THE QUEEN v. CHIU CHEUNG

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Applicant was indicted before Garcia, J. and a jury with the murder of his son (aged four years) and the attempted murder of his daughter (aged five years). He seeks leave to appeal against his convictions. The substantial ground of appeal on the murder count is that the judge failed adequately to direct the jury on the issue of diminished responsibility, and that on the attempt count he misdirected the jury as to the intent required. There was evidence that the Applicant was suffering from reactive depression as a result of problems related to his marriage, although no questions were directed to the medical witnesses to ascertain whether the condition had become chronic. It may have been that omission which led to the prima facie conflict between the witnesses on the issue whether reactive depression was "a disease of the mind."

2. The complaint as to the directions on diminished responsibility was that the judge referred only to the Applicant's "ability" to control his physical acts and not to possible "difficulty" in controlling them, and, secondly, that he mentioned insanity without making it clear that diminished responsibility and insanity were defences of an entirely different nature. Having read s.3(1) of the Homicide Ordinance the judge said:

 

        "Now in order to satisfy the requirements of law; that is that he acted under diminished responsibility, the accused must show, firstly that he was suffering from an abnormality of mind and, secondly that such abnormality of mind arose from a condition of arrested or retarded development of mind or any inherent causes or was induced by disease or injury and, thirdly, that the condition was such as substantially impaired his mental responsibility for his acts in doing the killing.

       

        Now abnormality of mind means a state of mind so different from that of normal human beings that the reasonable man would term it abnormal. In such a condition it is wide enough to cover the mind's activities in all its aspects, and not only the perception of physical acts and matters and the ability to form a rational judgment whether  an act is right or wrong but also the ability to exercise will power to control physical acts in accordance with that rational judgment.

 

        Now the expression 'mental responsibility for his acts' points to a consideration of the extent to which the accused's mind is answerable for the physical acts which must include a consideration of the extent of his ability to exercise will power to control his physical acts.

 

        Now abnormality of mind, for the purpose of diminished responsibility, is not equated to lunacy in the ordinary sense of the word and you do not have to find that the accused was at the time of the killing a raving lunatic before you come to the conclusion that he acted under diminished responsibility so as to reduce the crime of murder to that of manslaugter."

There are three later passages which we ought to read:

 

        "Now in considering these matters you have to direct your attention to all the evidence and the admitted facts in this case and, in particular, to the evidence of the three psychiatrists who gave their testimony in this court, but the matter of finding whether the accused acted under diminished responsibility, that is whether he was suffering from an abnormality of mind resulting in a substantial impairment of his mental responsibility at the time of the commission of the said acts, is entirely a matter for You and it is for you to approach these matters in a broad common-sense way."

 

        "It is for you to find whether the boy was killed in the manner stated by him in the statement to the police,or it was in the manner given by him in court, and that he committed the act in a state of extreme mental confusion. These are important factors when you come to consider whether he acted under diminished responsibility."

 

        "Now assuming that after your deliberations, you come to the conclusion that the accused.was suffering from an abnormality of the mind, whether from a disease of the mind or from inherent causes, at the time he committed these acts, there still remains the answer which you must make to the crucial question; Was the abnormality of mind such as to substantially impair his mental responsibility for the acts which he had committed, and which had given rise to the two counts in the indictment being preferred against him?

 

        Now what is substantial impairment? It is not subject to precise measurement, as in all matters relating to human conduct, there is no precise, measurement. And it is for you, members of the jury, to construe those words in a broad commonsense way. If you come to the conclusion that there was such a substantial impairment, then you will find him not guilty of murder, but guilty of manslaughter, and also not guilty of attempted murder.

 

        On the other hand, if your answer is in the negative, or that you might think that although there was some impairment, there was no substantial impairment, then you will find him guilty of the offence of murder in the first court, provided you keep uppermost in your minds that the burden of proof on the Crown is beyond reasonable doubt."

3. In our view these directions were entirely proper and sufficient. We have been referred to the leading cases on the subject, but would emphasize the need to read those judgments in the context of the evidence there given. We adopt the statement in Rose (1961) 45 Cr. App.R. 102, 106 that there is no set formula that can safely be used in every case and the statement in Spriggs (1958) 42 Cr. App. R. 69, 71 that "it is not for judges to redefine or attempt to define the definition" which the statute has laid down. That is not to say that it is necessarily enough merely to read s.3(1) to the jury: the duty of a judge is to assist the jury to apply that provision to the facts of the case before them. In our view it would not have assisted the jury here to burden it with the suggested distinction between "ability to 'control" and "difficulty' in controlling" the Applicant's acts. This was merely a matter of degree, and the judge made it abundantly clear that there had to be "substantial" impairment of mental responsibility. It was for the jury, and the jury alone, to decide whether the impairment was "substantial".

4. It is in relation to the degree of impairment that judges have felt themselves driven to distinguish diminished responsibility from insanity. It is obviously not wrong to make this distinction; but there is danger in suggesting, as is sometimes done, that diminished responsibility is "on the borderline of insanity", for that phrase is not in the statute and may not be understood by everyone in the same sense. That was a pitfall which Garcia, J. avoided. One may question whether it was felicitous to say that the Applicant did not have to be "a raving lunatic", but we do not think the jury would have been misled by this, and the judge repeatedly instructed the jury to apply the words of the statute "in a broad common sense way", a phrase drawn directly from the opinion of the Judicial Committee in Walton v Rep. 1978 A.C. 788, 793G. His purpose was to indicate that diminished responsibility was something less than, insanity, and beyond that it was not necessary to distinguish between them.

5. Mr. Macrae, who represented the Applicant in this court but not in the court below, advanced his argument on this ground with great skill and persuasiveness, but we are satisfied that the judge discharged his difficult task without error.

6. It is conceded that in relation to count 2, the judge did fall into error. More than once he used words to the effect that the intent required for a conviction for attempted murder was one "to kill or at least to cause really serious bodily harm". As was pointed out in Whybrow (1951) 35 Cr.App. R. 141, 147, it may appear illogical that "malice aforethought" should include an intention to do grievous bodily harm whilst nothing short of an intention to kill is sufficient for the crime of attempted murder. That is the law. However, Mr. Macras has conceded that, as in Whybrow, the evidence in the case was such that, even if the jury had been correctly directed on intent, it would inevitably have convicted the Applicant of attempted murder. Accordingly counsel agreed that we ought to apply the proviso. We think that is right.

7. The application is dismissed in respect of both counts.

16th September 1986