condition that involves changes in the brain, involve specific psychological and behavioural changes and physical consequences. So I would say that they both fit within that category. In a similar way I would say that personality disorder, and I would probably say it’s both inherent and caused by disease, we understand something about personality disorder in terms of the cause we know that it is in part likely to be caused by genetics and in part caused by influence of your environment, so things that happened to you during your development, but again it is clearly defined and I would say, and I know there’s dispute about the diagnosis, but if there is agreement on personality disorder, that is a disease in its own right.”

41. Of sexual sadism, Dr Latham said:^{^[34]}

“ (it) is probably the one where I am the least certain about how it might be considered. I’m not aware of any case specifically considering it, but it is a recognised disorder in the DSM 5, as we’ve described, there is consideration of it in medical and psychological literature, and so I would say that it still fits within the category of disease…”

42. Finally, Dr Latham testified:^{^[35]}

“ the word that is used in all these diagnoses is “disorder” rather than “disease”…the legal definition doesn’t include “disorder”, but I would say that disorders are equivalent to diseases in this context.”

43. In his testimony, Dr Oliver Chan testified that he did not diagnose the applicant as suffering from sexual sadism disorder.^{^[36]} He set out the basis for reaching that conclusion in each of his two reports.^{^[37]} In his second report, Dr Chan said:^{^[38]}

“ I have commented in my previous report that Jutting has sexual sadism, but whether it amounts to sexual sadism disorder could not be reliably concluded. To reiterate, Jutting conceded that he had a (sic) long‑standing sexual fantasies involving themes of bondage and discipline, dominance and submission, and sadism and masochism (BDSM). He has never declared having any distress, exemplified by anxiety, obsessions, guilt or shame, about these interests though, and he used to practise it only with consensual partners (ex‑girlfriends or sex workers) before he met the first victim. In addition, his life history and psychiatric or legal records do not provide convincing evidence to show that he had any occupational, functional or social impairment arising from his sadistic sexual interest prior to the killings.”

44. Dr Chan went on to explain:

“ It must be noted that DSM‑5 has endeavoured to separate sexual sadism (a paraphilia) from sexual sadism disorder (a paraphilia disorder) so as to distinguish between unusual sexual interests and mental disorders involving these behaviours. The sexual sadism per se would therefore not constitute ‘an abnormality of mind’ in my opinion.”

45. Dr Chan testified that he did not diagnose the applicant as suffering from narcissistic personality disorder.^{^[39]} He set out the basis for reaching that conclusion in each of his two reports.^{^[40]} In his second report, Dr Chan said:^{^[41]}

“ Jutting exhibits traits suggestive of an underlying narcissistic personality. As already depicted in my last report, personality traits are enduring patterns of perceiving, relating to, and thinking about the environment and oneself. Personality disorder, in contrast can only be diagnosed when such personality traits are inflexible and maladaptive, and cause significant functional impairment or subjective distress. The boundary between normal and pathological narcissism will vary, according to the person’s experiences of life circumstances and interpersonal relationships. There was no compelling evidence from the psychiatric interview to suggest that Jutting’s personality traits have caused any severe impairment in his occupational, social, or other important areas of functioning. He would, in my view, not have met the general criteria for a personality disorder. The presence of such traits would similarly not be regarded as an ‘abnormality of mind’.” [Italics added.]

46. It was not suggested in cross-examination of Dr Chan by Mr Owen that the presence of narcissistic personality traits only could be regarded as an abnormality of mind. Rather, it was the thrust of cross‑examination that Dr Chan was wrong to conclude that there was no significant functional distress or impairment caused to the applicant by the narcissistic personality traits.^{^[42]}

47. Mr Owen’s closing speech for the applicant was entirely consistent with the approach taken in cross‑examination. In proof of the applicant’s abnormality of mind, reliance was placed on the diagnoses of the several disorders:^{^[43]}

“ In addition to the abnormality of mind stemming from his drug and alcohol disorders, Dr Latham, Prof Perkins and Dr Chow all agree that he suffered from sexual sadism disorder.”

48. Of the issue of the applicant’s narcissism, Mr Owen said to the jury:^{^[44]}

“ Finally, in terms of all the diagnoses of the three experts, they agree absolutely that Mr Jutting had the narcissistic traits which fell outside the normal range. In the opinion of Dr Latham and Prof Perkins, those traits, together with the evidence of how they affected his ability to deal with life, the whole way he reacted to disappointment, to frustration, to slights, apparent failures,... justified a diagnosis of personality disorder, narcissistic personality disorder.”

49. Mr Owen did not suggest to the jury that the undisputed evidence that the applicant had narcissistic traits only (Dr Oliver Chan and Dr Kavin Chow), and not a narcissistic personality disorder, or that the applicant had sexual sadism traits only (Dr Oliver Chan), and not sexual sadism disorder, was a sufficient basis to be satisfied that he had an abnormality of the mind. Rather, he suggested to the jury:^{^[45]}

“ …you may think that the overwhelming weight of the evidence is to support Dr Latham’s conclusion… he sets out those four diagnoses that he makes, the four mental disorders which he finds Mr Jutting was suffering from.

You may think that that’s the basis on which you have to decide the question of substantial impairment, the crucial issue, the only issue that is in dispute in this case.”

50. The approach taken by Mr Owen in his closing speech, in which he invited the jury to note that there was unanimity as to the diagnosis of disorders in respect of alcohol abuse and drug abuse and in which he invited them to accept the diagnoses of sexual sadism disorder and narcissistic personality disorder, was entirely consistent with the evidence and the questions posed in Part B of the written directions.

Conclusion

51. With respect, we are satisfied that the judge’s directions correctly applied the law to the evidence adduced at trial. To be satisfied that the applicant suffered from an abnormality of mind arising from disease or inherent causes in relation to sexual sadism and/or narcissistic personality the jury was required to be satisfied that the applicant suffered from sexual sadism disorder and/or narcissistic personality disorder. The evidence that the applicant had traits only of sexual sadism and narcissistic personality, rather than disorders, was an insufficient basis to be so satisfied.

The opinion of the prosecution experts: no substantial impairment of the applicant’s mental responsibility for his acts

52. There is no dispute that at a pre-trial review on 20 October 2016, shortly before the commencement of the trial, the judge observed that the reports of Dr Chow and Dr Chan, dated 17 and 18 October 2016 respectively, did not address directly the issue of the applicant’s diminished responsibility. Subsequently, Dr Chow and Dr Chan filed further reports with the court dated 28 and 22 October 2016 respectively. Dr Chow concluded “despite the presence of abnormality of mind, such abnormality has not substantially impaired his mental responsibility for his acts.”^{^[46]} Dr Chan concluded of the applicant “In spite of the presence of substance use disorders, they have not, in my opinion, substantially impaired his mental responsibility for his acts.” ^{^[47]}

53. In reaching that conclusion, Dr Chow said:^{^[48]}

“ …Mr Jutting suffered from Substance Use Disorder (Cocaine and Alcohol) and Sexual Sadism Disorder, which were recognized medical conditions… It was the disinhibiting effect of cocaine and alcohol that led him into the state of abnormality of mind, which impaired his self‑control over the sexual fantasies and the killing of the two victims.”

54. Dr Chow went on to say:^{^[49]}

“ However, from the clinical interviews and collateral information obtained, Mr Jutting has shown his capacity to understand the nature of his behaviour, and tell the possible consequences of the acts despite under the use of the substances. He also demonstrated his ability for goal-directed behaviour after his first killing. Besides, despite his craving for the substances, Mr Jutting should be able to make the judgment to resist a continuation of substances used with his awareness of the possible harmful effects from the substances made him, especially when he was the sober states (sic). Therefore, in my opinion, despite the presence of abnormality of mind, such abnormality has not substantially impaired his mental responsibility for his acts.”

55. For his part, in reaching his opinion that the disorders “have not, in my opinion, substantially impaired his mental responsibility of his acts”, Dr Chan said:^{^[50]}

“ Jutting has described periods, albeit short, that he was sober notwithstanding his repeated and heavy consumption of cocaine and alcohol throughout the week when the two killings occurred. For example, he recalled that he was ‘terrified about what he was doing… tried to devise ways to let Alice go’… and that he has carried out goal‑directed tasks such as heading to the sex toy shop and purchasing a disposable phone... There could be craving of the substances with a difficulty in resisting to take these, but he should be capable of exercising his judgement, especially in the more sober states, despite the effects of euphoria and excitability that were attributable to the substances.”

56. The reports of Dr Latham and Professor Perkins, dated 21 and 20 July 2016 respectively did not express any opinions as to whether or not the four disorders suffered by the applicant which they diagnosed substantially impaired his mental responsibility for his acts. However, in evidence‑in‑chief, Dr Latham testified of the applicant:^{^[51]}

“ …at the moment of the killings the mental disorders that I’ve diagnosed combined to impair, and I think substantially, his ability to control his behavior.”

Dr Latham went on to say:^{^[52]}

“ this impact on his self-control arguably, if it wasn’t for this reduction in self‑control, the offence wouldn’t have happened. It’s that significant. It’s so material to understanding the killings themselves…that’s why it’s so substantial.”

57. Subsequently, in addressing the issue of whether or not the applicant’s mental responsibility for his acts was substantially impaired, Dr Latham noted:^{^[53]}

“…controlling yourself is part of psychiatry and therefore part of something that I would say I’m entitled to give an opinion on. But mental responsibility… and I know these two things are very close in these circumstances, but giving a direct opinion on whether he was responsible or not is not, in my opinion, a psychiatric issue.”

58. Although objection has been taken in this Court by Mr McCoy to the fact that the judge allowed the prosecution witnesses to give evidence on the ultimate issue of whether or not the applicant’s mental responsibility for his acts was substantially impaired, the opposite position was taken by the defence in written submissions made to the judge at trial on the admissibility of evidence from an expert witness in respect of the ultimate issue. Although the context of those submissions concerned the admissibility of the evidence of Professor Perkins, a psychologist, clearly the same principle of law is applicable to the evidence of psychiatrists. In written submissions to the judge dated 24 October 2016, it was contended that:^{^[54]}

“ It is now accepted both psychiatrists and psychiatrists (psychologists?) are permitted to give evidence on the ultimate issue of substantial responsibility. As the learned authors of Expert Evidence: Law & Practice (4^th Ed.) note:

‘It was once the case of English law did not permit expert psychiatrists or psychologists to testify on the ultimate issue, e.g. whether the defendant was insane or suffered from diminished responsibility. This rule meant that it was often difficult for a jury to fully understand the expert opinion. Consequently, the rule was eroded at the margins, widely ignored in practice and, in 1993 was eventually abolished.’

This is confirmed in R v Stockwell (1993) 97 Cr App R 260, 265‑266.”

59. There then followed a lengthy quotation from the judgment of the Court of Appeal of England and Wales in R v Stockwell delivered by Lord Taylor, CJ, including citations from Cross on Evidence and Tristram and Hodgkinson on Expert Evidence Law & Practice, supporting the conclusion:

“ The rationale behind the supposed prohibition is that the expert should not usurp the functions of the jury. But since counsel can bring the witness so close to opining on the ultimate issue that the inference as to his view is obvious, the rule can only be, as the authors of the last work referred to say, a matter of form rather than substance.

In our view an expert is called to give his opinion and he should be allowed to do so. It is, however, important that the judge should make clear to the jury that they are not bound by the expert’s opinion, and that the issue is for them to decide.” [Underlining added in the applicant’s written submissions.]

60. The issue of the admissibility of the opinion of an expert of whether or not an abnormality of the mind arising from one of the factors identified in section 3 “substantially impaired his mental responsibility for his acts” was addressed in the judgment of this Court in HKSAR v Lo Chun Siu ^{^[55]}. In that case, there was no dispute that the applicant suffered from attention deficit hyperactive disorder (“ADHD”) which was an abnormality of the mind which arises from a defect of the mind. At issue, was whether or not the applicant was affected by ADHD at the time that he killed his mother, and that it substantially impaired his mental responsibility for his acts of killing.^{^[56]}

61. In the defence case, three psychiatrists testified in support of the applicant’s defence of diminished responsibility. At the judge’s direction, the written report of Dr Cheung Hung Kin, one of the psychiatrists, was edited to remove matters which were “…either the judge’s province on which to direct the jury or the jury’s province on which to make findings.” ^{^[57]}

62. McWalters J, as McWalters JA was then, said that a ground of appeal that emerged in consequence concerned three issues, one of which was whether a psychiatrist could be asked directly “…whether in his opinion the ADHD substantially impaired the applicant’s mental responsibility for his acts or omissions in doing the killing.”^{^[58]} McWalters J said that the “legal position as to when an expert can testify on the ultimate question” had been accurately summarised by Stock JA in the judgment of this Court in HKSAR v Mo Sze Lung Thomson & Another, namely that it:^{^[59]}

“ …depends on the facts of the case; upon the expertise, whether their expertise is relevant to the ultimate question; whether the expert opinion on the ‘ultimate question’ is a conclusion which depends upon his expertise or is proffered in some other capacity; and whether the court requires the assistance of an expert upon the ultimate question.”

63. Having observed that there was “a paucity of case law on this subject”, McWalters J cited a passage ^{^[60]} from the ruling of Hunt CJ at Common Law of New South Wales, sitting as a single judge without a jury in a trial for murder in which the issue of diminished responsibility arose, in R v Trotter. ^{^[61]} That ruling had been cited with approval by Spigelman CJ in the Court of Criminal Appeal of New South Wales in R v Hoss Majdalawi.^{^[62]} In an earlier passage in his judgment,Hunt CJ said: ^{^[63]}

“ Although the word “responsibility” in the phrase “mental responsibility” appears to be a non-medical value judgment, an expert medical witness would in my view be able to give evidence that, for example, the accused’s perception of events or his capacity to exercise willpower to control his physical actions was impaired. But the tribunal of fact is not bound to accept the medical evidence where there is other material before it which, in its judgment, conflicts with it and outweighs it.”

64. Having adverted to the judgment of the Court of Criminal Appeal of England and Wales in R v Byrne ^{^[64]}, Hunt CJ said that the “crucial” question in the defence of diminished responsibility is whether the impairment of the accused’s mental responsibility for his act was substantial. Of that, he said:^{^[65]}

“ It was held in Byrne (at 404) that medical evidence is relevant to this question as well, but not decisive of it. The Court of Criminal Appeal pointed out (at 403‑404) that the question involved matters of degree, and that is one which is essentially for the jury. And, as the question is not merely a medical one of whether there was an impairment but also whether the impairment can “properly” be called substantial, it was pointed out (at 404) that this is a matter upon which juries may quite legitimately differ from the medical experts.”

65. Hunt CJ concluded:^{^[66]}

“ Those criteria demonstrate why expert medical evidence is not really of great assistance in determining this crucial question of whether the impairment is substantial. The doctors are obviously qualified to say whether the extent of the particular impairment to the accused’s perceptions, judgment and self‑control is slight, moderate or extensive, or somewhere in between, but whether that impairment to the accused’s mental responsibility for his actions may “properly” be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach that tasking abroad common sense way; Byrne (at 404); Walton (at 793). It involves a value judgment by the jury representing the community (or by a judge when there is no jury), not a finding of medical fact.”

66. For his part, McWalters J concluded:^{^[67]}

“ Thus, the issue here is not so much one of allowing the experts to express opinions on matters that are considered an ultimate issue for the jury to decide, but rather one of not allowing experts to express an opinion that is outwith their expertise.

It is our view, therefore, that the third element of the defence of diminished responsibility is not a purely medical question but a question to which medical evidence may be relevant. Thus, it will be answered by drawing upon the expert medical opinions but they are only one of the sources of evidence upon which the jury will draw in making their determination. The importance of medical opinion may vary according to the abnormality of mind under consideration. Here, it is the ability to exercise self‑control. Where the abnormality of mind completely deprives a person of that ability then medical opinion evidence will no doubt be the dominant form of evidence on which reliance is made in answering the question of whether the accused’s mental responsibility for his acts was substantially impaired.”

67. Having noted that in the instant case the abnormality of mind “merely makes it more difficult for the applicant to exercise control over his actions”, the court concluded that the judge was not wrong “…to prevent the psychiatrists from expressing opinions on the substantial impairment element of the defence and from directing the jury to ignore such opinions where they had been expressed.” ^{^[68]}

68. In the advice of the Privy Council in Walton v The Queen ^{^[69]}, an appeal from the dismissal by the Court of Appeal of the Barbados of the appellant’s appeal against his conviction for murder, Lord Keith noted that, in support of the defence of diminished responsibility, evidence had been led on behalf of the defendant from a psychiatrist who testified:^{^[70]}

“ I would refer to his condition as abnormality of mind. In my opinion this would substantially impair his responsibility for his acts.”

In that case, no medical evidence was led for the Crown.

69. Nevertheless, having referred to the judgments of the Court of Criminal Appeal of England and Wales in R v Matheson ^{^[71]} and R v Bailey,^{^[72]} in advising that the appeal should be dismissed, Lord Keith said:^{^[73]}

“ These cases make clear that upon an issue of diminished responsibility the jury are entitled and indeed bound to consider not only the medical evidence but the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the defendant before, at the time of and after it and any history of mental abnormality. It being recognised to the jury on occasion may properly refuse to accept medical evidence, it follows that they must be entitled to consider the quality and weight of that evidence. As was pointed out by Lord Parker CJ in Reg. v Byrne [1960] 2 Q.B. 396, 404, what the jury are essentially seeking to ascertain is whether at the time of the killing the defendant was suffering from a state of mind bordering on but not amounting to insanity. That task is to be approached in a broad common sense way.”

70. Earlier, Lord Keith had noted that in R v Matheson and in R v Bailey, in each of which cases a verdict of murder had been quashed on appeal and a verdict of manslaughter substituted, the undisputed medical evidence was not only that each of the respective appellants suffered from an abnormality of the mind but also that it substantially impaired his mental responsibility. Of the evidence led in R v Matheson, he said:^{^[74]} “Three medical witnesses testified at trial that they were satisfied that the accused’s mind was so abnormal as substantially to impair his mental responsibility, giving their reasons for that view, and no medical evidence was led in rebuttal.” Similarly, he noted that in R v Bailey the three medical witnesses “All expressed the opinion that the appellant suffered from epilepsy, which substantially impaired his mental responsibility.”

71. In R v Ramchurn, an unamended 1957 Homicide Act case, the Court of Appeal of England and Wales dismissed an appeal against a conviction for murder, where the partial defence of diminished responsibility had been an issue at trial. In the judgment of the court Lord Judge CJ said of the medical evidence called at trial:^{^[75]}

“ The appellant called medical evidence at trial that at the time of the killing he was suffering from an abnormality of mind which substantially impaired his mental responsibility. The prosecution also call medical evidence. This expert agreed that the appellant was indeed suffering from abnormality of mind at the relevant time, but he disagreed that the abnormality substantially impaired the appellant’s mental responsibility for his acts.”

72. Lord Judge CJ went on to note that the doctor called on behalf of the appellant had testified that “…the abnormality of mind induced by disease would have been a degree which substantially impaired his mental responsibility for his acts”,^{^[76]} whereas the doctor called on behalf of the prosecution had testified that, although his diagnosis was that the appellant was suffering from a depressive disorder leading up to the killing and that the diagnosis was sufficient to constitute an abnormality of mind, nevertheless “…this depressive state of mind played no part in the killing and was not of sufficient severity substantially to impair his mental responsibility for his actions.” ^{^[77]}

73. In R v Khan ^{^[78]}, another unamended 1957 Act case, the Court of Appeal of England and Wales dismissed an appeal against a conviction of murder in which, in addition to the defence of alibi, the issue of diminished responsibility had been canvassed by the defence at trial. In the judgment of the Court, Aikens LJ noted that the medical evidence called by the prosecution, that of a consultant psychiatrist, was to the effect that the “…appellant was suffering at the time of the killing from paranoid schizophrenia.” ^{^[79]} Of the evidence of Dr Harrop, a consultant forensic psychiatrist called in the defence case, Aikens LJ said that it was to the effect that “…the appellant was suffering at the time of the killing from schizophrenia or schizo‑affective disorder. She stated that he was suffering from an abnormality of the mind for purposes of section 2(1) of the 1957 Act and would meet the criteria for diminished responsibility.” ^{^[80]}

74. In concluding that there was ample evidence on which the jury could conclude that it was not satisfied, on a balance of probabilities, that the abnormality of the mind of the appellant substantially impaired his mental responsibility for the acts which the jury found he had done,^{^[81]} Aikens LJ said:^{^[82]}

“ There was uncontradicted evidence that the appellant was suffering from an abnormality of mind induced by disease. The issue for the jury on diminished responsibility was whether the appellant’s mental responsibility was substantially impaired by that abnormality of mind for his acts which led to the killing of the victim. It is clear from the decisions that we have cited above that when a jury has to consider this latter question it must weigh all the relevant evidence, medical and factual. Whilst there was clear evidence from Dr Harrop that the appellant’s abnormality of mind “would” substantially impair his mental responsibility, that is as far as she could reasonably go, because of the appellant’s case that he did not attack Nazeer Ahmed at all.”

75. It is clear from the judgments cited above that the fact that evidence was received at trial from a psychiatrist expressing an opinion as to the ultimate issue of whether or not the defendant had a substantial impairment of mental responsibility for his acts was not a matter that attracted any comment, let alone criticism, from either the Court of Appeal of England and Wales or the Privy Council. Indeed, in the judgment of Lord Hughes JSC, with whom all the other judges agreed, in the Supreme Court of the United Kingdom in R v Golds it was noted:^{^[83]}

“ Although it is for the jury, and not for the doctors, to determine whether the partial defence is made out, and this important difference of function is well recognised by responsible forensic psychiatrists, it is inevitable that they may express an opinion as to whether the impairment was or was not substantial, and if they do not do so in their reports, as commonly many do, they may be asked about it in oral evidence.” [Italics added.]

76. As noted earlier, Dr Latham was prepared to express the opinion of the applicant that at the time of the killings his ability to control his behaviour was substantially impaired.^{^[84]} Indeed, he went so far as to say “…arguably, if it wasn’t for this reduction in self‑control, the offence wouldn’t have happened.” ^{^[85]} On the other hand, he said “…the reason for not giving a final opinion on diminished responsibility is out of respect for the fact that that is the ultimate issue, that’s a decision for the jury”.^{^[86]} Nevertheless, of the ability of the applicant to control himself and his responsibility for his acts, Dr Latham went on to acknowledge “…these two things are very close in the circumstances.” In such circumstances, if the jury was to accept his evidence, “…the inference as to his view is obvious” ^{^[87]} as to the ultimate issue: namely, there was a substantial impairment of his mental responsibility for his acts. Indeed, it is to be noted that the judge summarised the effect of Dr Latham’s evidence as being:^{^[88]}

“ …at the time of the killings, Dr Latham felt that the requirements of diminished responsibility had been met.”

77. Similarly, even without their specific testimony as to the ultimate issue, the evidence of Dr Chan ^{^[89]} and Dr Chow ^{^[90]}, if accepted, the inference as to their views on the ultimate issue was obvious: namely, that the applicant’s mental responsibility for his acts of killing was not substantially impaired.

78. No doubt, it was that consideration that led Davis LJ in the judgment of the Court of Appeal of England and Wales in R v Brennan ^{^[91]}, in which the provisions in respect of diminished responsibility as amended by the 2009 Act were considered, to say:

“ Moreover where the expert is able to and does express a view on all four matters ^{^[92]} we can see no legal or other objection to such expert, if willing and prepared to do so (as here), making explicit in evidence his or her opinion on what is called the “ultimate issue”: the more so when such view will in any event probably have been implicit from his or her stated opinion on the four matters. It is difficult to see how the expression by an expert of such a view in a given case could contravene any principle of deference to the jury as the ultimate decision makers.” [Italics added.]

79. In those circumstances, even if there was technical merit in the statement of Dr Latham that an opinion as to the ultimate issue was outwith the expertise of psychiatry, that was a matter of “form rather than substance” ^{^[93]} and the articulation of an answer to the ultimate question added nothing to that which was clearly implicit.

80. As noted earlier, Lord Lane CJ went on to say in the judgment of the Court of Appeal in R v Stockwell that, if the expert witness was permitted to give evidence on the ultimate issue, it was important “…that the judge should make clear to the jury that they are not bound by the expert’s opinion, and that the issue is for them to decide.” ^{^[94]} Here, the judge told the jury repeatedly that it was a matter for them what evidence they accepted and what evidence they did not accept. He did so in terms in the written directions in respect of Manslaughter by reason of Diminished Responsibility.^{^[95]} Then, he directed the jury:^{^[96]}

“ So really, this case is concentrated on that third point on your form, the direction that I have just given you: ‘The abnormality of mind must be shown, on a balance of probabilities, to have substantially impaired the defendant’s mental responsibility for what he did when he caused these deaths.’ ”

Of that he said “…you decide and nobody else.” ^{^[97]}

81. Then, the judge said:^{^[98]}

“ If we had trial by experts, we would not need a jury. We have experts to help us with the knowledge that they have gained through their skills, but all they can do is tell you what they think. But we have trial by jury so you use what you have heard from them along with all of the other material as well to decide whether, here, there was a substantial impairment.”

82. Subsequently, the judge said of their evidence:^{^[99]}

“ You cannot agree with them all because they do not agree with each other, but you can take into account what you do think is correct and you should bear in mind, as I said to you before, you are here to decide this issue, not them. They can give you the benefit of their skill and expertise but, in the end, it is for the jury to decide what it all comes to. As I say, it is not trial by expert.

You should remember that the evidence given by the psychiatrists, three of them, and by the psychologist, relates to the question of diminished responsibility, but that is not the only evidence. You take into account in this case all of the evidence that you have heard.”

83. Finally, the judge said:^{^[100]}

“ …was the disorder shown, on a balance of probabilities, to have substantially impaired the defendant’s mental responsibility. Yes, he was impaired, I think everyone agrees, but was he substantially impaired?... to what extent the defendant could have exercised judgment and willpower, self‑control and so on, and only you can decide that on all of the evidence.”

Conclusion

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

Substantially impaired

85. As noted earlier, in his written directions, which he read to the jury ^{^[101]}, the judge gave the jury the following direction in respect of the requirement of proof, on the balance of probabilities, that the defendant’s abnormality of mind “substantially impaired” his mental responsibility for his acts of killing:^{^[102]}

“ Substantially impaired means just that. You would have to conclude that his abnormality of mind was a real cause of the defendant’s conduct. The defendant need not prove that his condition was the sole cause of it but he must show that it was more than a merely trivial one which made no real or appreciable difference to his ability to control himself.”

86. That direction replicated verbatim the direction sought by Mr Owen in the defence submissions “Defence Draft Proposed Directions to the Jury” provided to the trial judge on 2 November 2016.^{^[103]} In turn, it repeated the direction set out in Specimen Direction 50.2 of the Judicial Institute’s ‘Specimen Directions in Jury Trials’. That direction, given to the jury in writing, was approved by the Court of Appeal of England and Wales in R v Ramchurn as having “…accurately conveyed the issue to be addressed by the jury.” ^{^[104]}

87. In further oral directions that the judge gave having read the written directions to the jury, the judge said:^{^[105]}

“ Well, ‘substantial’ is a very ordinary word in the English language and you know what it means and if there is any doubt about that-obviously, if it is trivial then it is not substantial; if it is total, it would be. But it does not have to be total, it does not have to be total. It must be a substantial impairment and that is what it means, somewhere between total and trivial. You decide and nobody else.”

88. Finally, in reminding the jury of the evidence of Dr Chow in cross‑examination, the judge said:^{^[106]}

“ …when asked what ‘substantial’ meant to her, as in impairment, she said: ‘It means real or significant impairment’. She said that it has to be less than total but more than trivial. That is perfectly so, I mean, it has got to be between there somewhere; you have got to decide what ‘substantial’ means. Total is not what we are looking at, we are looking at substantial‑you decide what that means in this case‑impairment,” [Italics added.]

89. As is noted subsequently, Dr Latham also testified that his understanding of the meaning of “substantial” impairment was “a significant impairment”.

90. We have no hesitation whatsoever in rejecting the argument advanced in written submissions on behalf of the applicant that, in citing with approval this passage of the evidence of Dr Chow as to the meaning of substantial, the judge thereby caused the jury to accept her opinion that the applicant’s mental responsibility for his acts was not substantially impaired.

91. In R v Golds the Court dismissed an appeal from the appellant’s conviction for murder, in which the partial defence of diminished responsibility had been advanced at trial, in circumstances where the trial judge had declined to give the jury any direction as to the meaning of the word “substantially”.^{^[107]} The Court was there considering section 2 of the 1957 Homicide Act, as amended by section 52(1) of the Coroners and Justice Act 2009.

92. Lord Hughes JSC, in answering the question certified by the Court of Appeal, said:^{^[108]}

“ (1) Ordinarily in a murder trial where diminished responsibility is in issue the judge need not direct the jury beyond the terms of the statute and should not attempt to define the meaning of ‘substantially’. Experience has shown that the issue of its correct interpretation is unlikely to arise in many cases. The jury should normally be given to understand that the expression is an ordinary English word, that it imports a question of degree, and that whether in the case before it the impairment can be properly described as substantial is for it to resolve.

(2) If, however, the jury has been introduced to the question of whether any impairment beyond the merely trivial will suffice, or if it has been introduced to the concept of a spectrum between the greater than trivial and the total, the judge should explain that whilst the impairment must indeed pass the merely trivial before it need be considered, it is not the law that any impairment beyond the trivial will suffice. The judge should likewise make this clear if a risk arises that the jury might misunderstand the import of the expression; whether this risk arises or not is a judgment to be arrived at by the trial judge who is charged with overseeing the dynamics of the trial.”

93. The meaning of the term substantial in the phrase “substantially impaired” was canvassed in evidence‑in‑chief by Mr Owen with Dr Latham, who said:^{^[109]}

“ So I think it’s difficult because I think it’s difficult to quantify. I know, because I’ve received guidance before, that substantial has in the past meant more than trivial. So what that means, you then get, well what does trivial mean? I think I would use other words like significant and… I would also turn it round and say that this impact on his self‑control arguably, if it wasn’t for this reduction in self‑control, the offence wouldn’t have happened. It’s that significant. It’s so material to understanding the killings themselves that that’s why it’s so substantial. But I think it’s very difficult because if you—and I sometimes ask people in training to quantify substantial. Does that mean a 10 percent contribution, a 50 percent contribution? And people say very different things and I think it’s very hard to quantify. But—I don’t know if that really explains it, but I think it’s a vital ingredient. You cannot understand the killings without understanding that his self‑control was impaired.” [Italics added.]

94. Subsequently, as noted earlier, Mr Owen canvassed the meaning of the word “substantially” in cross-examination of Dr Chow:^{^[110]}

“ Q. What, Dr Chow, do you say ‘substantially’ means?

A. ‘Substantially’, from my point of view, is more than trivial, less than total impairment. That is - - must be very vital, significant, in that area.” [Italics added.]

95. Then, there ensued a line of questioning in which Mr Owen suggested to Dr Chow that on her evidence, namely that “in order for it to be substantial, it must be more than trivial but less than total” ^{^[111]}, that it followed that in forming her opinion that the applicant’s mental responsibility was not substantially impaired “…you must, therefore, on your own logic, be expressing a view that it is trivial, because if it’s more than trivial, it’s substantial.” ^{^[112]}

96. It is clear from the examination of Dr Latham and the cross‑examination of Dr Chow by Mr Owen that the jury were introduced not only “to the question of whether any impairment beyond the merely trivial will suffice” but also “to the concept of a spectrum between the greater than trivial and the total”. In those circumstances, even on the approach adopted in R v Golds, namely that ordinarily a judge directing a jury in respect of diminished responsibility “should not attempt to define the meaning of substantially”, the judge was required to “…explain that whilst impairment must indeed pass the merely trivial before it need be considered, it is not the law that any impairment beyond the trivial will suffice.” We are satisfied that the judge’s directions to the jury made that perfectly clear.

Conclusion

97. We are satisfied that there is no merit in this ground of appeal against conviction.

Verdicts on the two counts

98. In the summing up, the judge gave the jury the following direction:^{^[113]}

“ There are, in this case, as you know two counts on the indictment and each one will require a verdict from you. Whether the verdict is guilty or not guilty to murder and guilty of manslaughter in the alternative is what you are here to decide. But I would just like to give one piece of advice, if I may. I cannot tell you but I would like to advise you that perhaps in this case, both verdicts should be the same, whatever they are, murder or manslaughter.

I think it will make obvious logical common sense, really. After all, the two charges are, what, four or five days apart in time–the killings, that is, and if he was substantially impaired, say on the 1^st count, then you would say probably the same on the 2^nd. Equally, if he was not substantially impaired on the 1^st, you would properly say the same on the second murder.

But that is just a piece of advice what I think I should give because although the evidence is very different about the killings, one following three days of torture and the other being 20 minutes after he had brought the girl back, the fact of the matter is that the same defence applies to both and it is difficult to see, if he was suffering from something which substantially impaired his mental responsibility on the 1^st charge, that he was not also substantially impaired on the 2^nd. That is why I think they should be the same, whatever. That is my advice.”

99. In advance of the summing up, on 3 November 2016, the judge had canvassed with counsel the issue of inconsistent verdicts:^{^[114]}

“Did you think, either of you, any more about the inconsistent verdicts, which is really what I was hinting at yesterday? It seemed to me that if the jury found that there was diminished responsibility on Count 1 and returned a verdict of manslaughter, it would be inconsistent to return a different verdict on Count 2.”

100. Mr Reading having said that he thought that the judge’s “observations are correct” and that it would be “…very unusual if we got… different verdicts in this case”, the judge said:^{^[115]}

“ Because in no (those?) circumstances I would need to direct the jury to return the same verdict on each count.”

101. In answer to an invitation from the judge to address the court, Mr Owen said:^{^[116]}

“ Yes, my Lord. It’s one of those questions where, if they had--if they did return different verdicts, would there be an appealable issue by reason of irrationality?

It is a high threshold, but my view is that it would be advisable for the jury to be given a strong indication that -- perhaps without mandating it, but a strong indication that they may think that in the circumstances the evidence would lead them to return the same verdict on both counts, that to take a different view would be surprising. Something like that, that the logic of the evidence is that it covers both.”

102. Once again, it is clear that the direction that the judge gave to the jury was one that had been sought by the defence at trial. The judge’s direction was entirely consistent with Mr Owen’s request that the jury be given a “…strong indication that they may think that in the circumstances the evidence would lead them to return the same verdict on both counts” but that the direction be given “without mandating it”. As to the latter issue, the judge told the jury repeatedly that his suggestion was “advice” only and, in particular, that he could not tell them to deliver the same verdicts.

103. We are satisfied that having regard to the evidence at trial the judge was entitled to invite the jury to consider approaching their verdicts in that manner. Most importantly, the message given to the jury was perfectly clear, namely that it was a matter for them whether they took that view or not.

Conclusion

104. There is no merit whatsoever in this ground of appeal.

105. In the result, for the reasons that we have given, we refuse the application for leave to appeal against conviction.

(Michael Lunn)	(Andrew Macrae)	(Kevin Zervos)
Vice President	Justice of Appeal	Judge of the Court of
		First Instance

Mr John Reading, SC, Counsel on fiat and Mr Lenny Cheng, SPP(Ag), of the Department of Justice, for the respondent.

Mr Gerard McCoy, SC and Mr Timothy Parker, instructed by Vidler & Co, assigned by Director of Legal Aid, for the applicant.

[1] Appeal Bundle; page 39 E‑G.

[2] R v Golds [2016] 1 WLR 5231, at paragraphs 40‑42. (UK Supreme Court)

[3] Appeal Bundle; page 49 M‑P.

[4] R v Trotter (1993) 68 A Crim R 536; R v Hoss Majdalawi (2000) 113 A Crim R 241; and HKSAR v Lo Chun Siu (CACC 90/2013; unreported, 6th June 2014).

[5] Appeal Bundle; page 54 A‑O.

[6] Appeal Bundle; page 36 A‑G.

[7] R v Stockwell [1993] 97 Cr App R 260, at 266; R v Golds, at paragraph 38.

[8] Appeal Bundle; page 47 F‑G.

[9] Appeal Bundle; page 54 D‑E.

[10] Appeal Bundle; page 714 Q‑S.

[11] Appeal Bundle; pages 110 K ‑ 111 K.

[12] Appeal Bundle; page 45 D‑G.

[13] Appeal Bundle; pages 990‑993.

[14] Appeal Bundle; page 991.

[15] Appeal Bundle; page 48 D‑O.

[16] Appeal Bundle; pages 48 P - 49 I.

[17] Appeal Bundle; page 49 L‑P.

[18] Appeal Bundle; page 49 P‑S.

[19] Appeal Bundle; page 50 B-D.

[20] Appeal Bundle; page 50 L‑N.

[21] Appeal Bundle; pages 948-976.

[22] Appeal Bundle; pages 977-989.

[23] R v Dietschmann [2003] 1 AC 1209.

[24] R v Stewart [2009] 2 Cr App R 30.

[25] HKSAR v Chiu Wai Kan Vicken [2011] 2 HKLRD 643.

[26] Appeal Bundle; page 955, paragraph 13.

[27] Appeal Bundle; page 969.

[28] Appeal Bundle; page 992, paragraph 3.

[29] Appeal Bundle; page 991.

[30] Appeal Bundle; page 50 P.

[31] Appeal Bundle; page 90 A-L.

[32] Appeal Bundle; page 521 M-O.

[33] Appeal Bundle; page 522 B-I.

[34] Appeal Bundle; page 522 J‑L.

[35] Appeal Bundle; page 522 Q‑S.

[36] Appeal Bundle; page 670 A‑C.

[37] Appeal Bundle; pages 815‑6, paragraphs 60-61; and page 819, paragraph 4.

[38] Appeal Bundle; page 819, paragraph 4.

[39] Appeal Bundle; page 680 A-C.

[40] Appeal Bundle; page 816, paragraph 62; and pages 819-20, paragraph 5.

[41] Appeal Bundle; pages 819-20, paragraph 5.

[42] Appeal Bundle; pages 680 H - 681 D.

[43] Appeal Bundle; page 769 A-C.

[44] Appeal Bundle; page 769 K‑O.

[45] Appeal Bundle; page 769 Q‑U.

[46] Appeal Bundle; page 799, paragraph 15

[47] Appeal Bundle; page 820, paragraph 7.

[48] Appeal Bundle; page 798, paragraph 13.

[49] Appeal Bundle; pages 798-9, paragraph 15.

[50] Appeal Bundle; page 820, paragraph 7.

[51] Appeal Bundle; page 498 B‑D.

[52] Appeal Bundle; page 524 O‑Q.

[53] Appeal Bundle; page 523 Q‑S.

[54] Appeal Bundle; page 916, paragraph 43.

[55] HKSAR v Lo Chun Siu (CACC 90/2013; unreported, 6th June 2014).

[56] Ibid., at paragraph 7.

[57] Ibid., at paragraph 113.

[58] Ibid., at paragraph 118.

[59] HKSAR v Mo Sze Lung Thomson & Another [2003] 2 HKC 356, at 368.

[60] HKSAR v Lo Chun Siu,paragraph 121.

[61] R v Trotter,pages 537‑538.

[62] Hoss Majdalawi (2000) 113 A Crim R 241, at 243.

[63] R v Trotter, page 537.

[64] R v Byrne [1960] 2 QB 396.

[65] R v Trotter, page 537.

[66] Ibid., at pages 537‑8.

[67] HKSAR v Lo Chun Siu, paragraphs 123‑4.

[68] HKSAR v Lo Chun Siu, paragraph 125.

[69] Walton v The Queen [1978] AC 788.

[70] Ibid., atpage 791 D‑E.

[71] R v Matheson [1958] 1 W.L.R. 474.

[72] R v Bailey [1961] Crim. L.R. 828.

[73] Walton v The Queen, page 793 F‑H.

[74] Ibid., at page 792 F‑G.

[75] R v Ramchurn [2010] 2 Cr. App. R. 3, at paragraph 7.

[76] Ibid., at paragraph 8.

[77] Ibid., at paragraph 10.

[78] R v Khan [2009] EWCA Crim 1569 (27 July 2009).

[79] R v Khan, paragraph 4.

[80] Ibid., at paragraph 5.

[81] Ibid., at paragraph 49.

[82] Ibid., at paragraph 45.

[83] R v Golds [2016] 1 WLR 5231; at 5248 C‑D, paragraph 38.

[84] Appeal Bundle; page 498 E.

[85] Appeal Bundle; page 524 O-P.

[86] Appeal Bundle; page 499 P-Q.

[87] R v Stockwell, page 265.

[88] Appeal Bundle; page 95 K-L.

[89] Appeal Bundle; page 820, paragraph 7. Dr Chan: namely that the applicant “...should be capable of exercising his judgement, especially in the more sober states, despite the effects of euphoria and excitability that were attributed to the substances”.

[90] Appeal Bundle; page 798, paragraph 15. Dr Chow: namely that “Mr Jutting should be able to make the judgment to resist the continuation of substances use with his awareness of the possible harmful effects from the substances made him, especially when he was the sober states (sic).”

[91] R v Brennan [2015]1 WLR 2060; at 2072 D-E, paragraph 51.

[92] Ibid.,at paragraph 50: “(1) Was the defendant suffering from an abnormality of mental functioning? If so, (2) Did it arise from a recognised medical condition? If so: (3) Did it substantially impair the defendant’s ability either to understand the nature of his conduct or to form a rational judgment or to exercise self-control (or any combination)? If so: (4) did it provide an explanation for the defendant’s conduct.”

[93] R v Stockwell, page 265. See also paragraph 59 of this Judgment.

[94] Ibid., at page 266.

[95] Appeal Bundle; page 991:

“It is your decision what evidence you accept and what evidence you do not accept.”

[96] Appeal Bundle; page 49 J-M.

[97] Appeal Bundle; page 49 P.

[98] Appeal Bundle; page 49 Q-S.

[99] Appeal Bundle; page 89 A‑H.

[100] Appeal Bundle; page 92 M‑Q.

[101] Appeal Bundle; page 47 J‑N.

[102] Appeal Bundle; page 991.

[103] Appeal Bundle; pages 965-966.

[104] R v Ramchurn, at paragraphs 13 and 27.

[105] Appeal Bundle; page 49 L‑P.

[106] Appeal Bundle; page 102 B-F.

[107] R v Golds; pages 5234 F - 5235 A, paragraph 2.

[108] Ibid.; at pages 5249 G - 5250 B, paragraph 43.

[109] Appeal Bundle; page 524 M-T.

[110] Appeal Bundle; page 646 K-L.

[111] Appeal Bundle; page 646 S-T.

[112] Appeal Bundle; page 647 N-P.

[113] Appeal Bundle; page 54 A‑O.

[114] Appeal Bundle; page 714 G‑I.

[115] Appeal Bundle; page 714 M.

[116] Appeal Bundle; page 714 P‑T.

Citation

Court

Procedural posture

Issues

Holdings

Legal principles

Disposition

Key citations

Appeal history

HKSAR v. JUTTING RURIK GEORGE CATON
8 Nov 2016
On appeal from
HKSAR v. JUTTING, RURIK GEORGE CATON
CA · 9 Feb 2018 · [2018] HKCA 5
This judgment
HKSAR v. JUTTING, RURIK GEORGE CATON
CA · 11 Apr 2018 · [2018] HKCA 189
On appeal from
HKSAR v. JUTTING RURIK GEORGE CATON
CFA · 9 Aug 2018 · [2018] HKCFA 39
On appeal from