HKSAR v. TSANG MAN WAI, RAYMOND

CACC 146/2016

[2019] HKCA 1028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 146 OF 2016

(ON APPEAL FROM HCCC NO 195 OF 2015)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  In order to initiate an appeal to the Court of Final Appeal, the applicant filed on 6 September 2018 a Notice of Motion, pursuant to section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap 484, for a certificate that a point of law of great and general importance is involved in this Court’s decision, which was handed down on 13 June 2017. The application was out of time by about 14 months, and the papers filed by the applicant were handwritten and numerous, including lengthy and meandering submissions in relation to the certificate and an extension of time, as well as a list of numerous cases and other references which were not supplied. This was followed by further handwritten submissions, which were filed on 15 February 2019, after the respondent had filed a response opposing the application.

2.  The applicant also filed on 13 September 2019 an application for a certificate for Appeal Aid.  Legal assistance had previously been refused by the Legal Aid Department on 21 July 2017, 12 February 2018, 10 January and 8 July 2019.  At the hearing of the applications for a certificate on a point of law and a certificate for Appeal Aid, the applicant appeared in person.

3.  We found that the application for a certificate on a point of law was not meritorious to justify an extension of time and it was therefore refused.  We also refused the application for a certificate for Appeal Aid.  These are our reasons for doing so.

4.  The point of law is in the form of two questions.  They are as follows:

Question 1: Do the relevant principles of law as applied in Hong Kong permit a court, in sentencing, to determine that the first condition in R v Hodgson (1968) Cr App R 113 has been met in respect of a conviction on a sole count of unlawful act manslaughter (a) where the jury verdict was reached on the basis of (i) a properly delivered direction from the judge which embodied the principle on self-induced intoxication for crimes of “basic intent” in the DPP v Beard [1920] AC 470 / DPP v Majewski [1977] AC 443 line of authority and (ii) a defence case accepted by the jury in the context of murder that the offender’s acts in killing were or may have been involuntary (i.e. physically uncontrolled and not deliberate) and (b) where no subjective “nexus of culpability” was found proved between the offender’s “prior fault” in becoming voluntarily intoxicated and the offender’s acts in killing?

Question 2: In respect of a conviction for unlawful act manslaughter, where the jury expressly finds that the offender had or may have had no intention to kill or to cause serious injury and, in addition, where due to a properly delivered direction from the judge which embodied the principle on self-induced intoxication for crimes of “basic intent” in the DPP v Beard [1920] AC 479 / DPP v Majewski [1977] AC 443 line of authority the jury verdict entailed no finding of subjective mens rea in relation to any element of the actus reus of the offence, do the relevant principles of law as applied in Hong Kong permit a court, in sentencing to disregard the offender’s absence of intent as a mitigating factor on the basis that to take into account an absence of intent arising from a “drug induced state” would be to “double count in the [offender’s] favour”?

5.  The first question is whether a convicted defendant of unlawful act manslaughter on the basis of self-induced intoxication can meet the first condition in Hodgson, namely whether in the present case the applicant has been convicted of a very serious offence.  It is argued that a conviction for this offence under these circumstances means that all that was required for mens rea was “basic intent” as explained in the cases of Beard and Majewski and the defendant’s acts in killing the deceased were or may have been involuntary.  This leads to the second question which is premised on the basis that a person convicted of unlawful act manslaughter in these circumstances means that there was no finding of subjective mens rea in relation to the actus reus, and therefore the absence of intent arising from a “drug induced state” was a mitigating factor which should have been taken into account.

6.  The argument advanced by the applicant is that the first condition of Hodgson cannot be met because it cannot be said that a person who is convicted of unlawful act manslaughter, absent any intent, has been convicted of a very serious offence.  If it is being suggested that a defendant who commits unlawful act manslaughter while in a state of drug intoxication can never be said to have committed a very serious offence, then such a proposition is fundamentally wrong.  It is not uncommon for the mental element of an offence to be qualified in some way, and for the offence still to be considered very serious, depending upon the circumstances in which it was committed.  The legislature has provided by section 7 of the Offences Against the Person Ordinance, Cap 212, that any person convicted of manslaughter shall be liable to life imprisonment.

7.  It was noted in this Court’s decision that the applicant had a long history of drug addiction and a past record of serious crimes of violence.  He was fully aware that his consumption of drugs could lead to acts of violence as evidenced by his past behaviour.

8.  The brief facts of the present case were that the applicant, while in a restaurant with his elder brother, suddenly produced a knife and stabbed and slashed him multiple times until he was dead.  It was accepted by the applicant through his counsel at trial that “it was a vicious, brutal and fatal attack on a defenceless man”.[1]

9.  It was the applicant’s case that he had no intention to kill or cause serious injury to his brother, and that he was provoked by what his brother said to him in the restaurant about taking drugs and buying a knife for his mother (which was the knife that he used to stab and slash his brother).  The applicant claimed that he was in a state of drug intoxication but did not raise the defence of diminished responsibility, namely that he was suffering from an abnormality of mind that substantially impaired his mental responsibility for his act of killing his brother.  The judge gave detailed directions to the jury on the offence of murder and the partial defence of provocation, as well as directions in relation to unlawful act manslaughter.  He explained to the jury in relation to the offence of murder, amongst other things, to consider whether the applicant was so affected by drugs that he may not have intended to kill or cause really serious injury to his brother.  When later addressing the jury in relation to manslaughter by unlawful act he said it was not a defence for the applicant to suggest that he only attacked his brother because he was drugged and that it was sufficient that when he attacked his brother he would have understood what he was doing had he been sober. 

10.  The jury returned a verdict of guilty to the offence of manslaughter by unlawful act and it is on this basis that the applicant now argues that the jury by its verdict had determined that he killed his brother by an involuntary act as a result of his self-induced drug intoxication.  It is complained that the sentencing of the applicant proceeded upon the erroneous basis that his acts were intentional and therefore could not have considered the offence to be very serious so as to meet the first condition of Hodgson.

11.  The judge in his reasons for sentence explained his position in relation to the first condition before he went on to address the second and third conditions of Hodgson.  He said:

“ The case of Hodgson [1967] 52 Crim App R at 113 together with the Atthorney General’s Reference No 32/1996 [1997] 1 Crim App R 261 (S) remain the leading cases. Hodgson’s case elucidated three criteria which must apply before a life sentence of imprisonment can properly be imposed for the offence of manslaughter. In that case, McKenna J, giving the judgment of the court, said:

‘When the following conditions are satisfied, a sentence of life imprisonment is, in our opinion, justified:

(1) Where the offence or offences are in themselves grave enough to require a very long sentence,

(2) where it appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and

(3) where, if the offences are committed, the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.’

The defendant’s attack on his brother was sustained and ferocious. It resulted in horrific injuries and were it not for the jury plainly accepting, by a bare majority, that the defendant’s mind may have been, in colloquial terms, a blank at that time due to his drug taking some hours before the attack, I have no doubt that every other criteria required to establish the offence of murder was satisfied. Indeed, by their verdict in unanimously convicting the defendant of manslaughter by an unlawful act, they were plainly satisfied that the defendant was in control of his actions, albeit with no formed intention as to the purpose of those actions.

In my view, this offence of manslaughter therefore falls short of murder by only a small margin. To put it another way, it is difficult to imagine with any practicality a worse case of single victim manslaughter than the present. There is no doubt that the first criteria of Hodgson’s case has been met.”[2]

12.  There was never an issue either at trial or on appeal that this was anything other than a very serious offence, nor that the first condition of Hodgson had not been met.  The point of law raised in this application was not advanced by the applicant in his grounds of appeal before this Court.  No complaint was made about the first condition in Hodgson and the whole appeal centred on the second and third conditions of Hodgson.

13.  In the written submissions of the applicant there is a purported constitutional challenge to the maximum penalty of life imprisonment for the offence of manslaughter where a Majewski direction is given.  This had not been particularised as a point of law in the two questions, nor were the relevant considerations as laid out in Lau Cheong v HKSAR (2002) 5 HKCFAR 415,[3] addressed by the applicant.  In any event, it was not an issue involved in this Court’s decision.

14.  On appeal, the applicant was represented by senior counsel, Mr Michael Blanchflower, SC, who advanced only two grounds of appeal on behalf of the applicant before this Court and they were as follows:

Ground 1:   The sentence of life imprisonment is manifestly excessive and/or wrong in principle.  In deciding to impose a discretionary life sentence, the trial Judge: (1) failed to consider, or sufficiently consider, the relevant circumstances of the commission of the offence and mitigating circumstances; (2) erred in finding that the second and third criteria of R v Hodgson, for imposing a discretionary life sentence, were satisfied.

Ground 2:   The minimum period of 15 years’ imprisonment is manifestly excessive and/or wrong in principle.  The trial Judge failed to consider all the relevant circumstances of the commission of the offence and mitigating circumstances.

15.  In the applicant’s initial submissions, it was complained that the judge sentenced the applicant to life imprisonment without the necessary evidence and on the basis of inadmissible or irrelevant evidence, and that he “erred in finding that the R v Hodgson second condition (likelihood of reoffending) and the third condition (consequences of reoffending) were satisfied.”

16.  In the applicant’s consolidated submissions submitted by Mr Blanchflower, he only took issue with the second and third conditions of Hodgson.[4]

17.  In the opening paragraph of the applicant’s consolidated submissions, it was stated that: “the crucial question is whether on all the facts it appears that an offender is likely to represent a serious danger to the public at an indeterminate time, which concern the second and third conditions.”[5]

18.  No issue was taken with the first condition and this was reiterated in the applicant’s consolidated submissions:

“2. Errors in applying R v Hodgson criteria

6. The judge applied[6] the criteria in R v Hodgson for the imposition of a discretionary life sentence: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and (3) where, if the offences are committed [in the future] the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence. It is submitted he erred in the application of the 2^nd and 3^rd criteria.” (Emphasis added)

19.  The whole focus of the appeal by the applicant was on the second and third conditions of Hodgson.  No reference was made to the elements of the offence of unlawful act manslaughter, nor to the cases of Beard and Majewski.

20.  In the respondent’s consolidated submissions, it was acknowledged that the real issue in the appeal was whether the second and third conditions had been met, and it was noted without demur by the applicant that he did not dispute that the first condition was satisfied.[7]

21.  At this hearing, the applicant confirmed that no issue had been taken on his appeal about the fact that he had committed a very serious offence.

22.  The applicant’s submissions have been artificially crafted on his behalf to argue a point that was not an issue in the appeal.  It is quite apparent that the basis of these two questions simply did not arise in the decision of the Court.  We feel that the questions as framed seek to raise general legal arguments in relation to the nature and scope of the directions in homicide cases involving a defendant in a drug induced state and how, depending on the circumstances of the case, that would impact on the sentence to be imposed upon conviction, particularly for the offence of manslaughter by an unlawful act.  These arguments were not advanced at trial or on appeal and are inapplicable in the circumstances of this case.  The application for a certificate on a point of law was accordingly refused.  On the basis that we found the application for a certificate on a point of law was not meritorious, the application for a certificate for Appeal Aid was also refused.

23.  We should add that the explanation provided by the applicant for the inordinate delay in filing the application was neither convincing nor compelling.  It was stated by the applicant that he sought legal aid to appeal the Court’s decision soon after it was handed down.  It was refused, but he took no further action after receiving an opinion from senior counsel that was negative to the prospect of reviewing the decision to refuse legal aid.  It was further stated that it was not until July 2018 that a prison inmate offered to review his case, who having done so was of the opinion that an appeal was not only reasonably possible, but also likely to succeed.  This application was then initiated.

24.  It became apparent during the course of the hearing that the prison inmate who prepared the submissions and drafted the papers was Mr Jurik George Jutting.  It meant that the applicant had not received proper or professional legal advice, and if he had received such legal advice, it may have caused him to take a different approach or advance a different argument in relation to his case.  It also meant that everyone involved in these proceedings was burdened by having to deal with an application that did not follow proper practice and procedure, as well as lengthy submissions and arguments that were meandering and lacked the professional skill and responsibility of a practising lawyer.  We emphasise however that a person has a right of appeal but it should be exercised by advancing meritorious arguments in full compliance with proper practice and procedure.

25.  It is appropriate to refer to the observations made by this Court in HKSAR v Mark Richard Charlton Sutherland HCMA 425/2014, 18 January 2019, unreported, in relation to unmeritorious applications that are made out of time which may warrant an order of costs. 

[1] Appeal Bundle, 542P – Q. 

[2] Appeal Bundle, 553K – 554G.

[3] HKSAR v Godson Ugochukwu Okoro [2019] 2 HKLRD 451.

[4] At paragraph 29.

[5] At paragraph 1(3).

[6] AB 553K – S.

[7] At paragraph 3.