HKSAR v. Jutting, Rurik George Caton
Read the full judgment text of CACC 361/2016 on BabelCite. This Court of Appeal judgment was delivered on 9 February 2018.
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.
Cited by 3 cases · Cites 4 cases
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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) ____________
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_______________ 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]
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]
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]
However, he invited the Court to note that immediately in advance of that statement, the judge had said:
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]
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]
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]
20.In addition, in his oral directions, the judge gave context to the directions of law by reference to the relevant evidence:[15]
21.Then, the judge went on to address the second element:[16]
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]
23.Of their approach to the evidence of experts, the judge directed the jury:[18]
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]
25.The written directions were divided into Part A and Part B and posed a sequence of questions, together with accompanying notes.
26.Having read out to the jury paragraphs 1, 1.1 and 1.2, the judge said:[20]
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:
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.
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]
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]
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]
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]
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]
41.Of sexual sadism, Dr Latham said:[34]
42.Finally, Dr Latham testified:[35]
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]
44.Dr Chan went on to explain:
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]
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]
48.Of the issue of the applicant’s narcissism, Mr Owen said to the jury:[44]
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]
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]
54.Dr Chow went on to say:[49]
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]
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]
Dr Latham went on to say:[52]
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]
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]
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:
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]
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]
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]
66.For his part, McWalters J concluded:[67]
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]
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]
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]
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]
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]
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]
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:
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]
Of that he said “…you decide and nobody else.” [97]
82.Subsequently, the judge said of their evidence:[99]
83.Finally, the judge said:[100]
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]
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]
88.Finally, in reminding the jury of the evidence of Dr Chow in cross‑examination, the judge said:[106]
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]
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]
94.Subsequently, as noted earlier, Mr Owen canvassed the meaning of the word “substantially” in cross-examination of Dr Chow:[110]
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]
99.In advance of the summing up, on 3 November 2016, the judge had canvassed with counsel the issue of inconsistent verdicts:[114]
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]
101.In answer to an invitation from the judge to address the court, Mr Owen said:[116]
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.
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. |
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