HKSAR v. Lau Cheung Fai

HCCC 367/2015

[2018] HKCFI 602

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 367 OF 2015

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R U L I N G

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1.At the end of the prosecution case on 3 January 2018, Mr Michael Arthur, counsel for the defendant, mentioned that an application may be made that the defendant is unfit to be tried. This was confirmed later on in the day when the two defence psychiatrists interviewed the defendant during the luncheon adjournment. The government psychiatrist had yet to interview the defendant in relation to this matter.

2.Mr Arthur sets out in a written submission filed today a brief chronology of events that brought about this application.  The application is made pursuant to section 75 of the Criminal Procedure Ordinance, Cap 221, and obviously at a time after the defendant had entered a plea of not guilty and when the prosecution was close to the end of its case. 

3.The two defence psychiatrists in their respective previous reports opined that the defendant was mentally fit to plead.  The government psychiatrist was also of the same opinion.

4.Given that the only outstanding matter in the presentation of the prosecution case was the filing of corrected admitted facts, it was appropriate in the circumstances that that be done and that the prosecution be allowed to close its case today before proceeding with the present application.  Mr Arthur raised no objection to dealing with the matter this way. 

5.The requirements and the procedures in dealing with a section 75 application are set out in the relevant statutory provisions which have been elaborated upon by relevant authority.  See R v M [2003] EWCA Crim 3452; R v Norman [2009] 1 Cr App R 192; R v Walls [2011] 2 Cr App R 61(6); HKSAR v Ng Mei Lan (2009) 3 HKLRD 193; HKSAR v Cheung Kam-yau,HCCC 413/2016, 22 March 2017, unreported; and HKSAR v Chow Lee-hung [2017] 3 HKLRD 357.  See also Criminal Procedure Trial on Indictment, Volume 1, Andrew Bruce SC, Chapter VI [254]-[302]; and Blackstone’s Criminal Practice, 2017, Section D12.2 to D12.16. 

6.The issue at this stage for my determination is whether the jury presently trying the case or a separate jury should decide the issue of whether the defendant is under a disability and therefore not fit to be tried.

7.Section 75(4)(b)(i) provides:

“(4) The question of fitness to be tried shall be determined by a jury, and –

…

(b) where it falls to be determined at any later time, it shall be determined by-

(i) where paragraph (a) of the definition of “court” is applicable, a separate jury or the jury by whom the accused person is being tried, as the court may direct;

…”

8.The reference to the definition of “court” under paragraph (a) means the Court of First Instance acting in the exercise of its criminal jurisdiction.  The Court therefore has a discretion as to whether the issue will be determined either by the jury then empanelled or a new jury. Like all discretions, it must be exercised judicially and in accordance with any relevant legal principles. 

9.Mr Arthur in his written submission submits that a new jury that has not heard the facts of the case should be empanelled to decide the issue.  He contends that this would ensure that nothing should arise before the jury which might prejudice the defendant on the main issue.  He submits that if a new jury decided that the defendant was fit to be tried, then the case could be returned to the present jury to decide the rest of the case which as he explains would mean hearing the defence evidence on diminished responsibility. 

10.Mr Martyn Richmond, counsel for the prosecution, is in general agreement with Mr Arthur.  He submits that the Court should direct a separate jury being empanelled under section 75(4)(b)(i) and that the current trial jury be sent away until the special issue has been determined. He further submits that if the determination is that the defendant is fit to be tried, then the trial on the general issue could continue with the current trial jury. 

11.The Court is given a discretion under section 75(4)(b)(i) to have the issue of whether the defendant is fit to be tried determined by the empanelled jury or a separate jury.  However, it is worthwhile noting that under section 75(4)(a) where the question of fitness falls to be determined on the arraignment of the defendant, if the jury determines that the defendant is fit to be tried, then under (i) another jury is required to try the case against the defendant.  This was highlighted by the Court of Appeal in HKSAR v Ng Mei Lan, where Saw J, giving the judgment of the Court, explained the rationale of section 75(4)(a) as follows: 

“19. There may be very good reasons for this and the most obvious is that in all probability the jury will have already heard evidence from experts and possibly the defendant. They will have heard of necessity some evidence as to the nature and circumstances of the alleged offence. They may have made findings adverse to the defendant, which may include findings which reflect upon credibility. In those circumstances, were they then to proceed to determine the defendant’s guilt or innocence, then they would have to do so having already heard evidence which may have been inadmissible. If the issue arises after the arraignment, the situation is different. Up to that point the trial will have proceeded in the normal way. Evidence more prejudicial than probative will have been excluded. Evidence irrelevant to the matters in issue will not have been placed before the jury.”

12.It follows that the underlying considerations for section 75(4)(a) would in appropriate circumstances apply to section 75(4)(b).  It will depend upon the particular facts and circumstances of the case as to how the court would exercise its discretion under section 75(4)(b), for there may be justification for the issue to be determined by the trial jury without the need for a separate jury. 

13.As I have already mentioned, the two defence psychiatrists have submitted further reports in which they submit that the defendant is unfit to be tried.  The government psychiatrist has now submitted his further report in which he submits the defendant is fit to be tried.  The three psychiatrists in their previous reports provided medical opinions addressing the issue of diminished responsibility.  They were divided on this issue on similar lines as they are now, and if it is determined that the defendant is fit to be tried, the trial jury will be required to consider the differences in the medical opinions when addressing the ingredients of diminished responsibility.  On what I have been provided, the section 75 application will require the jury to consider the different medical opinions between the defence doctors and the prosecution doctor which will arise again if the case proceeds to trial when dealing with the issue of diminished responsibility. 

14.It has now been urged upon me by Mr Arthur, to which Mr Richmond is in agreement, that the question of fitness to be tried be dealt with by the empanelled jury and that if they decide that the defendant is fit to be tried, then the trial should proceed before a new jury.  If the empanelled jury decide that he is unfit to be tried, then they can deal with the determination whether he did the acts as charged which appear not to be in dispute.

15.On the basis of the position now taken by the parties and for the reasons mentioned above, the issue to be determined pursuant to section 75 will be dealt with by the empanelled jury.  They will accordingly be required to take an oath or affirmation to determine whether the defendant is fit to be tried and the charge to them will be that upon hearing the evidence, including the evidence that they have heard so far, whether the defendant is under a disability so that he is not fit to be tried or not under a disability so that he is fit to be tried.  Section 75(4)(b) gives the court the discretion to have the issue determined by the empanelled jury.  But in my view, the consequences of doing so will mean in the circumstances of this case, if the jury decides the defendant is fit to be tried, then the trial on the general issue will be before a new jury empanelled for that purpose. 

Mr Martyn Richmond and Mr Kelvin Man, counsel on fiat, for HKSAR

Mr Michael Arthur and Mr David Cheng, instructed by Ip, Kwan & Co., assigned by Director of Legal Aid, for the defendant