HKSAR v. Hernandez Borjas Raul Orlando

HCCC 359/2019

[2021] HKCFI 1119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 359 OF 2019

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BETWEEN

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R U L I N G

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1.The defendant is charged with one count of trafficking in a dangerous drug contrary to s4(1)(a) & (3) of the Dangerous Drugs Ordinance, Cap 134, in that he imported 1,420g of cocaine into Hong Kong on 6 October 2018. This is an application by the defendant to adduce the expert evidence of Dr Sammy Cheng. Dr Cheng is a clinical psychologist. His amended report is dated 12 April 2021. Mr Kelly, on behalf of the defendant, submits that the report is admissible to support his argument that the defendant was duped into carrying the cocaine into Hong Kong and had no knowledge that he possessed it at that time.

INTRODUCTION – THE TEST AS TO ADMISSIBILITY OF EXPERT EVIDENCE

2.The best evidence in any trial is from a witness who gives evidence of that which he or she personally experienced, whether that be what he saw, heard or did, or had done to him. A witness must speak to the facts which occurred in his or her presence. This rule necessarily excludes hearsay but it also excludes the giving of opinion or of belief[1]. The giving of opinion evidence by an expert is an exception to this rule. The foundation for it was laid down by Lord Mansfield in Folkes v Chadd (1782) 3 Doug KB 157, when he said:

“The opinion of scientific men upon proven facts may be given by men of science within their own science. An expert opinion is admissible to provide the court with scientific information which is likely to be outside of the experience of a judge or jury. If, on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case, if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion any more helpful than that of the jurors themselves: but there is a danger that they may think it does.”

3.The first question to be answered by the court is whether expert opinion evidence is necessary.[2] For if it is not, then this application must fail.

4.The second question is that of relevance. It is trite law that evidence put before the court must be both relevant and admissible[3]. The test should be applied in that order, relevance first and then admissibility. Evidence is relevant if it is logically probative or dis-probative of some element in dispute[4]. That is largely a matter of experience and common sense. But relevance does not result in the evidence becoming admissible, it is a condition precedent to admissibility[5].

5.Only after the issue of relevance has been dealt with will the Court look to whether the evidence is admissible under the rules of evidence. Even so, some parts of a document may be admissible whilst others are not. In R v Turner, Lawton LJ said:

“Our law excludes evidence of many matters which in life outside the courts sensible people take into consideration when making decisions. Two broad heads of exclusion are hearsay and opinion. As we have already pointed out, the psychiatrist’s report contained a lot of hearsay which was inadmissible. A ruling on this ground, however, would merely have trimmed the psychiatrist's evidence: it would not have excluded it altogether.”

6.Admissibility in the instant case may be considered under several heads. The first and most obvious being the qualifications of the expert witness. Part and parcel of that exercise is the quality of the underlying academic research upon which his or her opinion is based[6] as well as the issue of the independence of that opinion[7]. As to this particular head of admissibility, the Court must be satisfied that the expert witness has the necessary expertise in the area of scientific or specialist research upon which his opinion is based[8]; that the research is peer reviewed and tested such that it can be put before the jury as an established and predominant body of opinion upon which they should properly rely, and that the opinion is independent of the party instructing him.

7.It is usually not until those questions have been answered that the Court will consider whether the facts upon which the opinion is premised are, of themselves, admissible. This will often include the nature and provenance of the evidence relied upon but it also covers an assessment of whether the assumptions to be drawn from the admissible facts and science are sound. This principle refers not only to the exception to the rule against hearsay which allows an expert witness to rely upon a body of work by other specialists in the same field as himself and upon which he bases his opinion[9], but also to any other fact upon which his opinion is premised and from which assumptions are drawn.

DR CHENG’S REPORT

8.Dr Cheng is a clinical psychologist. He relies upon clinical examinations carried out with the defendant over a period of eight hours on 4 and 17 February 2021, with the assistance of an interpreter, and also interviews with the wife and son over video conferencing for one hour on 10 February 2021.

9.In general terms the report contains the following:

(1) Paragraphs 7 to 9 provide background to the defendant’s life in Honduras. It is also character evidence.

(2) Paragraphs 10 to 16 identify no psychopathology. They rehearse the defendant’s version of the facts and yet again appear to go to veracity and credibility.

(3) Paragraphs 16 and 17 identify no psychological or intellectual issues.

(4) Paragraphs 18 to 19 refer to the SMMPI-3 test. There was no severe psychopathology. The commentary in respect of cynicism relates to post offence characteristics and is irrelevant.

(5) Paragraphs 20 to 21 refer to the STIPI test. It is from this test and the hearsay evidence of the family, that Dr Cheng posits that the defendant possessed personality traits of conscientiousness and emotional stability. The former is relied upon heavily thereafter.

(6) Paragraphs 22 to 42 seek to identify common factors arising from the 23 sets of materials at Appendix 5.

(7) Paragraphs 43 to 44 deal with the ‘validity’ of responses to psychological tests.

(8) Paragraphs 45 to 54 provide the opinion, which in summary is:

(i) There are no significant inconsistencies between the facts as reported by the defendant and the family and his test results and therefore the results of his examination are valid and reliable.

(ii) The defendant’s intellectual and cognitive functioning appear unrelated to the present incident.

(iii) There are no severe psychopathological or personality disorders.

(iv) There are two psychological explanations for scam compliance which can be dealt with under the heads of ‘deceiver’s influence’ and “receiver’s susceptibility”.

(v) The defendant has the following traits which make him scam compliant:

(a) his perception of the very high value incentive of the scam emails;

(b) his strong conscientiousness in responding to scam emails;

(c) his over confidence in his ability to detect scam emails;

(d) his salient trust and obedience to authority; and

(e) his cognitive biases in appraising fraudulent emails.

(9) Paragraph 53 states that “it is highly probable that HB is a victim of internet scam in this incident”.

ANALYSIS OF THE EXPERT EVIDENCE OF DR CHENG

Is the evidence out-with the experience of the jury?

10.The defence seek to rely upon this report primarily to support their suggestion that the defendant had been duped into unknowingly carrying dangerous drugs. They wish to show that he had a ‘tendency to be susceptible’ to internet fraud. Mr Kelly submits that the defendant will come before the court to say this and he wishes to pray in aid this report to support that contention. He submits that it is not intended that this evidence could or should stand on its own. As a matter of law, the issue upon which the defence wish Dr Cheng to give evidence is, indirectly, upon the issue of knowledge of possession of the dangerous drugs. That is the only issue in trial before the jury. So far as I can tell at this stage of the trial, the defence case is: ‘I did not know the drugs were in my possession in the backpack because I thought I was carrying the backpack as a gift for third parties whom I believed were providing me with legitimate funds’. Dr Cheng’s report therefore goes to the state of mind of the defendant throughout the alleged events from beginning to end. A state of mind which, on Dr Cheng’s own analysis, was normal.

11.Expert evidence as to the issue of mens rea is admissible if there is evidence of mental illness or a psychopathology, which suggests the defendant could not form the necessary intent. Where there is no such evidence of mental illness then opinion evidence as to the formation of intent (or in this case knowledge) would be inadmissible. In R v Masih [1986] Crim LR 395, the Court of Appeal posed the question:

“Was this a case where the jury could form their own conclusions or was expert evidence required to assist them?”

They went on to say:

“Every case depends on its own facts and this was an area where, par excellence, once the principle was established the answer would vary from case to case. In this case the appellant’s state of mind and intelligence and his ability to appreciate the situation were relevant as the Crown had to establish that the appellant knew the complainant was not consenting or was reckless as to whether she consented or not. Given his capacity to understand was material, was the judge bound to admit the evidence? It was unnecessary to determine when, if ever, a defendant whose IQ was above that of a mental defective would be permitted to adduce evidence of mental capacity. Generally speaking, if a defendant came into the class of mental defective with an IQ of 69 and below, then in so far as that defectiveness was relevant to the particular case it might be that expert evidence should be admitted about it. That was in order to enlighten the jury on a matter that was abnormal, and therefore, ex hypothesi, presumably outside of their experience. If admitted it should be confined to the assessment of the defendant’s IQ and to an explanation of any relevant abnormal characteristics which such an assessment involved. However, where the defendant was within the scale of normality (albeit as the appellant was, at the lower end of that scale) expert evidence was not as a rule necessary and should be excluded.”

12.One of the tests as to whether expert opinion evidence is admissible in a case such as the one before this Court is whether the evidence supports a diagnosis of some form of affliction which is outside of the norm and therefore the jury would be unable to draw upon their own experience. There is no suggestion within the report that the defendant was suffering from any defect of reason or abnormality of mind or that he acted in any way abnormally. Nor was he intellectually challenged. Following Masih supra, it is not permissible to call an expert witness to tell a jury what he thinks a defendant’s state of mind was at the relevant time when that defendant does not suffer from an established psychopathology[10]. It is entirely within the competence of the jury to decide what the defendant knew or believed at any given time and how he would or should have behaved in the particular circumstances of this case as the events unfolded.

Is the defendant’s susceptibility to internet fraud relevant to an issue in the trial?

13.If I am wrong on finding that the evidence which the defence wish to adduce for the consideration of the jury is within the ordinary experience of the jury, I have gone on to consider whether the evidence is relevant. For the avoidance of doubt, the next question is premised upon a finding that the expert evidence is not within the ordinary experience and knowledge of the jury. Is the evidence of Dr Cheng relevant to the issue in the trial i.e. knowingly possessing dangerous drugs? A man’s personality and mental characteristics do have a bearing upon his acts. An opinion on the issue of a defendant’s personality by a man of science, here a clinical psychologist, may be relevant in assisting the jury to come to a judgment; it will depend upon the circumstances of the case. Mr Kelly submits that the ‘susceptibility’ of the defendant to internet scams is relevant to how he came to be in possession of the back-pack containing the drugs without knowing or realizing the drugs were there. Quite apart from whether this is evidence which the jury are capable of assessing for themselves, clearly evidence of why the defendant did as he did or reacted as he did, is relevant to the issue of whether he knew that he was carrying dangerous drugs. It would prima facie be relevant but would it be admissible in this form.

Is it admissible?

(a) Expert Qualifications

14.Dr Cheng is a clinical psychologist of some considerable experience. He holds a PhD in clinical psychology and has been practicing for over 26 years. He carried out a Spanish version of the Minnesota Multiphasic Personality Inventory (MMPI-3)[11]; a non-verbal intelligence test (TONI-4)[12]; a Big 5 Personality Traits assessment (STIPI)[13] and the Rey 15-item memorization test. He did not find the defendant to be either mentally ill or of low intelligence. He found him to have personality traits of conscientiousness and emotional stability[14]. In respect of the carrying out and analysis of such tests, Dr Cheng is qualified to give expert opinion evidence.

15.Dr Cheng has helpfully provided the materials he has personally produced over the years, which are voluminous. None of these materials include a study of susceptibility to either fraud in general or to internet fraud in particular. Dr Cheng is not a specialist in the area of cyber psychology. That is not to say that he is not able to read such materials and draw conclusions from it but he cannot be said to be an expert in this field. His practice specialisation appears to include eating disorders, post-natal depression, chronic pain management, psychosomatic disorders, sexual dysfunction and other behavioural disorders. On this issue alone I would not allow this evidence to be given. I do not make this point to denigrate in any way Dr Cheng’s expertise as a clinical psychologist but this is a court of law in which the consequences of a finding of guilt may lead to a significant loss of liberty. It is therefore incumbent upon the courts to ensure that where it becomes necessary to assist the jury in matters of expertise out-with their knowledge, that assistance is given by someone with sufficient expertise to satisfy the stringent requirements of the law. There may very well be occasions when we do not have that expertise within our jurisdiction but it cannot give rise to a situation where the courts accept the ‘next best thing’. There must be no watering down of our evidential rules other than through legislation. They are there to protect the defendant in criminal proceedings.

(b) Body of work

16.Without research of his own Dr Cheng relied upon the materials at Appendix 5 of his report. There are 23 reports or articles. They cover a disparate number of types of cybercrime and whilst the authors may have considered personality types, their primary focus was not to identify with any specificity the personality types prone to cyber crime but more often than not they sought to identify how to educate the public against it. None of the authors suggest that their body of work is definitive, indeed there are numerous references to the conditional or limited use of the research within the articles and other papers relied upon. To provide a few:

(1) Item 6 of Appendix 5 is a study for the Office of Fair Trading in the UK. Amongst its general conclusions it states at 11.3:

“Recognising scams as persuasive communications, and a scam response as an error of judgement, brings in an armoury of theoretical and empirical literature that can be used to supplement the thin and patchy research that has been carried out directly on scams.”

(2) Item 7, an article on why individuals respond to completely worthless scam offers, involved two questionnaire studies and a manipulated scam. It is notable at p 2071 that the authors conclude:

“It is not normally dysfunctional to be highly motivated by very large incentives, to pay attention to symbols of authority, or to have a certain confidence in one’s own judgment. Scammers, we argue, seek to exploit such everyday heuristics. Any heuristic, and therefore any practical decision maker, is necessarily open to exploitation to some degree, because using heuristics means not considering all the evidence from every possible angle.”

(3) Item 8 of Appendix 5[15] relates to phishing attacks. The introduction to that article states: “…the extent to which it explains e-mail-based phishing remains unclear”.

(4) Item 14[16], an article relating to chronic fraud, states in its introductions: “The drivers behind chronic fraud have remained a mystery” and in its conclusion: “Better understanding of the domains of situational factors, triggers, motivations, and ability, which are highly individualized and vast, will require further attention from researchers, clinicians and policymakers.”

(c) Independence

17.Dr Cheng did not apply any single approach to his analysis but rather drew from common themes and created his own hypothesis, which suited the test results and facts at hand. This is a common mistake. A clear example of Dr Cheng’s lack of independence can be found at paragraph 45 where he states:

“In the present examination, the findings of validity tests reliably reveal that HB has been answering in a consistent, valid, reliable, compliant, and effortful way, and that there is neither a tendency of faking good or bad, nor any indication to achieve social desirability in his response style.”

These validity tests are not designed to assess the veracity of the defendant in respect of the facts of the alleged fraud. The tests are designed to assess whether he answered the test questions honestly without trying to suggest his personality was something other than it was. This is often referred to as ‘faking good’ or ‘faking bad’ and is intended to cover situations where the participant seeks to answer questions in a certain way in order to show they have or have not got a mental disorder. This test is not relevant in this situation, where the defendant has no identifiable disorder or other lack of capacity other than to show he has not tried to cover up a psychopathology.

18.The other tests carried out by Dr Cheng relate to personality characteristics not to the veracity or otherwise of the underlying facts relevant to the matter at hand. He has taken a tool designed for one specific purpose and prayed it in aid of his own view of the veracity of the defendant without the benefit of any other materials which could test the assertions made by the defendant. Dr Cheng is not in a position to make this assessment. Thereafter, and without more, Dr Cheng opines that: “After a careful comparison of the data provided by HB and the collateral evidence such as the data provided by the family members and his interaction with scammers emails, no significant discrepancies or inconsistencies are shown…” He appears to have accepted the facts as related to him by the defendant without question, has relied upon inadmissible hearsay in the form of comments by the defendant’s family and assumed the underlying emails are indeed a scam. Having only one version of events, the Court fails to see how there could have been any inconsistencies with such data or any discrepancies. In drawing these conclusions, Dr Cheng has inadvertently assumed that a) there was a scam and b) the defendant was a victim of it. Whether or not a scam existed is not within the remit of Dr Cheng to draw such a conclusion and he has no non-hearsay admissible evidence upon which to form a view if he were allowed to do so. Nor is it his remit to say whether the defendant was a victim. At best, Dr Cheng could opine as to whether the defendant possessed the characteristics which show he falls within a category of persons with a susceptibility to a scam of this type. In expressing the opinion above, Dr Cheng has over-stepped his remit before the Court.

(d) Are the facts relied upon admissible?

19.The interviews with, and data obtained from, the defendant’s family are clearly inadmissible hearsay, as are the Spanish version of the “Ten Item Personality Inventory (STIPI)” forms, which the family completed in respect of their assessment of the defendant. So too are the emails, which are not before the court as the evidence of truth save for those to which the defendant may give evidence as being the author. For the reasons identified above, this evidence is inadmissible and cannot be used to form the basis of Dr Cheng’s opinion, even if that opinion was otherwise admissible.

(e) The underlying premise

20.Having created his own over-arching hypothesis from the materials within Appendix 5, Dr Cheng applies the facts as related by the defendant to that hypothesis. For example, under the ‘Principle of Authority’ factor at paragraph 24, he stated:

“Such a presentation had led HB to believe that he was professional, knowledgeable and having the experience in dealing with the fund matter. In the interview he said “I had no experience and knowledge on the procedure of receiving a large sum of fund before. It made sense to me to follow his professional advice to visit the officials in other countries and to complete the necessary procedures.”

At paragraph 34 he states:

“HB’s high values on and hope for the support from the potential donors could motivate him for persistent email correspondence and reduce his cognitive efforts in assessing the validity of the message. This heuristic or superficial cognitive processing tends to neglect the need to check the authenticity of the emails and hence could increase his risk of falling for scams.”

21.The Court has been unable to find anything within the personality profiles of the defendant which supports this opinion in the sense that this is a particular susceptibility of the defendant and not of the vast majority of human beings. It must therefore be based upon something Dr Cheng was told, and which he accepted, from the defendant including the assertion that (a) this was a scam and (b) that previous emails were scams.

22.At paragraph 35 of his report, Dr Cheng appears to rely upon the finding of ‘conscientiousness’ to opine that the defendant was peculiarly susceptible to phishing scams. A phishing scam is carried out where a phisher “uses a semantic attack to get people to click on an innocuous hyperlink embedded in a message, clicking which, unbeknownst to the user, deploys malware and opens virtual backdoors into individual devices and computer networks.” This is not the case at hand and there is no such evidence of such a propensity before the court. It would appear that Dr Cheng is once more searching for material which supports his underlying premise that the defendant was susceptible to the scam and that what he had been told was true rather than seeking to identify the peculiar characteristics of the defendant which are particular to the deception at hand.

23.At paragraph 36, he goes on to opine that the defendant’s conscientious personality style was an important propellant for him to reply to emails when his NGO was in financial hardship. Thereafter he opines “such a behavioural pattern, actively responding to the scam emails, explained why he had been repeatedly falling for online fraud.” This arises from the premise that individuals who are conscientious (and the defendant is one) check emails and hyperlinks compared to the less conscientious who respond less frequently because these emails are discarded. He relies for this proposition once more on item 8 of Appendix 5 to his report, which concerns phishing and not the type of deception it is suggested occurred here. This tendency to rely upon non-peer reviewed work and to adopt an analysis of an article upon a singularly peculiar type of email fraud to a fraud where there has been a direct narrative approach to the victim and the victim simply responds to the narrative content of the email, is concerning, even without the disclaimer in the introduction to that article, which specifically states that the “underlying process by which habits lead to victimisation and the extent to which it explains email based phishing remains unclear”.

24.This tendency to rely upon non peer reviewed hypotheses in order to support his hypothesis to the facts as he deemed them to be was repeated at paragraphs 37 and 38. The former posits that the stronger the belief that you can detect malicious emails the more likely you are to be at risk of falling for it. The latter rehearses the defendant’s claims that he was able to differentiate between true and fraudulent emails. The opinion being because he was confident he would not be defrauded, he was more likely to be defrauded. That argument begs so many questions, it is difficult to know where to start, not least because it does not fit the defendant’s own case that he was very cautious throughout the events. The Court also notes that the article relied upon is not a body of science sufficient to be relied upon in court, it was a study of 1,018 people in Hong Kong and not Latin America and the authors accepted their findings were “novel”[17].

25.Paragraph 39 follows a similar pattern of identifying the trust or obedience to authority characteristics in different types of fraud. This is a characteristic evidenced throughout the literature which observes that we tend to give credence to those in authority such as doctors, lawyers etc. Dr Cheng relied upon the hearsay observations of the defendant’s family as to the defendant’s trust in authority and the fact that his score in respect of this scale was average. From that average score, i.e. that he was ‘rather trusting and obedient to authority’, Dr Cheng opines these anecdotal remarks and the score obtained are consistent with the defendant being compliant to the request of scammers even when the scammers made several changes. Even without the evidence from the family, this court would have expected a score in the high range before Dr Cheng ventured such an opinion.

26.Paragraphs 41 and 42 address the issue of past susceptibility to scams taken from the defendant’s instructions and the suggestion that chronic victims of fraud lead to repeated victimisation. Reliant upon his instructions alone, Dr Cheng found a correlation between the suggested behaviour in academic studies and that of the defendant, suggesting the defendant had the prerequisite cognitive bias to be a victim of fraud. He appears to have done so without relying upon any evidence other than the defendant’s instructions and inadmissible emails and has failed to identify what amounts to ‘chronic’ victimisation and whether the defendant fits that statistical criteria.

(c) What are the facts upon which the premise is based?

27.Dr Cheng relied upon the version of events provided to him by the defendant; the video recorded interview, two prosecution witness statements in respect of the controlled delivery; 569 pages of emails between 30 May 2018 and 7 October 2018; sample emails between HB and ‘various scammers’ from 2013 to 2018 amounting to 1,783 pages, psychological profiles completed by his wife and son, and tests conducted with the defendant. Notable within his report is the fact that he refers to the authors of all emails as ‘the scammers”. It would appear that he accepted as true that which he was told by the defendant and that which appeared in the emails. His report was clearly premised upon these facts and assumptions.

(d) Is that premise based upon admissible facts?

28.It should be remembered that the facts upon which an expert witness bases an opinion must of themselves be admissible e.g. not hearsay.[18] It is common sense that before the trier of fact can assess the value of an opinion it must first know the facts upon which it is based and those must necessarily be in themselves admissible. If an expert has been misinformed about the facts or has taken irrelevant facts into account or omitted to consider relevant facts, an opinion may be of no value. The onus is therefore upon the calling party to establish the value of the opinion it seeks to rely upon i.e. the premise upon which the opinion is based. The Court has already identified those parts of the report which are clearly hearsay and inadmissible as to evidence of their truth either for the purposes of personality testing or as facts. The past email correspondence has not as yet been adduced in trial and is not admissible as evidence of the truth. Stripping away the inadmissible evidence leaves the expert with the analysis of the psychological tests alone.

The Ultimate Issue

29.One of our rules of evidence is that opinion evidence should not, wherever possible, be given on the ultimate issue. That rule can be dated back to Frances, 4 Cox CC 57 (1849). However, it has since been accepted that in certain types of case and upon certain issues, it has become practice to allow such evidence[19]. But those occasions are well known, rare and not at point there. The legal position as to when an expert can testify upon the ultimate issue was summarised in HKSAR v Mo Sze Lung Thomson & Anor [2003] 2 HKC 356 per Stock JA (as he then was):

“…depends on the facts of the case; upon the expertise, whether that expertise is relevant to ‘the ultimate question’; whether the expert’s opinion on the ultimate question is a conclusion which depends upon his expertise or is proffered in some other capacity; and whether the court requires the assistance of an expert upon the ultimate question.”

30.The issue before the jury is whether the prosecution have proved that the defendant knew he was in possession of dangerous drugs. The issue sought to be addressed within the defendant’s expert report should be whether the defendant possessed the psychological characteristics to fall within a group of persons known to be susceptible to a deception of this type. It should not be whether there was, in fact, a deception or whether he was, in fact, a victim. Those are matters raised by the defence and for the jury to decide. Paragraph 53 of his report is therefore inadmissible.

EVIDENCE THROUGH THE BACK DOOR

31.Lastly, and as an aside, in R v Turner Lawton LJ noted that defence counsel sought “…to use a common forensic device to overcome objections to admissibility based upon hearsay”. In so doing the Court was referring to evidence of credibility and veracity. There is a difference between what is sought to be done by adducing the evidence of Dr Cheng and what is actually done. The report is not being tendered to suggest that the defendant suffered from any mental illness. Mr Kelly submits it is to show a susceptibility to fraud. But, by a side wind, it also suggests that he is a man of positive good character who is dedicated and conscientious but susceptible to internet scams. It supports his defence of lack of knowledge but also supports his veracity. Outside of the special area of confession evidence, it is not admissible for the defendant to adduce expert evidence as to his credibility[20]. Mr Kelly accepts that. Jurors do not need psychiatrists or psychologists to tell them how ordinary folks who are not suffering from any mental illness are likely to react to the stresses and strains of life nor whether someone is telling the truth or not. For that purpose it is inadmissible. The same reasoning applies to its suggested admissibility on the issue of the defendant’s credibility. The jury have to decide what reliance they can place upon the defendant’s evidence. He has to be judged as someone who is not mentally disordered. This is what juries are empanelled to do. The law assumes that they can perform their duties properly. The jury in this case do not need the evidence of a psychologist to help them decide whether the defendant's evidence is truthful.

CONCLUSION

32.This application is refused. It is not necessary for the jury to have assistance upon the issue of susceptibility to fraud and Dr Cheng is not qualified to do so.

Ms Cannise Chan, counsel on fiat, for HKSAR

Mr Shaun Kelly, instructed by Vidler & Co, assigned by Director of Legal Aid, for the defendant