HKSAR v. Siu Wai Cheong

CACC 347/2019

[2021] HKCA 804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 347 OF 2019

(ON APPEAL FROM HCCC NO 417 OF 2017)

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

Date of Hearing: 25 May 2021

Date of Judgment: 2 June 2021

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J U D G M E N T

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

1.On 21 November 2019, following a trial before D’Almada Remedios J and a jury, the applicant was unanimously convicted of one count of the murder of his wife, Madam Wong Suk-chun, and duly sentenced to life imprisonment. He now seeks leave to appeal against his conviction.

Background

2.At about 11:30 pm on 30 December 2016, the applicant presented himself at the report room of Castle Peak police station.  Having stated his address, he told the officer on duty, “I have beaten my wife unconscious at home.  I am willing to be jailed for 20 years”[1].  He was immediately cautioned and repeated in slightly different terms, “I killed my wife. I am willing to be jailed for 20 years”[2]. Police officers immediately went to the applicant’s home and, having broken down the door to both the flat and the bedroom, found the applicant’s wife lying on a bed, covered in blood and with a large wound to her neck.  She was immediately conveyed to hospital, but was certified dead at 12:32 am on 31 December^[3].

The prosecution case

3.There was no issue that the applicant had killed his wife (“the deceased”).  Nor was the truth and reliability of the prosecution evidence in any substantial dispute^[4]. The prosecution case, however, was that the applicant had lost his temper and killed the deceased.  It was contended that his mind was clear during the attack; and that he had intended to stab the deceased to death^[5].

4.Dr Kwok Ka-ki, the pathologist, testified that the deceased had died from multiple stab wounds and manual strangulation.  In particular, there were 15 stab wounds and 13 cut wounds to her head area.  The blade used by the applicant was 9 centimetres in length; in respect of one of the stab wounds, 60% of the blade had penetrated the deceased’s neck^[6].  Furthermore, the applicant’s subsequent acts of having a shower, changing his clothes and discarding the murder weapon and a bloodied towel into a rubbish bin, which had been captured on closed circuit television^[7], were said to indicate that the applicant had been “thinking clearly” at the time^[8]. When subsequently asked during a video recorded interview (“VRI”) at Tuen Mun police station how long the whole incident had lasted, the applicant estimated, “Perhaps it took tens of minutes, it took almost half an hour”^[9].

5.The applicant’s two children both gave evidence, describing how their parents’ relationship had turned sour over the course of some ten years.  The couple’s son explained that during that period, the deceased had accused the applicant of having extramarital affairs^[10]. The daughter of the family was also aware of the deceased’s accusations.  The son said the deceased’s suspicions had been brought about because the applicant rarely returned home, while his financial contribution to the family had decreased. He said that since about 2012 or 2013, the deceased and the applicant had been sleeping apart in separate rooms.  They argued about divorce, but otherwise rarely spoke to each other.  They did not take meals together, save for occasional family reunion dinners^[11]. When the applicant asked the deceased to cook a meal for him, she would routinely respond by telling him to get his mistress to do it^[12].

6.As to events on the day of the offence, the applicant’s son said that after dinner he heard the deceased talking on her telephone to her two sisters by speakerphone in her bedroom.  He did not hear her make any mention of the applicant.  At the time, the applicant was in the other bedroom with the door closed.  He thought his parents were behaving “normally” that night^[13]. The applicant’s son left for work at about 9 pm and was not, therefore, at home when the offence took place.

7.Both the applicant’s son and daughter confirmed there was no concrete evidence that the applicant did in fact have a girlfriend: they each simply suspected that he did^[14].  The son said he had never seen his father being violent towards the deceased, nor did he know of any complaint by her that he had been violent^[15].

8.PC18007 was the officer on duty when the applicant appeared at the report room of Castle Peak police station.  He described how the applicant had entered the police station at 11:30 pm, sat down in front of him, gave his address, and confessed to killing his wife.  He testified that when he was making a record, the applicant would sometimes shout out and slam his fist on the table, so that he was unable to read the record to the applicant^[16]. The officer said he saw blood oozing from the applicant’s wrist; nevertheless, the applicant refused to see a doctor.

9.Dr Khattak Mohammad Salid Khan was the locum doctor who, on 28 December 2016, treated the applicant at a clinic in Tuen Mun.  He diagnosed the applicant as having an upper respiratory tract infection and diarrhoea; and accordingly prescribed various medicines and an antibiotic.

10.On 30 December 2016, the applicant came back to see Dr Khattak.  He was again diagnosed with upper respiratory tract infection and abdominal pain.  Dr Khattak prescribed the same antibiotic as on 28 December, as well as more powerful medicine to deal with his stomach ailment.

11.The applicant maintained that he had taken the medication in conjunction with a quantity of alcohol and claimed, by reference to the bottle of red wine infused with onions exhibited before the jury (Exhibit P30), that he had drunk half of the bottle.  However, this claim was disputed by the prosecution, by reference to photographs taken of the bottle inside the premises on the night in question[17].  In his VRI, the applicant said that “after taking a few mouthfuls, I was possessed”[18].

The defence case

12.The applicant testified in his own defence and effectively advanced a number of disparate defences: lack of intent, accident, intoxication and manslaughter by a dangerous and unlawful act.  However, the primary case relied on was the partial defence of provocation.  There was also an attempt to raise diminished responsibility as a defence, but it became unrealistic and unarguable following the evidence of Dr Wong Yee-him, the defence expert witness, who concluded in his report that the applicant “did not suffer from any psychiatric disorders at the material time.  He did not have diminished responsibility at the time of the alleged offence”[19].  In discussions with the judge prior to the summing-up, defence counsel eventually conceded that diminished responsibility was not, given the evidence of his own witnesses, a “viable position…  And, as I say, I’d rather the jury focus on a viable position than, as your Ladyship says, (be) confused with a position that has no chance”[20].

13.The defence contended that the applicant was confused and muddle-headed^[21] as a result of taking prescribed drugs and other medication bought over the counter in a pharmacy, exacerbated by drinking red wine infused with onions.

14.The applicant accepted that prior to the killing, he had not been suffering from mental problems or psychotic symptoms and was sleeping and eating well[22]. He had been married to the deceased for 28 years.  He accepted that during arguments with the deceased, he would sometimes hurl things, such as umbrellas, to the ground but he had never used violence against her^[23].

15.The applicant explained he was the sole provider for his family and did not want to break up his family by obtaining a divorce. Nevertheless, his family had made him lonely and unhappy^[24].  It was argued that by the time of the offence, the applicant had been ill for at least three days, yet his family members were indifferent to him^[25].  On 30 December 2016, the applicant was still feeling unwell and the medicine, which Dr Khattak had prescribed him, had not improved his condition. He had therefore gone out to buy other medicines from a pharmacy. 

16.On the day of the incident, the applicant had been sleeping in his bedroom.  When he woke up, he was feeling hungry and, accordingly, asked the deceased if there was some food to eat.  However, she responded that there was no rice for him and he should go and eat with his “woman outside”^[26]. He ignored this comment but she continued to scold, or badger, him.  He picked up a pair of scissors from the shrine in their flat, which he was intending to use to cut open a packet of noodles.  Since his wife was continuing with her verbal outburst, he simply wanted to scare her in order to shut her up. However, he described himself at the time as “very unclear minded” and “dizzy” from medication^[27]. In examination‑in-chief, defence counsel was able, without objection from prosecuting counsel, to ask the applicant about certain answers in his VRI, in particular, “Were you having difficulty focusing in answering the questions and dealing with the issues because you seem to be all over the place”.  The applicant responded “Correct”^[28]. This apparent lack of clear thinking in his answers was a repeated theme of counsel’s examination-in-chief^[29].

17.The applicant demonstrated before the jury how he had held the pair of scissors and pointed them at his wife in order to shut her up.  At the time, he was standing outside her bedroom and the deceased was lying on the bed.  However, she would not keep quiet, and he was feeling dizzy.  The deceased then came at him and tried to snatch the scissors from him.  She somehow stabbed him on the wrist, drawing blood.  Having had his emotions bottled up for so long, he became furious and lost control, stabbing the deceased many times without knowing where he was stabbing her^[30].

18.The prosecution disputed this account in evidence from the applicant and suggested it had been contrived.  In his VRI, for example, the applicant had suggested that there had been an argument about his alleged mistress.  He then felt disgruntled, took out a pair of scissors and kept stabbing the deceased.  

19.The defence argued that the applicant was living in a toxic environment, that nobody cared for him, and that he felt especially lonely in the three days prior to the killing.  The last straw had been the deceased’s stabbing of the applicant’s hand.  On the basis of various answers in the applicant’s VRI, which defence counsel went through in some detail at the trial, it was submitted that the applicant was clearly in a hyper-agitated state and unable to explain himself in a clear, straightforward way^[31].

The VRIs

20.The applicant participated in two interviews.  The first (and main) VRI was conducted immediately after the offence between 6:26 pm and 8:09 pm on 31 December 2016; the second, the following day between 1:32 pm and 1:46 pm.  There was no challenge to either of the VRIs, both of which were produced by way of admitted fact evidence^[32].

21.The applicant’s account in his VRI was in similar terms to his later testimony.  The applicant said he was sick and at home for three days prior to the offence^[33]. He said he was upset that nobody had asked or cared about him.  He felt like a “lonely old man”^[34]. His wife accused him of keeping a mistress.  When he asked his wife for food that evening she had told him to go and eat at his mistress’s home^[35]. He described the attack in some detail and how he stabbed his wife in the face.  He said he retrieved a pair of scissors from a drawer and was wearing a glove at the time, and that at one stage she tried to take the scissors and stabbed his hand^[36].

22.He described himself as variously feeling “very muddle‑headed”[37], “muddle-headed and furious”^[38], “dazed”^[39], “seemed to be deranged”^[40], “mad”[41], “possessed”[42], that he had “lost (his) mind”^[43]. He had had a few mouthfuls of red wine infused with onion and he was unaccustomed to drinking wine[44], for which he had a low tolerance[45]. He could drink one can of beer at most and seldom drank alcohol^[46]. The medication made him “drowsy”^[47], “sleepy and tired”^[48]. After the incident he flagged down a taxi and told the driver to take him to Castle Peak hospital; however, somehow the driver took him to Castle Peak police station instead^[49].

Prosecution expert evidence: Dr Worsley

23.The prosecution relied on the evidence of Dr Alan Worsley, an expert in pharmacology and toxicology, whose function was to explain to the jury the possible effects of the medicines the applicant had been taking prior to the offence.  This consisted of both drugs prescribed by Dr Khattak^[50] and those he had purchased over the counter at a pharmacy^[51].

24.Most of the drugs prescribed and bought from a pharmacy were not, in the opinion of Dr Worsley, associated with psychosis. However, two drugs had been so associated in medical literature.  The first, prescribed by Dr Khattak, namely Ciprofloxacin, was a broad spectrum antibiotic; the second, a medication bought over the counter at a pharmacy, namely Phenylephrine, was a decongestant.

25.On these two drugs, Dr Worsley said in his report (Exhibit P112), which was before the jury^[52]:

“Ciprofloxacin the prescribed fluoroquinolone antibiotic for the chest infection has been associated with drug induced psychosis. There are six published reports of ciprofloxacin induced psychosis …

Phenylephrine is a decongestant with mild stimulatory action. There are only two reported case studies demonstrating a possible causal link to the use of phenylephrine and psychotic episodes.  These two case reports describe continued use of phenylephrine and manifested themselves in highly agitated, increased energy, no sleep and increased libido with evidence of mania [contrariwise to the accused’s described demeanour]. Psychosis is rarely seen with phenylephrine use and particularly at prescribed/recommended doses of one tablet (10 mg) three times daily.”

26.Dr Worsley concluded his report^[53]:

“It is my opinion that although both phenylephrine (decongestant found in cough and cold medicines) and ciprofloxacin (antibiotic for chest infections) both of which may be associated with psychosis, (symptoms of which include, agitation, delusion, paranoia) are rare… the overall effect of the cocktail of medication taken by the accused in addition to alcohol, would be sedation, sleepiness and stupor”.

27.In evidence, Dr Worsley testified that the drugs prescribed by Dr Khattak would increase sedation and cause drowsiness; and if taken with alcohol, the sedative effect would increase^[54].  He emphasised that, although the decongestant Phenylephrine and the antibiotic Ciprofloxacin had been associated with psychosis, such a consequence was very rare.  Phenylephrine was commonly used throughout the world, and yet there were only two reported cases worldwide of users ever having had a psychotic episode^[55].

28.He explained that a psychosis consisted of “delusions, hallucinations, imagining things, erratic behaviour”^[56]. In the two reported cases of psychosis by users of Phenylephrine, the patients had been using the drug for a “prolonged time”^[57]. Dr Worsley had not come across any reported link between cases of people experiencing psychosis when receiving the correct dosage^[58].  He agreed in cross-examination, however, that it was not known what dosage of the drugs the applicant had taken^[59].

Defence expert evidence: Dr Wong Yee-him

29.It is not entirely clear to us why this witness was called by the defence, since his report had already made clear that the applicant was not suffering from any abnormality of mind at the time of the offence.  It would seem the defence was initially hoping to mount a defence of diminished responsibility based on a combination of the prescription drugs, medicine and alcohol consumed by the applicant.  In any event, Dr Wong was not helpful to the defence and, not surprisingly, defence counsel made no mention of his evidence in his closing address to the jury.  Mr Boyton (who appeared only at the appeal) has properly made enquiries of defence counsel at trial, in accordance with the procedure laid down by this Court in HKSAR v Apelete (No 1)[60] as to why the defence had called Dr Wong.  The answer he received was that it was hoped that Dr Wong might provide “some faint possibility of raising diminished responsibility as an issue”, which defence counsel regarded as “a long shot”; however, it turned out that “he was not so helpful and the appellant gave no evidence to support diminished (responsibility)”[61].

30.Dr Wong had first interviewed the applicant in Lai Chi Kok Reception Centre on 19 November 2018.  He produced a written report of the same date.  This was supplemented by a second report dated 30 April 2019, which was placed before the jury, and read out and confirmed by the witness in open court (Exhibit D3).   

31.Dr Wong was of the opinion that the applicant was not suffering from any psychiatric illness before and/or during the commission of the offence, nor was he suffering from any psychiatric illness at the time he was interviewed[62]. The applicant was able to describe what took place during the entirety of the incident, throughout which he had remained alert and oriented[63].  Dr Wong concluded that the applicant was not suffering from any psychiatric disorders at the time of the offence, nor was he labouring under any diminished responsibility[64].

32.Dr Wong’s conclusions were that[65]:

“c. The effect of Dr Khattak’s medications and the alcohol on his mental state would not be substantial, both when taken individually or when combined.

d. The likeliest mental effect of the drugs alone would be sedation and drowsiness.

e. Hence, it is most likely that the combined effect of the drugs, Dr Khattak’s medications and 3 glasses of wine would be sedation, drowsiness, difficulty in focusing his thoughts as well as becoming more irritable and volatile than usual.

f. As the combined effect of alcohol, Dr Khattak’s medications and the drugs consumed did not give rise to a psychotic illness (e.g. delirium tremens or drug-induced psychosis), any mental effects they might cause in general would not be considered as an “abnormality of mind”.

……

h. I do not think this would substantially impair his mental ability to understand the nature of his conduct and to form a rational judgement.

i. I do not think that such a combination of drugs would lead to a total loss of self-control.”

The applicant’s grounds of appeal

33.Mr Boyton, on behalf of the applicant at this appeal, has put forward two grounds of appeal.  These grounds include, by way of annexure, a certificate certifying Mr Boyton’s compliance with his duties as fresh counsel on appeal under the practice prescribed in Apelete (No 1), coupled with a signed waiver by the applicant himself in respect of legal professional privilege.

34.By Ground 1, Mr Boyton referred to the judge’s direction in her summing-up that the applicant is “guilty of murder subject to the defences of provocation and diminished responsibility” (emphasis added)^[66]. It is complained that the judge, having decided to mention the defence of diminished responsibility, should have told the jury what it meant rather than leave the issue unexplained.   

35.In respect of Ground 2, Mr Boyton submitted that the jury should have been directed as to the applicant’s “possible psychosis” in relation to the subjective first limb of the defence of provocation.  When directing the jury as to the applicant’s ‘special characteristics’, the judge had correctly adverted to the applicant’s age, up-bringing, education and occupation^[67]. However, in the circumstances, this was not sufficient.  It was contended that what she should have done was specifically to mention the applicant’s psychosis, since this was a “physical” trait which formed part of the applicant’s ‘special characteristics’.

36.Mr Boyton relied, inter alia, on the celebrated speech of Lord Diplock in DPP v Camplin[68], to the effect that:

“…the gravity of verbal provocation may well depend on the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not.”

37.It is argued that the possibility that the applicant may have suffered a psychotic episode was capable of amounting to a ‘special characteristic’ or circumstance of the applicant and should have been left to the jury to consider in the context of provocation.  Mr Boyton accepted that such a psychotic episode could not attain the required standard of proof in order to ground a defence of diminished responsibility; however, it was still a factor that could go to the jury’s assessment of the subjective limb of provocation.

Discussion

38.We can deal very simply with Ground 1.  Although the defence of diminished responsibility had been canvassed in evidence before the jury in the passages we have referred to above from Dr Wong’s statement[69], and they would, therefore, have been familiar with the notion, it was expressly abandoned as unviable by defence counsel in discussions with the judge prior to the summing-up[70]. The judge’s direction to the jury, of which complaint is made, was as follows:

“If you are sure that despite the defendant being drunk and/or drugged he intended to kill or cause really serious harm, then the prosecution have proved the required intention against him and he is guilty of murder subject to the defences of provocation and diminished responsibility.” (Emphasis added)

Although it was unnecessary for the judge to mention diminished responsibility in this context, it cannot have done any conceivable harm, given that the jury would have realised it was no longer a live issue, the evidence of Dr Wong had effectively put an end to it and neither counsel ever mentioned the topic again in their closing addresses.  Nor did either counsel ever seek to raise the matter of what the judge had said with her, either during or after her summing-up.

39.It is further suggested that the jury had received a print-out of the judge’s written directions on ‘Manslaughter (by reason of Provocation)’ to this effect:

“10. If you find that there existed such provoking conduct, then you will have to consider whether such provoking conduct caused the defendant to lose his self-control? If you are sure that the defendant was not provoked in that sense then provocation does not arise and the defendant is guilty of murder, subject to the question of diminished responsibility which I shall address you on later”. (Emphasis added)

However, the italicised words are crossed out in the judge’s copy of her own typed directions, and they were not recited in her oral directions when reading out this paragraph to the jury[71].  Although we have not been able to find the copies actually distributed to the jury, we are far from persuaded that the italicised words would not have been crossed out in their copies as well.  But even if they were not deleted, they could not have any caused conceivable prejudice to the defence, since the issue of diminished responsibility had been raised and clearly abandoned.  The jury received no instructions on the topic, because it was no longer a viable, live issue and the jury would have understood that it was no longer relevant.

40.Mr Boyton realistically accepted that this ground would invite the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, Cap 221, even if there was any substance to it.  With respect, we do not think this matter comes anywhere near engaging the proviso.  What the judge said in the impugned passage was, as a general proposition of law, correct.  However, diminished responsibility ultimately came to have no application to this particular case and the jury would have readily appreciated that.  There is nothing whatsoever in this point.

41.Mr Boyton’s argument on Ground 2 may be reduced to this proposition.  Because there was a possibility, however remote, that the applicant may have been suffering from a psychotic episode as a result of the drugs and other medicine he had consumed, such an episode may have amounted to a ‘special characteristic’ and the jury were entitled to have regard to it when assessing the gravity of the provocation to the applicant.  Mr Boyton accepted that there was no sufficient evidence to establish on the balance of probabilities a defence of diminished responsibility on the basis of the applicant actually experiencing a psychotic episode: however, it was still an issue that the prosecution needed to negative beyond reasonable doubt on the question of provocation.  It was contended that all that was necessary, so far as the defence were concerned, was for the matter to be raised by the evidence.

42.The problem with this argument is that it depends for its foundation on the evidence that the applicant did have, or may have had, a psychotic episode.  The evidence that out of millions of annual prescriptions of Ciprofloxacin, a broad spectrum antibiotic, administered throughout the world, there have only ever been six reported cases of the drug inducing a psychosis in a patient since 1991, is hardly a basis for saying that the applicant was, or may have been, suffering from a psychotic episode, because he had been prescribed Ciprofloxacin.  Moreover, the two reported cases of psychosis associated with the decongestant Phenylephrine, which may be bought over the counter in any pharmacy, were “extremely rare”[72] and resulted from use by the user over a “prolonged time”[73].  There are no reported cases of psychosis linked with the normal, suggested dosage of Phenylephrine[74].

43.Furthermore, as we have seen, Dr Wong, the defence psychiatrist, found no evidence of psychiatric or psychotic illness in the applicant at the time of the offence.  And, most decisive of all, the applicant gave no evidence of any psychotic illness or episode in his account of what happened when he killed the deceased.  The most Mr Boyton could suggest, from various descriptive epithets used in the VRIs, was that the applicant was muddle-headed, infuriated, dazed and mad when he stabbed and strangled the deceased to death.  However, it would be surprising if someone did not experience some, or all, of these and other emotional states in the course of killing another human being.

44.There was, in our judgment, simply no evidential basis for putting such a remote and speculative possibility of a psychotic episode before the jury.  Therefore, this submission founders on the absence of any evidence justifying any such ‘special characteristic’.

45.But even if we were to have accepted there was such a possibility of a ‘special characteristic’, we agree with the submission of Mr Cheng and Mr Kwan, on behalf of the respondent, that there is no suggestion in the evidence that the deceased ever directed her allegedly provocative words at the applicant’s supposed psychosis.  The fallacy, indeed, with respect, the absurdity, of Mr Boyton’s proposition is that the applicant did not even realise he was having a psychotic episode (accepting for present purposes, which we do not, that he may conceivably have been having one) for the deceased to taunt him in respect of it, which she plainly never did, since she knew nothing of his psychotic episode either.

46.In our judgment, the judge was entirely correct on the evidence not to direct the jury to consider the possibility of the applicant undergoing a psychotic episode as a ‘special characteristic’ of his character and circumstances, when there was simply no such evidence.  There is no substance in Ground 2.

47.That is not to say, however, that the question of intoxication was irrelevant at the trial.  Far from it.  The judge made reference several times to the evidence of the effects which a combination of prescription drugs, medicine and alcohol might have had on the formulation by the applicant of the requisite intent for murder.  She told the jury, for example[75]:

“So what you have to decide then is if the defendant had the specific intention to kill or cause really serious harm at the time of the stabbing or strangling the deceased even though he may have been intoxicated. So if, members of the jury, you think he was so intoxicated that he did not intend or may not have intended to kill or cause really serious harm to his wife, then you find him not guilty.”

And she gave other similar directions elsewhere in the summing-up[76].

48.Accordingly, intoxication was a relevant issue, assuming the jury believed that the applicant was, or may have been, intoxicated.  However, given that there was no evidence of the applicant experiencing any drug and/or alcohol induced psychotic episode at the time of the killing, it was not relevant to the question of whether such an episode could amount to a ‘special characteristic’ of the applicant.

Conclusion

49.This was not an easy summing-up to deliver, especially in view of the plethora of defences being mounted.  The judge’s summing‑up was in fact entirely helpful in concentrating the jury’s minds on the essential issues at play, and the evidence relevant to those issues, in particular provocation; on which no complaint is made about her general directions on the topic.

50.The application for leave to appeal against conviction is refused and the appeal dismissed.

Mr Raymond Cheng SADPP, and Mr Steven Kwan, counsel on fiat, of the Department of Justice, for the Respondent

Mr David Boyton, instructed by Khoo & Co, assigned by the Director of Legal Aid, for the Applicant