HKSAR v. Li Cheung Choi
Read the full judgment text of CACC 210/2018 on BabelCite. This Court of Appeal judgment was delivered on 7 September 2021.
1. The applicant was indicted for the murder of his wife, Li Liya (“the deceased”) contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. He was convicted on 11 July 2018, following a trial before Toh J (“the judge”) and a jury in the Court of First Instance.
Cited by 6 cases · Cites 6 cases
|
CACC 210/2018 [2021] HKCA 1278 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 210 OF 2018 (ON APPEAL FROM HCCC 348 OF 2016) ------------------------
------------------------ Before: Hon Macrae VP, McWalters and Zervos JJA in Court Dates of Hearing: 18 October 2019 and 25 August 2020 Date of Judgment: 7 September 2021 ____________________ J U D G M E N T _____________________ Hon McWalters JA (giving the Judgment of the court): A. Introduction 1.The applicant was indicted for the murder of his wife, Li Liya (“the deceased”) contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. He was convicted on 11 July 2018, following a trial before Toh J (“the judge”) and a jury in the Court of First Instance. 2.By a Notice of Application for leave to appeal, the applicant applied for leave to appeal against his conviction. 3.At the original hearing of the application on 18 October 2019 it became apparent that further transcript of the trial would be needed and that there may also be a need for the Perfected Grounds of Appeal to be amended. The appeal was adjourned and the applicant subsequently filed Amended Perfected Grounds of Appeal Against Conviction. 4.At the resumed hearing of the application we reserved our judgment. This is our judgment. B. The trial 5.The applicant pleaded guilty to manslaughter but his plea was not accepted by the prosecution. The plea offer was based on the applicant having suffered from diminished responsibility at the time of the killing. Thus, the only issue at trial was whether the defence of diminished responsibility was made out. No other defence was raised by him. B.1 The prosecution case 6.The applicant and the deceased had travelled from Shenzhen to Hong Kong on 13 October 2015, and stayed overnight at the “iclub” Hotel at Fortress Hill. On 14 October 2015 they flew to Manila. The applicant returned to Hong Kong the same day but the deceased did not return until 23 October 2015. On that day, at 11:38 hours, the applicant met the deceased at the Hong Kong International Airport and they then travelled together in a taxi to Yau Tong, where the applicant’s parents lived. 7.At 12:35 hours, they boarded a second taxi (“the taxi”) which was driven by PW1. The applicant sat in the front passenger seat next to the driver, whilst the deceased sat behind the applicant on the rear passenger seat. They gave him different instructions on their destination, including Tsing Ma Bridge, the airport, “iclub” Fortress Hill Hotel and finally Lok Ma Chau, which they eventually confirmed to be their destination. They made a stop at a public toilet near Ngau Tau Kok, after which both the deceased and the applicant sat in the rear passenger seat. In the course of driving, through the Tate’s Cairn Tunnel, PW1 heard a scream from the deceased and sounds of a struggle. It was the prosecution case that whilst the taxi was travelling through the tunnel the applicant strangled his wife with a belt, which became Exhibit 2, and when he did so he had the intention to kill her or cause her grievous bodily harm. 8.When PW1 later heard the applicant say things suggestive of wanting to commit suicide, he stopped the taxi outside a Circle K convenience store near Sheung Shui MTR station and reported to two police officers, PW2 and PW3. 9.PW2 approached the taxi and observed the deceased was lying prone on the applicant’s lap with the applicant’s left hand on the deceased’s back between her shoulder blades. The applicant looked nervous, was looking forward dully, taking deep breaths with his lips tightly closed and his body was shaking. PW2 noticed that there was a dark-coloured strap around the applicant’s neck and when PW2 spoke to him the applicant tried to strangle himself with the strap and bit his tongue. PW2 thought the applicant was trying to kill himself. PW2 then struggled with the applicant and finally, with the assistance of his colleague and a bystander, managed to remove him from the taxi. At no stage did the applicant try to escape and nor did he say anything to PW2. 10.PW2 then saw the deceased and noticed she was limp, her face was pale and there were strangulation marks on her neck. She appeared to PW2 to be in a coma. 11.The deceased and the applicant were separately taken by ambulance to North District Hospital where they were admitted. On 28 October 2015, after five days in a coma, the deceased’s condition rapidly deteriorated and at 4 pm that day she was certified brain dead. B.2 The evidence of the taxi driver and the transcript of the taxi’s car camera recording 12.The evidence of what transpired in the course of the journey in PW1’s taxi came from PW1 and a recording from a car camera inside the taxi which recorded both video and audio. Thus, there was a recording of all the sounds within the taxi during the journey. A transcript was made of this recording with the voices on the transcript being referred to only by gender as belonging to a male or female but the identities of the voices at relevant times were the subject of admitted facts.[1] 13.The car camera first records the applicant’s instruction to PW1 to take him and his wife to Tsing Ma Bridge which he then changed to the airport. The deceased confirmed the airport as their destination but she then changed it to the iclub Hotel.[2] She repeated this and in response to a query from PW1 she confirmed it. The applicant then interrupted and changed the destination to Man Kam To. He engaged in conversation with PW1 and confirmed they wanted to cross the border. The deceased then said to the applicant:
14.Later the deceased, in an exchange with the applicant, insisted that they go to the iclub Hotel and because PW1 was not familiar with it he got her to write it down for him on a piece of newspaper. 15.There then takes place a conversation between the applicant and the deceased in the course of which the deceased said:
and then a bit later:
After the applicant instructed the taxi driver to go to Lok Ma Chau the deceased said:
followed by:
16.The applicant then asked PW1 to stop at a toilet. PW1 took them to a public toilet near Ngau Tau Kok which both the applicant and the deceased used. After re-boarding the taxi the applicant sat behind PW1 and the deceased sat on the passenger or near side of the rear seat. They restarted their journey to Lok Ma Chau and this took them through the Tate’s Cairn Tunnel. Before reaching the tunnel PW1 did not notice anything unusual in respect of his passengers. He was aware of conversation taking place but could not understand it as it was being spoken in a dialect with which he was not familiar. 17.A short while after entering the tunnel PW1 heard the deceased scream. He looked in the rear view mirror and saw the hand or arm of the applicant around the shoulder of the deceased, near her neck on the left hand side of her and he saw the applicant push the deceased down onto his lap. PW1 said he heard some sounds of struggle and it seemed to him that someone was kicking against the front seat. This lasted for only a few seconds and then there was no more sound. The transcript of the car camera contains only the following record of what occurred:
The prosecution suggested that what can be heard at counter 225 is the applicant strangling the deceased. 18.PW1 said that as they were leaving the tunnel he heard a metal clanking sound which the transcript records at counter 230. Similar sounds were subsequently heard by PW1 and they are recorded at counter 247 of the transcript. When he first heard this sound he turned around and saw a nylon belt with “two loops at the two ends which would produce some sound of metal.”[9] This was like Exhibit 2 which is a belt that was seized from the taxi and which bore bloodstains and DNA of the applicant and the DNA of the deceased and which the prosecution alleged had been used by the applicant to strangle the deceased. 19.At the exit of the tunnel PW1 enquired if everything was okay. This was followed by the applicant talking to himself about wanting to jump from the Tsing Ma Bridge with the deceased. The transcript record is as follows:
20.The applicant then asked PW1 to find a place where he can buy a drink and said there is no longer any need to go to Lok Ma Chau. He then directed PW1 as follows:
21.When, at counter 232, the applicant asked PW1 to buy something to drink, PW1 understood him to mean something poisonous by which he could kill himself. Then, when he heard the applicant say he would like to go to Tsing Ma Bridge he thought he should look for help. He went to Sheung Shui MTR where he stopped his vehicle and sought assistance from police officers. Whilst PW1 was talking to the police he saw the applicant trying to strangle himself with the belt. When the police officers dragged the applicant out of the taxi, PW1 alerted them to the fact that the applicant was biting his tongue. B.3 The prosecution medical evidence 22.The applicant was examined by PW6, Dr Choi Kwok Ching Alvin, in North District Hospital on 23 October 2015. Dr Choi stated that his diagnosis was, “acute stress reaction severe, suicidal attempt.”[12] Dr Choi was the medical officer in charge of the medical ward where the applicant was placed after his admission from the Accident and Emergency Department of the North District Hospital. He said that at the time of his admission the applicant was in a confused state and was not able to react or respond normally and so he was given sedation. The laceration to the tongue, caused by the applicant biting it, was only superficial, which means it was not deep but shallow. It was only to the top layer of the tongue and no blood was oozing from the wound. He was treated with a course of antibiotics and discharged after 3 days, on 26 October 2015. In cross-examination Dr Choi confirmed that the diagnosis of acute stress reaction was not his diagnosis but the diagnosis of a psychiatric colleague. Dr Choi said that as a physician of internal medicine the applicant presented as a person with no abnormality. 23.PW10, Dr Tang Yuen Yee Dorothy, is a psychiatrist employed by the Hospital Authority based at Castle Peak Hospital but also performing duties as a visiting psychiatrist at Siu Lam Psychiatric Centre. Dr Tang said in her evidence that the applicant was kept in Siu Lam Psychiatric Centre under her observation, between 28 October 2015 and March 2016. 24.Dr Tang said that initially the applicant “complained of headache with ‘confusion’ when he thought about the index offence, so details were not discussed in depth.”[13] However, the applicant became more forthcoming and in a clinical interview conducted on 9 November 2015 she was told by the applicant:
25.The applicant told Dr Tang that he started to experience low mood in early 2014 when the deceased disclosed to him that she was in debt to the amount of $500,000 to a number of loan sharks, one of whom was called Hui. When the applicant approached Hui he was told that the amount of the debt was in fact $2 million. The applicant borrowed money from friends but because of the high interest he found it difficult to repay the debt. They tried to avoid Hui but he sent threatening messages to them. Then the deceased’s son asked for assistance in repaying a debt of $300,000 and so he and the deceased went to the Philippines in order to approach people he knew there for loans of money. But when he was refused entry to that country, he returned to Hong Kong. The deceased remained in the Phillipines for a week and on her return he picked her up from the airport. 26.In a subsequent examination in May 2017, the applicant gave a slightly different account of what happened after picking up the deceased from the airport. He told Dr Tang:
27.Dr Tang concluded her report with the following:
28.Dr Tang explained that the applicant was not drug dependent as he did not experience any craving for methamphetamine. Methamphetamine is commonly known as “Ice” and that is how we shall refer to it in this judgment. She did not find him to be suffering from psychosis as he did not experience delusions, hallucinations or thought disorder whilst in a state of clear consciousness and that is why she did not prescribe for him any anti-psychotic medication. The other reason why she did not diagnose psychosis was because his symptoms were of such short duration. The symptoms of a person suffering from psychosis, she testified, “would persist for more than one week, usually at least up to one month”[17]. It is unlikely, she said, that the person would recover within days and without the benefit of medication it would take weeks for a person to recover from the least serious form of psychosis. 29.PW11, Dr Lui Sing Heung, is also a psychiatrist employed by the Hospital Authority, based at Castle Peak Hospital and performing visiting psychiatrist duties at Siu Lam Psychiatric Centre. He examined the applicant on three occasions and the applicant gave him a similar account of what happened in the taxi when it entered the tunnel as he gave to Dr Tang. In his report, Dr Lui recorded the applicant’s account as follows:
30.Dr Lui also said that when he examined the applicant on 28 October, “psychiatric assessment elicited no signs of psychosis”[19]. He then concluded his report by offering the following opinion:
C. The defence case 31.The applicant elected not to give evidence himself, but called two defence expert witnesses, Dr Choi Wing Kit (DW1) and Professor Tang Wai Kwong (DW2) to establish his case of diminished responsibility. In brief, DW1, having interviewed the applicant, expressed the opinion that the applicant was suffering from an abnormality of mind at the time he killed the deceased. The abnormality of mind was Stimulant Psychosis, caused by the applicant’s consumption of Ice. Professor Tang, who did not interview the applicant, was called to provide expert evidence concerning the effect of Ice on the applicant at the time of killing. 32.The applicant gave Dr Choi a similar account as to what happened in the taxi as he had provided to Dr Tang and Dr Lui. Dr Choi recorded it as follows:
33.In his report on the applicant, Dr Choi expressed the following opinion:
34.Dr Choi provided a second report in which he commented on the reports of Dr Tang and Dr Lui prior to reaffirming his diagnosis of Ice-induced stimulant psychosis. 35.Professor Tang had to rely on what was contained in the reports of Dr Tang, Dr Lui and Dr Choi. He said he was unable to form an opinion on whether the applicant had psychotic symptoms prior to the alleged murder of the deceased and whether he had them at the time of the murder. He referred to a particular study which suggested that there are minimal subjective effects from Ice after 12 hours from the time of its consumption, and concluded:
36.He also said that the psychosis resolves shortly after cessation of use and most patients improve within hours to a week of abstinence. This made it possible, he said, that the applicant had sufficiently recovered from his Ice psychosis that it could not be detected by Dr Tang. 37.Thus, the cross-examination of the prosecution psychiatrists by Mr Steve Chui, counsel for the applicant at trial, proceeded on the basis that the applicant was in a state of clear consciousness when he and the deceased boarded PW1’s taxi but he was already showing symptoms of visual and auditory hallucinations and when the taxi entered Tate’s Cairn Tunnel he experienced a psychotic episode in the course of which he strangled the deceased. D. The judge’s discussions with counsel 38.Because the applicant did not testify in his defence the judge raised with counsel how she should direct the jury in respect of the applicant’s statements to the psychiatrists as to his state of mind at the time of the killing. The judge first raised this issue after mid-day on 4 July 2018, saying:
39.The next day, Mr Chui, returned to this issue and the following exchange took place with the judge:
40.This was how this issue was left and, as we shall see later in this judgment, this was how the judge directed the jury. Clearly, Mr Chui made no attempt to dissuade the judge from the correctness of her proposed directions. 41.At 12:44 pm on 10 July 2018 an exchange between the judge and counsel took place on the issue of suicide pact. This exchange, in fact, occurred during the judge’s summing-up and was prompted by comments of the judge that are set out at [66] of this judgment. The exchange proceeded as follows:
42.This resulted in the judge making further comments towards the end of her summing-up which are quoted at [67] of this judgment and which reflect what the judge said to Ms Crebbin. E. The defence counsel’s closing address 43.In his closing address Mr Chui initially suggested to the jury that they could not be satisfied that the applicant possessed the mens rea for murder at the time he strangled the deceased because it was not disputed that at the time he was under the influence of Ice. If the jury could not be sure the applicant intended to kill or cause grievous bodily harm to the deceased then the jury must acquit him. However, as this was contrary to the law relating to voluntary intoxication, objection was taken to it and Mr Chui had to correct this part of his address. The thrust of his address then became solely whether the defence of diminished responsibility had been proven on the balance of probabilities. In support of this defence Mr Chui asserted that the applicant was suffering from a drug-induced psychosis caused by his consumption of Ice. 44.In addressing the state of mind of the applicant, Mr Chui emphasized the lack of motive and that there was no evidence to suggest that this was a premediated killing. Given that it was agreed that the applicant was under the influence of Ice at the time he strangled the deceased, Mr Chui asked the jury to consider whether the applicant actually knew that he was strangling his wife with a belt at the time. Even if he did so realise, there was still the question, Mr Chui submitted, of whether he had the requisite intent for murder as he was under the influence of Ice. 45.In determining whether the mental state of the applicant was that he was only under the influence of drugs, as opposed to being under a drug-induced psychosis, Mr Chui suggested the jury should have regard to what was said by the applicant in the taxi as recorded by the car camera. In this respect he suggested that the transcript of the audio record of the car camera showed the applicant still talking about dying together with the deceased after he had already strangled her which showed that he was unaware of what he had done. 46.Mr Chui then turned to the evidence of the four psychiatrists and argued that the diagnosis of Dr Choi of drug-induced psychosis was to be preferred to that of Dr Tang and Dr Lui of Ice intoxication. F. The Amended Perfected Grounds of Appeal 47.In his Amended Perfected Grounds of Appeal Mr Bruce relies on two grounds of appeal. His first ground of appeal is that the judge erred in repeatedly directing the jury that there was no evidence to support the statutory defence of suicide pact. This defence is contained in section 5 of the Homicide Ordnance, Cap 339 which provides as follows:
48.In support of this ground of appeal Mr Bruce submits that the evidential foundation for the defence could be found in the evidence of the taxi driver (PW1) and the transcript of the taxi’s car camera recording. This evidence, he argued, allowed of an inference that there was a common agreement between the applicant and the deceased having for its object the death of them both. This existed at least in respect of a proposal to kill themselves at the Tsing Ma Bridge and once an inference to this effect was available then the defence had to be left to the jury for them to determine whether that common agreement continued. As to what would constitute an evidential foundation for leaving this defence to the jury, he relied on the statements of legal principle that can be found in HKSAR v Coady (No 2)[24] and Ho Hoi Shing v HKSAR[25]and emphasised that it only had to meet the standard of proof relevant for that defence. 49.The applicant’s second ground of appeal asserts that the judge erred in directing the jury that critical aspects of the medical evidence called by both the prosecution and defence was hearsay and that no reliance could be placed upon it. Alternatively, this ground complains that the judge’s directions may have resulted in a verdict which was unsafe or unsatisfactory because:
The effect of the judge’s directions, this ground asserts, was to withdraw, or diminish, these reports in the eyes of the jury. 50.Mr Bruce also submits that the jury may have been confused by the directions of the judge given that medical evidence adduced by both the prosecution and the defence relied on statements made by the applicant to the reporting doctors and given that the prosecutor made no point in her closing speech on the fact that there was no evidence from the applicant. 51.In support of this ground, Mr Bruce traverses authorities from Australia and England, and argues that the applicant’s statements to the psychiatrists were, in law, admissible, at the very least as evidence of the applicant’s state of mind and his intention at the time he killed the deceased. He relies on a ruling of a single judge of the South Australian Supreme Court in R v Pangallo[26] of which he said:
52.Before us, Mr Bruce argued that everything the applicant said to the psychiatrists was admissible for all purposes, even hearsay purposes. 53.A further argument deployed by Mr Bruce is that the statements to the psychiatrists should all be regarded as mixed statements, containing as they all did certain admissions against interest. G. The respondent’s submissions 54.Mr Ned Lai, and with him Ms Karen Ng, on behalf of the respondent, submits in respect of the first ground of appeal that the requisite evidential threshold that would necessitate the issue of suicide pact being left to the jury was not met in the present case. He argues that the evidence required to substantiate the essential components relating to that issue was insufficient, if not completely lacking. 55.In respect of the second ground of appeal, Mr Lai asserts that the judge was correct to characterise the applicant’s statements to the psychiatrist as hearsay and to limit their admissibility to explaining the basis of the psychiatrists’ opinions and diagnosis. His position is that the common law of England and Australia regards statements made by an accused to a medical practitioner in respect of the circumstances surrounding an offence as hearsay which should be supported by the accused giving evidence. Where the accused does not give evidence then the statements he made to the medical practitioner are not evidence of the truth of their contents but only evidence of the foundation of the medical practitioner’s diagnosis. The extent to which there is no other evidence to establish that factual foundation will affect the weight to be given to the diagnosis. H. Discussion H.1 The issues in the trial 56.Before discussing the grounds of appeal it is helpful to identify what were the key issues in this trial. The first key issue was who killed the deceased and how. Although no admissions were made by the applicant it was not seriously disputed that it was the applicant who killed her and that it was by strangling her with the belt, Exhibit 2, when the taxi was driving through the Tate’s Cairn Tunnel. 57.The second key issue was whether the jury were satisfied that the applicant strangled the deceased with the requisite mens rea for murder. This became an issue because it was accepted that at the time of the killing the applicant still had Ice in his body and the jury had to be satisfied that the presence of it did not affect his intent. 58.If satisfied that the mens rea element of the offence had been proven then the third and final key issue for the jury was whether the defence of diminished responsibility was available to the applicant. 59.A very important contextual element in the trial was that the applicant did not testify. This has relevance to both grounds of appeal in that the consequence of not testifying meant that there was no in-court evidence from the accused; only his out-of-court statements to the psychiatrists. Those out-of-court statements were relevant to the defence of diminished responsibility but provided very limited support for a defence of suicide pact and generally were completely contrary to it. The only occasion the applicant mentioned a suicide pact to the psychiatrists was in an interview with Dr Tang as set out at [24] of this judgment. 60.The vast majority of the applicant’s out-of-court statements advanced an explanation of the applicant experiencing an Ice-induced episode in which he became seized of a paranoid belief that the deceased was being attacked by one of her creditors by being pushed into a well. He claimed to have no recollection beyond this and no memory of strangling her. The medical dispute in respect of the defence of diminished responsibility was whether this drug-induced episode was a manifestation of an abnormality of mind. If it was merely Ice intoxication, as asserted by the prosecution’s experts, then it was not an abnormality of mind; if it was a drug-induced psychotic episode, as asserted by Dr Choi for the defence, then it was an abnormality of mind. 61.The final important contextual element for both grounds of appeal is the fact that the judge raised with counsel the issues of whether to leave suicide pact as an alternative basis for a verdict of manslaughter and the issue of how she should direct the jury on the evidential use they could make of the applicant’s statements to the psychiatrists. Mr Chui at no stage made any attempt to dissuade the judge from her proposed course of action in respect of both issues. H.2 The first ground of appeal 62.Clearly, suicide pact as a basis for a manslaughter verdict was not part of the defence case[28]. It could not be as it required a common agreement between the applicant and the deceased and would have been entirely contrary to the defence of diminished responsibility. However, that does not prevent an accused’s counsel from asking the trial judge to leave this alternative verdict to the jury. It is perfectly proper for a defence counsel to say an alternative verdict arises from the evidence which is not part of his case and which, because it may be contrary to his case, he cannot invite the jury to return but which the judge is nevertheless required to place before the jury with appropriate directions in respect of it. 63.For such a situation to arise there must be evidence before the jury to justify the judge adopting this course. In this respect the comments of Ma CJ in HKSAR v Chau Yui Ming, in giving a judgment with which other members of the Court of Final Appeal agreed, are particularly apposite. He said:
64.Ma CJ then referred to a decision of the English Court of Appeal in R v Fairbanks where Mustill LJ in giving the judgment of the court said:
Of this passage Ma CJ said:
65.In the present case the suicide pact basis for a manslaughter verdict was not run as a defence and, as we have said, was contrary to the defence of diminished responsibility that was relied on in order to reduce the offence of murder to manslaughter. That clearly affected the ability of the applicant to discharge the reverse legal burden that section 5(2) of the Homicide Ordinance imposes on him. He could not testify in support of a suicide pact defence so he had to rely on finding the evidential basis for the defence from other sources. However, these forensic difficulties are, ultimately, of no relevance as the only issue is whether it was in the interests of justice that suicide pact be left to the jury because there was evidence which made suicide pact an obvious alternative verdict. The fact that the applicant’s own counsel did not ask for this to be done is a strong indication that the evidence was in fact lacking. 66.The judge’s view on the lack of evidence to support a common intent is set out at [41] of this judgment. This exchange with counsel was prompted by the judge’s comments earlier in her summing-up when she said:
67.Towards the end of her summing-up and after the exchange with counsel quoted at [41], the judge directed the jury as follows:
68.Thus, although the judge mentioned the possibility of the applicant wanting to kill the deceased and himself, she limited the relevance of this possibility to only the existence of a motive and to proof of intent to kill or cause grievous bodily harm. She repeated this theme when dealing with the evidence of Dr Tang as set out in [24] of this judgment. In respect of what the applicant had told Dr Tang the judge directed the jury as follows:
69.We turn now to a consideration of the evidence, bearing in mind that section 5(3) of the Homicide Ordinance requires proof of “a common agreement between two or more persons having for its object the death of all of them”. 70.The main evidence of suicide pact came from the recording by the taxi’s car camera. Although the driver formed the view that the applicant and, perhaps, also the deceased, wanted to commit suicide, he formed this view only from what he heard and observed but a lot of what he heard he did not understand because it was spoken in a dialect. Thus, the real source of evidence of suicide pact came from the car camera recording and, to a lesser extent, the conduct of the applicant. We say to a lesser extent because by the time the applicant came to overtly discuss killing himself, and trying to do so, he had already strangled the deceased. Whether his attempt to kill himself was genuine or whether it was just due to his emotional state at having strangled the deceased were competing inferences open to the jury to draw. Even if the jury found that he wanted to kill himself, that alone would not prove the existence of a suicide pact. If there was some evidence of such a pact then the applicant’s attempt at suicide would support an inference that such a pact existed and that his killing of the deceased was pursuant to it. But it does not, on its own, prove these matters. 71.What the evidence must be is dictated by the terms of the section. The evidence must allow of an inference that:
72.One of the cases on which Mr Bruce relies is HKSAR v Coady (No 2) where Keith JA discusses the quantum of evidence that must exist in order for the defence of provocation to be left to the jury. We note that at page 587A of the report Keith JA quotes with approval a statement by Lord Taylor CJ in R v Cambridge[35] where he said at page 975D-F:
73.In his oral submissions before us Mr Bruce acknowledged that, at best, the evidence was “thin” and “murky” but, nevertheless, submits that a common agreement can be inferred from the conversation in the taxi. We do not agree. Even those statements of the deceased that are quoted at [15] of this judgment do not evidence an intention by the deceased to commit suicide, let alone a common agreement between her and the applicant to do so. The initial instruction to PW1 that he drive them to Tsing Ma Bridge may reflect the applicant’s state of mind but does not allow of an inference that the deceased shared his suicidal thoughts. Likewise, the statements of the applicant after he had strangled the deceased evidence his intention to kill himself and a desire that he and the deceased die together, but not a common agreement to which the deceased was a willing party. 74.Having carefully read the transcript of the taxi’s car camera recording, it is clear to us that what statements there are from the deceased reveal a positive intention by her not to kill herself. For example, she repeatedly asked to be driven to the iClub Hotel and actually wrote the name of it on a piece of newspaper when PW1 demonstrated his ignorance of it. At another stage, the deceased enquired of the applicant “Where are you taking me to?” This query, at counter 48, followed by the deceased insisting on the iClub Hotel, despite the applicant telling PW1 “Do not listen to her.”[36] clearly demonstrates the lack of an agreement between the deceased and the applicant. There are other statements by her that also suggest she was not in a suicidal state of mind. 75.To meet the threshold requirement, the evidence must go beyond establishing that the deceased was upset, emotional or even depressed. It has to establish, to use the language of section 5(3), “a settled intention of dying” pursuant to a pact with another. Anything less only undermines the protection, otherwise afforded by the reverse burden operation of the section, “for society from murder disguised as a suicide pact killing.”[37] 76.As the second ground of appeal asserts that evidential use can be made of the hearsay statements of the applicant to the psychiatrist we shall consider whether the evidential threshold was reached if regard could be had to the statements of the applicant to Dr Tang that are quoted at [24]. In our view it does not. That statement shows what the applicant wanted to do, not what the deceased wanted to do. Of course, if regard could be had to what the applicant told the psychiatrists then this ground of appeal would have to fail for other than the one occasion quoted at [24], the explanations of the applicant were that he strangled the deceased whilst undergoing an Ice-induced psychotic episode. 77.We are, therefore, not persuaded that the conversation in the car meets the evidential threshold for leaving the partial defence of suicide pact to the jury. Given the way the trial was run, the issues that were raised and the defences relied upon, suicide pact was never a realistic defence and the evidence relevant to it never raised it beyond the level of a speculative possibility. The judge was right to conclude that there was insufficient evidence, if any at all, that the deceased had a settled intention of dying pursuant to which she was a willing party. The first ground of appeal fails. H.3 The second ground of appeal 78.When directing the jury on the use they could make of the applicant’s statements to the psychiatrists the judge said:
After setting out the evidence of Dr Tang the judge directed the jury:
79.When dealing with Dr Lui’s evidence the judge referred to what the applicant told him as set out at [29] of this judgment and contrasted it with what he told Dr Tang and Dr Choi and then directed the jury in respect of all these accounts:
80.Prior to discussing the evidence of the defence psychiatrists the judge gave the standard direction on the consequence of the applicant not having given evidence, saying:
81.As an introduction to her discussion of the defence medical evidence she directed the jury as follows:
82.She repeated this direction shortly after summarising Dr Choi’s diagnosis by saying:
83.The position adopted by the judge is quite clear. Essentially it was that everything said by the applicant was hearsay and, therefore, was not evidence. She made no distinction of the kind relied on by Mr Bruce between a narrative of events and a statement as to his state of mind. 84.The directions given by the judge reflect the traditional common law approach to what we shall call “medical histories” provided by a person to a medical practitioner. Perhaps the best summary of this approach can be found in the exposition of the law by the High Court of Australia in Ramsay v Watson where it was said:
85.For the English position on this issue, a convenient starting point is two judgments of Lord Parker CJ in R v Ahmed Din[45] and R v Bathurst[46]. In the former case it was clearly assumed by the Court of Appeal that what is told by a person to a medical practitioner is, when related by that medical practitioner, hearsay evidence. In that case the defence of diminished responsibility was relied on in respect of the appellant’s killing of a man with whom he believed his wife was having an affair. After interviewing the appellant and his daughter the doctor concluded that the appellant was suffering from paranoia. The Court of Appeal made the following comments on the medical reports:
86.In the subsequent judgment of R v Bathurst, Lord Parker, explained what he had said in Ahmed Din:
87.The English position then became solidified with the decision of another Chief Justice, Lord Lane, in R v Bradshaw, where he said:
88.The first basis for admissibility that is described in Ramsay v Watson will not usually be applicable in a criminal case where the evidence relied upon are statements by an accused. We say that because the statements will usually, but not always, not possess the characteristic of contemporaneity that is a prerequisite to their admissibility. Inevitably the interviews that are conducted by medical practitioners in preparation for trial are conducted well after the crime with which the accused is charged, was committed. That was certainly the position in respect of this applicant. 89.The question before us, therefore, is the narrow one of whether there was a basis for the applicant’s statements to the psychiatrists to be admissible as to the truth of their contents when the applicant did not give evidence and, if not, how the jury was to be directed in respect of them. The case law also discusses the appropriateness of the trial judge making comment to the jury on the failure of an accused to give evidence[50] and whether a judge should exclude medical opinion evidence as being inadmissible when there is no evidence adduced to prove the factual matters on which the opinion is based. 90.In the present case the judge made no adverse comment on the applicant not giving evidence. What she did was to characterise the factual basis of the psychiatrists’ opinions as hearsay, because the applicant did not give evidence, and that as a consequence his statements to them could not be regarded as evidence. Here, she was giving a legal direction on the consequence of the applicant not proving the factual basis for the psychiatrists’ expert opinions and the issue of whether she was right to do so is the issue before us. If she was correct, then she cannot be criticised for what she said. 91.The legal issue of excluding the psychiatric evidence on the basis that, without the factual foundation for the expert opinions having been proved, it was inadmissible, has not been argued before us. Mr Bruce referred us to a number of Australian cases which suggest that there is no uniform practice within Australia. Some courts adopt a flexible approach to the issue and allow the psychiatrist to give evidence even when the factual foundation is not proven[51]; others adopt a more strict approach to admissibility and if proof of the factual foundation is lacking then the expert opinion is regarded as inadmissible.[52] However, we note that the practice in Hong Kong is to generally regard a failure by an accused to testify as going to the weight of the expert opinion evidence on which he relies, rather than its admissibility, with the jury being told to disregard it if they find the factual foundation for the opinion has not been proven.[53] 92.Mr Bruce relies on a line of Australian cases which he says support his proposition that the applicant’s statements to the psychiatrist, being statements as to only his state of mind at the time of the offence, were admissible. This line of cases starts with Gordon v R, a judgment of the High Court of Australia in May 1982. This judgment consists of only four paragraphs of substance and in one of them the court said, in the course of refusing special leave to appeal:
Ever since, courts in Australia have been grappling with what kind of evidence the High Court was referring to and the legal basis for its statement. 93.Before leaving this case it is worth quoting the comments of the New South Wales Court of Criminal Appeal in the judgment in Gordon that was under appeal. In giving a judgment with which the other members of the court agreed, Street CJ said:
These comments are interesting as they reflect an attempt to reconcile the potentially harsh consequence of characterising the medical history as hearsay with the desire not to cause unfairness to an accused. We shall return to this issue later in this judgment. 94.Chronologically, the next relevant judgment is that of the High Court of Australia in Walton v R[55]. In that case the accused was being tried for murder. Witnesses gave evidence of statements by the deceased in their presence of her intention to meet the accused the following day. The issue was whether this was hearsay evidence and, if not, on what basis it was admissible. 95.Mason CJ, in agreeing with Wilson, Dawson and Toohey JJ, analyzed the legal issue as follows:
96.The statement of intention will be admissible where a factual issue is relevant to that statement of intention. Thus, if the author of the statement says he will do a particular thing or will be at a particular place at a particular time and it is relevant to prove any of these matters without his evidence then a person who heard him make this statement can give evidence of it. The fact that the author said what he would do or where he would go can be a piece of circumstantial evidence that he in fact did what he said he would do. 97.Although Mr Bruce acknowledges that what Mason CJ had to say in Walton v R had nothing to do with medical histories given to medical practitioners, he nevertheless submits that the principle described by Mason CJ in the sentence above which is in italics, “is of broad application”. We cannot agree it is of broad application as it is confined to those situations where what was said does not breach the hearsay rule because the relevance of what was said lies in the fact that it was said, not the truth of any fact asserted or referred to in what was said. 98.Its application is well illustrated by the case of R v Hendrie in which King CJ of the South Australian Supreme Court clearly explained why such evidence did not infringe the rule against hearsay. This case concerned the trial of a painter/decorator for the murder of a woman in the bedroom of a house. The prosecution relied on a statement by the husband of the deceased as to a conversation he had with her in which they discussed converting a window of the bedroom into a door. The conversation was adduced in order to explain why the deceased might have gone to the bedroom with the accused without any struggle. King CJ said:
99.Clearly, this category of non-hearsay evidence, to which Mason CJ was referring in Walton and King CJ in Hendrie, relates to those situations where the fact that something was said has probative value in its own right, independent of any factual assertion it might contain. Because the statement is not being adduced to prove any fact contained within it, it is not in breach of the hearsay rule. In that respect, the Ramsay v Watson second category can be seen as an illustration of the Watson v R principle. The relevance of the statements of the applicant to the psychiatrists lies not in proving that the applicant in fact experienced the psychotic episode that he describes; rather they are set out in the reports solely for the purpose of establishing what the psychiatrists were told by the applicant (that is, that they were said) and that, in consequence, they formed the factual assumptions on which the psychiatrists based their expert opinions. Whether the applicant experienced a psychotic episode is for the jury to decide, not the psychiatrists, but that decision they can only make when admissible evidence relating to it is placed before them. 100.Contrary to what Mason CJ said, Mr Bruce is seeking to use what the applicant told the psychiatrists for a hearsay purpose, namely to prove that at the time the applicant killed the deceased he was experiencing the psychotic episode he described. 101.We do not accept that what Mason CJ said was intended as a gloss upon the Ramsay v Watson second category. He was referring to statements revealing the state of mind of the speaker at the time the statements were made; not statements of a state of mind that existed at some time in the distant past. 102.Mason CJ also made some comments urging a more flexible application of the hearsay rule. He said:
103.This brings us to R v Pangallo, a case of murder in which the defence of insanity was relied on through the evidence of two psychiatrists who testified that the accused was suffering from paranoid schizophrenia. 104.The murder took place on 27 and 28 December 1987. The accused did not give evidence but there was evidence from other sources relating to the accused’s mental health. The judge admitted the interview with the psychiatrist that took place on 31 December 1987 under the Ramsay v Watson first category for admissibility. There were interviews in June and August 1989 and the Prosecutor did not object to their admissibility under the second category of Ramsay v Watson, but she submitted that, in accordance with the Ramsay v Watson principle, “the opinions given by the psychiatrists should not be accepted because they depended so much on assertions made to them by the accused and not confirmed here.”[59] In response to this submission Prior J said:
105.Prior J then referred to Gordon v R and interpreted the comment that statements to a psychiatrist may themselves be original evidence as referring to statements by an accused about his state of mind. He reached this conclusion after referring to what was said in R v Blastland[61] and Walton v R. He said:
106.If Prior J is correct then it would mean that any part of a medical history that related to the accused’s mental state would be admissible, not as an exception to the hearsay rule, but in its own right. 107.The only occasion where Prior J’s judgment has been considered by an appellate court appears to be R v Barrett, a 2007 judgment of the Court of Appeal of the Supreme Court of Victoria. However, after setting out the issues that fell to be addressed from the case law, the Court of Appeal declined to state its position as it had not heard full argument on the question. The Court said:
108.Thus, there is division within the common law world on how to treat non-contemporaneous[63] medical histories. The various approaches can be summarised as follows:
Under (i) above the expert opinion remains before the jury but under (ii) above the expert opinion is excluded from the evidence in the trial. 109.We do not accept that a distinction can be validly made between a narration of events and a description of a state of mind, such as feelings, perceptions, hallucinations or delusions, for behind every such description is an assertion that they occurred; that they were actually felt and experienced by the accused. Of course the accused is not trying to prove the truth of them because they are not real; only that they were real to him because at the time he committed the offence, he experienced them. The expert cannot say that the accused experienced them, but can only give an expert opinion based upon an assumption that the accused did experience them. Whether the accused truly experienced them is a fact in issue which requires proof and of which the jury is the final arbiter. 110.This distinction is also unattractive for the reason that it makes intelligible direction to the jury difficult, if not impossible, when a medical history contains a mixture of a narration of events and assertions as to the accused’s state of mind. 111.We have not, as yet, discussed existing Hong Kong case authorities on this subject. Surprisingly, there appears to be only one, the Court of Appeal decision in HKSAR v Kissel[65]. 112.In this case the applicant relied on the defence of diminished responsibility. Reports were compiled by psychiatrists on behalf of both the defence and the prosecution. The prosecution chose not to call its psychiatrist, but the defence wished to take advantage of an opinion expressed by him in his report. However, they did not wish, themselves, to call him. In order to obtain the benefit of the prosecution psychiatrist’s opinion, without calling him as its witness, the defence incorporated his favourable opinion into the defence psychiatrist’s report. The prosecution objected to this course and the judge ruled that, without calling the prosecution psychiatrist, the content of his medical report was inadmissible and the defence psychiatrist could not include in his report the opinion of the prosecution psychiatrist or make reference to it. This ruling of the judge became a ground of appeal. 113.In the course of dealing with this ground of appeal, before ultimately dismissing it, the Court of Appeal discussed the basis for admissibility of hearsay evidence in expert reports. It started with the following propositions:
114.In support of these propositions the Court of Appeal referred to statements by Bingham J in H v Schering Chemicals Ltd[66] and a summary of the law by Professor Rosemary Pattenden in her article Expert Opinion Evidence Based on Hearsay[67]. Professor Pattenden’s summary of the legal principles, as quoted by the Court of Appeal, was as follows:
115.Thereafter, in order to respond to the arguments of the applicant’s counsel, the Court of Appeal discussed what an expert could refer to in his report, saying.
116.At [142] the Court of Appeal stated the legal position to be as follows:
117.The defence psychiatrist was Dr Wong and the prosecution psychiatrist was Dr Lui. The Court of Appeal described the evidence that Dr Wong could lawfully give as follows:
118.An important contextual element in this case is that the applicant did, in fact, give evidence and so the precise issue that arose in the present case was not before the Court of Appeal. Nevertheless, it is clear that the Court of Appeal accepted the following propositions of law:
119.Thus, on the basis of existing authority we are bound to regard what a patient tells a medical practitioner as to his state of mind and the circumstances in respect of an event occurring at some time in the distant past as hearsay evidence which cannot be used as evidence of its truth. That, it seems to us, is the uniform view of the common law in England and Australia and it is the clear view of our own Court of Appeal. Therefore, the question for us is whether we are justified in departing from the settled law of Hong Kong and in creating new law. 120.In Hong Kong the Court of Appeal is bound by its previous decisions and can only depart from a previous decision where it is satisfied that its previous decision is plainly wrong. This test was laid down by the Court of Final Appeal in Solicitor (24/07) v Law Society of Hong Kong[68]. 121.In explaining what was involved in the application of the “plainly wrong” test Li CJ said:
122.Given the abundance of authority on this issue and the high hurdle set by the “plainly wrong” test, we cannot possibly say that the Court of Appeal decision in Kissel is plainly wrong. Indeed, we are bound by it. 123.Once it is accepted that the statements of the defendant are hearsay, and on the assumption that they are not proven by other admissible evidence, the question then arises of what to do with the expert’s report. The judge can either exclude the report as being inadmissible because it is irrelevant, or allow the report to be placed before the jury with a direction that when considering what weight to give to it, they have regard to the fact that the factual scenario on which it is based has not been proven. The Court of Appeal in Kissel appears to have favoured excluding the report, although, arguably, it did not make a positive determination of this issue. We are of the view that there are cogent arguments against both options and we are not attracted to either of them. 124.In our view, the strict application of the hearsay rule results in the expert opinion being ruled inadmissible. Yet, if, because of his medical condition, the accused is advised not to testify then the consequence of possibly preventing him from advancing his defence seems a disproportionate response created by an inflexible application of the hearsay rule. We see this as an area of the criminal law where a balance has to be struck between strict legal principle and fairness to an accused. We are, after all, dealing with defences to the most serious crime known to the criminal law which, on conviction, attracts a mandatory sentence of life imprisonment. 125.However, once it is decided that the expert opinion may be put in evidence, the question then becomes how to direct the jury on it. We cannot help but wonder what the jury would understand of a direction that they may have regard to the expert opinion but not to the truth of the unproven facts on which it is based. When put like this, such a direction is, with respect, a nonsensical one because the probative value of the former depends entirely upon having regard to the truthfulness of the latter. If understood by the jury, such a direction will, in effect, require them to ignore the expert opinions and so the judge might just as well have excluded them from evidence. 126.An analogous issue arose in the common law’s approach to directing the jury in respect of the content of a mixed statement given by an accused out of court which the prosecution adduce as part of their case. The traditional, strict, approach was to say that the admissions of the accused, being against interest, were an exception to the hearsay rule but the exculpatory parts were not evidence as they were prior self-serving statements. In R v Sharp the dichotomy between the two views was explained by Lord Havers as follows:
127.In its judgment the House of Lords recognised that the “purist” approach was not a practical approach that would be understood by lay jurors. The need for jury directions to be intelligible to lay persons was emphasized by Lord Mackay of Clashfern LC in the same case. He said:
128.In words which resonate with the issue we must now decide, the following comments of Lord Havers in resolving the question before the House of Lords, bear repeating:
129.There are certain similarities between the issue in Sharp and the issue before us. In Sharp there were two types of evidence; the admissions could be used as evidence of their truth whilst the exculpatory parts could not and the jury would have to be directed that there was a limited use only to which they could put those parts. For the House of Lords, this raised issues of both fairness and practicability and they resolved these issues by the simple means of saying that henceforth the jury should be directed that the whole of the statement should be considered by them in deciding where the truth lies but that the judge may comment to the effect that the exculpatory parts may carry lesser weight. This has become the law of Hong Kong. 130.In the case of unproven medical histories we have the question of whether the jury should be directed that their content is not evidence but that the expert opinion founded on them remains evidence before them for their evaluation. In our view this is not a practical approach which a jury will be able to apply. We can see difficulties with the purist approach of treating the expert opinion as inadmissible; nor do we see the solution as lying with the approach of Prior J of trying to find an appropriate legal pigeon hole into which to fit unproven medical history evidence so that it is taken out of the Ramsay v Watson second category and given original admissibility in its own right. 131.Heeding the encouragement of Mason CJ to adopt a more flexible approach to hearsay evidence, and attracted by what the House of Lords accomplished in R v Sharp, we see that a possible, and not unattractive, solution would be to cut the Gordian Knot created by the rule against hearsay, as it applies to unproven medical histories, in the same way that the House of Lords did in R v Sharp in respect of mixed statements. 132.This would mean that, henceforth, juries would be directed that the whole of the expert opinion is before them for them to determine where the truth lies. The judge would further direct them that the expert opinion is founded upon, and assumes the truth of, the medical history provided by the accused but that it is for the jury to decide whether they accept this medical history as true or not. Where the accused has not given evidence in support of his medical history, the judge may comment that the jury is entitled to take that into account when determining what weight they should give to the medical history and that determination may affect their assessment of the expert opinion which is founded on that medical history.[73] The judge could also, in appropriate cases, make a Bradshaw comment, namely, that the defendant bears the burden to establish the defence and could have provided the evidence to prove the medical history had he chosen to do so. Such a comment would not be appropriate where there were medical reasons for the accused not testifying. 133.However, for reasons of stare decisis, the merits of our suggestion for what the law should be, must be left to others to decide. 134.In the present case the judge directed the jury that the medical history of the applicant was not evidence before them. In view of our decision on the state of the current law we must hold that this was not an erroneous direction. I. Disposition 135.We allow the application for leave to appeal but dismiss the appeal.
Mr Ned Lai SADPP and Ms Karen Ng PP, of the Department of Justice, for the respondent Mr Andrew Bruce SC, instructed by Li & Partners, assigned by DLA, for the applicant [1] Appeal Bundle, page 11 at [34] of the Admitted Facts. [2] They had overnighted at this hotel on 13 October 2015 prior to flying to Manila. [3] Appeal Bundle, page 447, counter 48. [4] Appeal Bundle, page 451, counter 108. [5] Appeal Bundle, page 452, counter 115. [6] Appeal Bundle, page 452, counter 122. [7] Appeal Bundle, pages 452-453, counter 124. [8] Appeal Bundle, page 464. [9] Appeal Bundle, page 552O-T. [10] Appeal Bundle, pages 465-467. [11] Appeal Bundle, pages 470-471. [12] Appeal Bundle, page 126S. [13] Appeal Bundle, page 478 at [7]. [14] PW10’s medical report, paragraph 8: Appeal Bundle, page 482. [15] Appeal Bundle, page 483 at [10]. [16] Appeal Bundle, page 483 at [12]. [17] Appeal Bundle, page 170L-N. [18] Appeal Bundle, page 484 at [3]. [19] Appeal Bundle, page 485 at [11]. [20] Appeal Bundle, page 486. [21] Appeal Bundle, page 491A. [22] Appeal Bundle, page 491C. [23] Appeal Bundle, page 528 at [89]. [24] [2000] 3 HKLRD 573 [25] (2008) 11 HKCFAR 354 [26] (1989) 51 5 ASR 254 [27] Applicant’s Further Outline of Submissions for Appeal Against Conviction. [28] This was confirmed by Mr Chui in response to an enquiry made of him by Mr Bruce. [29] (2019) 22 HKCFAR 368, 385-387. [30] [1986] WLR 1202 at 1205-1206. [31] HKSAR v Chau Yui Ming (2019) 22 HKCFAR 368, 388-389. [32] Appeal Bundle, pages 32P-33H. [33] Appeal Bundle, pages 64R-65L. [34] Appeal Bundle, page 39L-T. [35] [1994] 1 WLR 971 [36] Appeal Bundle, pages 448-450 at counters 62-95. [37] A-G’s Reference (No 1 of 2004) [2004] 1 WLR 2111, 2148E at [130]. [38] Appeal Bundle, page 38C-R. [39] Appeal Bundle, pages 40K-41A. [40] Appeal Bundle, page 48L-M. [41] Appeal Bundle, page 51B-D. [42] Appeal Bundle, page 51G-M. [43] Appeal Bundle, page 52H-L. [44] (1961) 108 CLR 642, 647-650. [45] (1962) 46 Cr App R 269 [46] (1968) 52 Cr App R 251 [47] (1962) 46 Cr App R 269, 274. [48] (1968) 52 Cr App R 251, 255-256 [49] (1985) 82 Cr App R 79, 83. [50] As happened, for example, in R v Bathurst (1968) 52 Cr App R 251 and R v Barry (Adrian) [2010] 1 Cr App R 32. [51] See R v Barrett (2007) 171 A Crim R 315, 340 at [119]; R v Gordon BC8111151 quoted at [92] of this judgment. [52] See, for example, Koushappis v Western Australia (2007) 168 A Crim R 51 at [47]; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [64] and [55]; R v Ping (2005) 159 A Crim R 90 at [43]-[46]. [53] See the Hong Kong Judicial Institute’s Specimen Directions in Jury Trials, November 2020, Chapter 110, pages 110-2 at Note 2 and Specimen Directions at 110-4. Although encouraging judicial officers to scrutinise reports for the presence of inadmissible hearsay evidence the Notes do not address the issue of the impact of the presence of such material on the admissibility of the report itself. The Specimen Direction at 110-4 suggests that the jury should be directed:
[54] Gordon v R (1981) 41 ALR 64 [55] (1989) 166 CLR 283 [56] (1989) 166 CLR 283, 288-289. [57] (1985) 37 SASR 581, 585. [58] (1989) 166 CLR 283, 293-294. [59] (1989) 51 SASR 254, 270. [60] Ibid. [61] [1986] AC 41 where Lord Bridge of Harwich said at page 54D:
[62] (1989) 51 SASR 254, 271. [63] We use the word “non-contemporaneous” to refer to medical histories that are outside the ambit of the Ramsay v Watson first category. [64] This depends on what is meant by the High Court of Australia in Gordon v R. In R v Barrett the Court of Appeal of Victoria thought Prior J treated it as encompassing even a narrative of past events. [65] [2014] 1 HKLRD 460 [66] [1983] 1 WLR 143 [67] [1982] Crim LR 85 [68] (2008) 11 HKCFAR 117 [69] (2008) HKCFAR 117, 141-143. [70] [1998] 1 WLR 7, 12A-D. [71] ibid, 9B-C. [72] [1988] 1 WLR 7, 15E-F. [73] Such a comment would be along the same lines as the comment that is made in respect of mixed statements, namely, “you may feel that there is less weight to be attached to his [excuses] [explanations], for they were not made on oath, have not been repeated on oath, and have not been tested by cross-examination.” See Hong Kong Judicial Institute, Specimen Directions in Jury Trials, November 2020, Chapter 113-5. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under CACC 210/2018