HKSAR v. Tsim Sum-kit, Ada

CACC 153/2021, [2023] HKCA 408

On appeal from [2021] HKCFI 2518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 153 OF 2021

(ON APPEAL FROM HCCC NO 272 OF 2019)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.On 26 June 2018, the applicant, after a lunch with family members which she had arranged to discuss the division of her maternal grandmother’s estate, invited them to stroll at a nearby park to continue the discussion.  Suddenly and without warning, she produced a pistol and started shooting at them, killing two and wounding two others.  The only other member of the group was her brother, who was unharmed.

2.The applicant stood trial before M Poon J (as she then was) (the judge) and a jury on two counts of murder, contrary to Common Law and punishable under s.2 of the Offences against the Person Ordinance, Cap 212 (the Ordinance) (Counts 1 and 2), and two counts of shooting with intent, contrary s.17(b) of the Ordinance (Counts 3 and 4).  In contesting the case against her, the applicant relied on her mental condition at the time of the offences and the partial defence of diminished responsibility to the murder counts.

3.On 15 July 2021, the applicant was found guilty after trial of all counts.  She was sentenced to life imprisonment for the two counts of murder and 12 years’ imprisonment for each of the shooting counts, with 6 years of the sentence on Count 4 to run consecutively to the sentence on Count 3, making a total of 18 years’ imprisonment for the two shooting counts. The sentences were ordered to run concurrently.

4.The applicant applies for leave to appeal against conviction and sentence.  She was only granted legal aid for her appeal against conviction, and Mr Simon Young was assigned to represent her.  He advances two grounds of appeal against conviction.  Ground 1 contends that the legal burden on the applicant to prove diminished responsibility is unfair and infringes her right to a fair trial and the presumption of innocence, and that it should be read down to an evidential burden.  Ground 2 avers that the judge failed to give a full and proper lies direction.

5.In her homemade grounds of appeal against sentence, the applicant complains that the sentences for Counts 3 and 4 were manifestly excessive and wrong in principle.

Prosecution case

6.The prosecution case was that the applicant murdered her second aunt (Deceased 1), fourth uncle (Deceased 2), and shot her second uncle (Victim 1) and third aunt (Victim 2) with pre-meditation.  

7.The applicant was born in Tianjin, China, in 1973, where she lived with her parents and older brother[1].  After her mother moved to Hong Kong and became a permanent resident, the applicant joined her in about 1995.  Her father and brother followed soon after, and lived together in a public housing unit[2]. In 2005, her father passed away[3].

8.The applicant’s mother was the eldest of eight siblings[4], who variously lived in Hong Kong or Canada and were relatively successful.  In about 2013, the applicant’s mother became unwell.  So much so that she could not look after herself and she was put into the care of a home for the elderly[5].  It appears the applicant harboured some resentment towards her aunts and uncles because of her mother being placed in a home, even though they contributed to the cost and care for their older sister.

9.In 2015, the applicant’s mother died of pneumonia in hospital[6]. The applicant seemed to hold the hospital responsible for her mother’s death.

10.The applicant’s maternal grandmother died in 2011, leaving an estate mainly consisting of a flat in Quarry Bay.  There was an issue on the applicant’s part about the handling of her grandmother’s estate because in 2016, Deceased 2 found a website post by the applicant accusing him and his siblings of not sharing the grandmother’s estate with her mother.  This resulted in Deceased 2 arranging a meeting in the Quarry Bay Park.  In attendance were the applicant together with her brother, Deceased 1 and 2, and Victims 1 and 2.  When confronted over her website post, the applicant apologised to her family members for what she said and promised to delete it[7].

11.In 2017, Victim 1 drafted a “Family Agreement” regarding the disposal of the grandmother’s property.  Under the agreement, Victim 1 would buy the property for $8 million and would then share the proceeds equally amongst the eight siblings.  The applicant’s mother’s share would be given equally to the applicant and her brother.  The Family Agreement was finalised in April 2018[8].

12.On 15 June 2018, the family members arranged a luncheon meeting at the Graces Restaurant in Kornhill Plaza.  Victim 2 was unable to attend the meeting, and for some reason, the applicant did not show up[9]. 

13.On 23 June 2018, the applicant sent a message to the Family WhatsApp Group that she felt sorry that she did not attend the meeting and told them that she would like to meet up with them to thank them personally for the care they showed her mother.  She said she needed to thank them in person because it was difficult for her to express her thoughts via WhatsApp.  She hoped they could come to the meeting because she may not have the chance to thank them in the future[10].

14.On 26 June 2018, the family members attended the Graces Restaurant at about 10 am.  Soon after, the applicant sent a message to the Family WhatsApp Group, seeking to change the venue to another restaurant with a room.  But they refused, and the applicant therefore agreed to meet them at the Graces Restaurant as previously arranged[11].  The applicant, her brother, Deceased 1 and 2, and Victims 1 and 2 were in attendance at the luncheon.  At about 1 pm, the lunch finished, but the applicant requested that they talk further.  They went to Quarry Bay Park and got there at about 1.25 pm.  Victim 1 asked the applicant what she thought about the Family Agreement, and she said she needed time to think about it[12].

15.At about 3 pm, the applicant still did not say anything about the Family Agreement, and the family members said they wanted to leave.  They told the applicant to take her time to think about it and go home, adding that there was no rush to dispose of the estate.  However, the applicant again asked for more time[13]. After a short while, the applicant suddenly took out a 0.25 calibre pistol and fired four shots at close range at her family members.  She shot Deceased 2 first with a single bullet to the lower back of his head and next Deceased 1 with a single bullet to his left forehead.  She then fired a single bullet at Victim 1, hitting his left upper arm, and a single bullet at Victim 2, who suffered two graze wounds to her left shoulder[14]. The applicant did not fire at her brother, although he was scared.

16.The applicant then ran to Cityplaza Four with the pistol.  A passer-by pursued her and she was eventually subdued by security guards in Cityplaza.  Police arrived at about 3.13 pm and seized from the applicant a pistol loaded with 5 bullets and a box of 41 bullets, all capable of being discharged[15]. The applicant had no licence to possess firearms and ammunition in Hong Kong[16]. 

17.Upon arrest, the applicant said, “Those are my family.  There had been some enmity previously, so [I] shot them.”[17]  Subsequently, in a post-recorded statement, the applicant said, “I wasn’t talking about enmity, I was talking about dispute.”[18]

Defence case

18.The applicant elected not to testify at trial, and the defence put forward was that the applicant’s mental capacity at the material time was diminished, causing her to be unable to form the necessary intent in committing the offences.

19.From the evidence of the prosecution witnesses, the defence suggested that the applicant’s conduct and behaviour before and after the shooting indicated her abnormality of mind.  It was said by Victims 1 and 2 that the applicant’s behaviour was strange at times.  Victim 2 said that during the lunch, the applicant sometimes kept her head lowered and mumbled to herself[19]. At the park, the applicant paced up and down and lowered her head as if talking to herself[20].  There were even moments of sudden mood change from self-muttering to socialising normally to discuss martial arts and self-defence[21] which defence counsel suggested was a sign of an abnormality of mind. 

20.The applicant’s brother testified that the applicant had suffered from anxiety and depression during her late teens. Having moved to Hong Kong in 2002, she exhibited “a strong sense of negativity” and was distraught when their mother passed away[22].  The applicant blamed herself for being unable to care for her mother and subsequently started to accuse the treating doctor of having killed her mother[23].  The defence also highlighted the fact that the applicant had created a website, accusing her family members of causing her mother’s death and defrauding her mother of an interest in her grandmother’s estate.  Apart from writing WhatsApp messages to her family members, the applicant wrote 138 messages to herself between 30 July 2016 and 26 June 2018[24], revealing that she was preoccupied with unsubstantiated conspiracy theories and imagining untrue things[25].

Expert evidence

21.At the trial, experts were engaged to give an opinion on the applicant’s mental condition.  Dr Wong Yee-him (Dr Wong), a psychiatrist engaged by the defence, produced a medical report and testified.  He interviewed the applicant for three hours just before the trial on 21 May 2021.  It was explained to the judge by Mr Edwin Choy, SC, who represented the applicant at trial, that the reason for the late consultation was that the previous expert, who had visited the applicant for an extended period of time, produced a report that “may compromise the interests of my client”[26]. 

22.Dr Wong said that his opinion was based on what the applicant told him and he was not able to verify how reliable the information he received was.  In his report, he noted the applicant’s background and circumstances, including that she worked as a bodyguard and had training in firearms.  However, she had not revealed the details of her training or where she acquired the pistol[27]. He stated that the material placed before him was suggestive of three diagnostic possibilities, (i) Major Depressive Disorder (MDD); (ii) schizophrenia; and (iii) methamphetamine intoxication. 

23.Dr Wong explained that for a diagnosis of MDD, all five diagnostic criteria (A) to (E) under DSM-V needed to be fulfilled whilst the applicant failed to meet criteria (B) and (C)[28].  He explained that even assuming the applicant had MDD, it would only be “mild” with at most a mild or insignificant impairment in functioning[29]. He expressed the opinion that such mild MDD was unlikely to substantially impair the applicant’s mental responsibility[30].

24.Regarding the other two initial diagnostic possibilities, Dr Wong concluded that the applicant did not suffer from schizophrenia[31] and based on the applicant’s account, she was suffering from methamphetamine intoxication at the time of the offence.  However, in his view, the applicant’s use of methamphetamine was not induced by illness but voluntary[32].  He concluded that there was no sign that the applicant had any impairment in orientation, concentration and memory before the commission of the offences and he did not think her ability to understand at the material time was impaired substantially by her Stimulant Intoxication[33].

25.The prosecution called Dr Lui Sing-heung (Dr Lui), who had prepared three medical reports.  Dr Lui first examined the applicant on 3 July 2018 and after that every two to four weeks until 10 August 2020 in over 70 interviews.  Having examined the applicant extensively, Dr Lui concluded that the applicant was not suffering from a disease of the mind and was in control of her mental faculties at the time.

Appeal against conviction

Ground 1: the legal burden to prove diminished responsibility

26.In her summing-up to the jury, the judge directed that it was for the applicant to prove her diminished responsibility on a balance of probabilities if liability was to be reduced from murder to manslaughter.  As accepted before us, this was in accordance with the common law interpretation of s.3(2) of the Homicide Ordinance, Cap 339.

27.Section 3 of the Homicide Ordinance reads:

“(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.

(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.

(3) A person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

(4) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder shall not affect the question whether the killing amounted to murder in the case of any other party to it.”

28.Section 3(2) is identical to s.2(2) of the Homicide Act 1957.  In England and Wales, the definition of diminished responsibility has changed by reason of the Coroners and Justice Act 2009 but subsequent case law is still relevant in this jurisdiction on certain aspects, including the reverse burden of proof which has not changed.

29.Mr Young argued that the legal burden on the applicant to prove diminished responsibility was an unfair and unjustified derogation of the presumption of innocence under Article 11(1) of the Hong Kong Bill of Rights (BOR 11(1))[34] and Article 87(2) of the Basic Law (BL 87(2))[35].  He submitted that the applicant should only have an evidential burden to raise the issue, and once that was done, the prosecution would disprove one of the three constituent elements of diminished responsibility beyond a reasonable doubt to sustain a murder conviction. 

30.Mr Young noted that this point of law had not been taken in the court below but could nevertheless be considered on appeal.  In fact, Senior Counsel for the applicant at trial not only did not take the point but stated the legal principle in emphatic terms, acknowledging that the burden was on the applicant on a balance of probabilities.  He told the jury in his closing speech[36]:

“… Diminished responsibility is a matter that we as the defence have to prove, yet we do not have to prove to the very, very high standard of beyond reasonable doubt. We don’t have to do that. All we need to do is to convince you that it is more likely than not that all the elements of this defence are present, and we say they do.”

31.Mr Young also noted that other common law jurisdictions, particularly the United Kingdom, have considered the issue he has raised concerning their similar law, which they have rejected.  Whilst he noted there were numerous authorities against his contention, he did not address them in his written submission.  Instead, he merely stated that these overseas cases were of limited assistance because of Hong Kong’s distinct and rigorous approach to the constitutional review of reverse burdens.  Nor did he address the Hong Kong authorities against his contention of HKSAR v Nancy Ann Kissel[37] and HKSAR v Wong Man Yi Mandy[38], in which the Court of Appeal said that the reverse burden for the defences of “insanity” or “diminished responsibility” satisfied the proportionality test.

32.At the hearing of this appeal, Mr Young accepted that the authorities both here and overseas were against his contention, and there was no authority in any jurisdiction which had read down the equivalent of the diminished responsibility provision from a legal burden to an evidential burden.

The overseas cases

33.In his oral submission, Mr Young submitted three points as to why the overseas cases were of limited assistance.

34.The first point was that the overseas cases take “a narrow” approach to derogation, primarily examining whether the reverse burden was an element of the offence and characterising diminished responsibility as “an exceptional excuse defence”, concluding that there was no derogation.  No detailed analysis was provided on how the overseas cases take a different approach except by way of general commentary.  He also submitted that the overseas cases tended to assimilate insanity with diminished responsibility and treat them as the same when there were important differences between them, such as the nature of the defence and the verdict and outcome if an accused had been successfully prosecuted.  He emphasised the different nature of these two defences, pointing out that “insanity” was a claim of no responsibility due to total incapacity; while “diminished responsibility” was a claim of diminished responsibility due to substantial impairment of capacity.  We observe at this juncture that the differences between these defences have always been acknowledged, which is evident in the overseas cases.  It is mainly what they have in common that has led them to be considered together in this context; namely they depend on the highly personal condition of the accused and the internal functioning of his or her mental processes.

35.The second point is that the overseas cases strongly emphasised two policy considerations when addressing the question of justification (or the proportionality test).  The first is that the accused is in the best position to address the issue of diminished responsibility because it is a matter personal to him or her.  The second is the difficulty on the prosecution in disproving diminished responsibility, particularly if the accused does not cooperate with a government psychiatrist.  Mr Young argued that these two policy considerations do not apply in the same way in this jurisdiction because the Hong Kong principles regarding reverse burdens take “a more structured approach”, asking what is the legitimate aim of the provision and then considering whether the legal burden is necessary to achieve that legitimate aim and whether an evidential burden can do the same.  He contended that this is the focus of attention in the Hong Kong approach.  At the same time, the overseas cases did not identify the legitimate aim of the provision when considering a reverse burden. 

36.We are not persuaded that these policy considerations would be of little or no significance in this jurisdiction or that they would be treated differently in some way because of “a more structured approach”. Quite the contrary, we consider they are important and valid considerations in determining whether a reverse burden is proportionate and justified.  Had Mr Young addressed the overseas cases in his submission, it would have been apparent that the overseas cases do indeed examine the aim and purpose of the reverse burden.  It is not without significance that the Hong Kong principles regarding reverse burdens are principally founded on overseas authorities.  See Leung Kwok Hung and Others v HKSAR [39]; HKSAR v Lam Kwong Wai and Another [40]; HKSAR v Hung Chan Wa [41]; HKSAR v Ng Po On [42].

37.Mr Young contended that the legitimate aim of s.3(2) was to ensure the court had a sufficient body of evidence for the proper and just determination of the defence of diminished responsibility.  He submitted that an evidential burden served the purpose, and this analysis was lacking in the overseas cases.  We disagree.  It is apparent from the overseas cases that they address justification of the legal burden in consideration of the fundamental rule that the prosecution has the burden of proving beyond reasonable doubt the accused’s guilt of the offence charged.

38.Although it was not addressed by Mr Young, it is relevant to note the distinction between an evidential burden and a legal burden.  As stated by Ribeiro PJ in HKSAR v Ng Po On [43], a legal burden requires the accused to prove on a balance of probabilities “an ultimate fact which is necessary to the determination of his guilt or innocence”, while an evidential burden “does not require the accused to establish anything as a matter of proof” and arises where an accused wishes to put in issue some matter that is potentially exculpatory and there is sufficiently substantial evidence to support it, raising a reasonable doubt as to the accused’s guilt.  This distinction between the burdens is important when considering the partial defence of diminished responsibility.

39.The third and main point argued by Mr Young was that any question of justification for the imposition of a legal burden needed to be applied to the specific circumstances of the jurisdiction in question and none of the overseas cases took into account “the reality and actual situation of Hong Kong”.  With respect, this is an extremely weak point.  It rests on the proposition that Hong Kong is different from other common law jurisdictions in dealing with persons accused of murder who claim they were mentally affected at the time. 

40.In support of this point, Mr Young contended that the incarceration of an accused for murder in a psychiatric centre creates an “imbalance of advantage”, and there is no need to impose a legal burden because an evidential burden would suffice in the circumstances.  We found his contention was mainly based on hypothetical suppositions and personal opinions.  However, the fact is that the overseas cases addressed the same fundamental issues that arise in Hong Kong regarding diminished responsibility, and the legal reasoning in those cases is therefore compelling.

41.The overall thrust of Mr Young’s submission is that in Hong Kong, a “more structured” approach is taken when determining the validity of a reverse burden which differs from the approach taken in overseas jurisdictions, particularly in the United Kingdom.  He contended that the Hong Kong principles on reverse burdens would read down the legal burden in diminished responsibility to an evidential burden.  However, the fact is that the Hong Kong authorities cite with approval overseas judgments that address the principles applicable to reverse burdens.  The difference between those principles and Hong Kong principles is, at best, a difference in form rather than in substance.

The principles on reverse burdens

42.We should refer to the principles on reverse burdens, which were conveniently summarised by the Court of Appeal in HKSAR v Gurung Krishna[44] as follows:

“29. In the context of reverse onus provisions, the fundamental principles have been articulated in a number of the decisions of the Court of Final Appeal, most particularly in HKSAR v Lam Kwong Wai[45] and HKSAR v Ng Po On:[46]

(a) Although in any event a central rule of common law, the presumption of innocence enjoys constitutional protection by reason of art.87 of the Basic Law and by art.14(2) of the International Covenant on Civil and Political Rights (ICCPR), applied by art.39 of the Basic Law.

(b) A corollary of the presumption is the burden upon the prosecution of proving beyond reasonable doubt the defendant’s guilt of the offence charged, which means that the law ‘does not (in the absence of statutory intervention) impose any persuasive burden on the accused, but places the burden throughout on the prosecution to prove the ingredients of the offence and to negative any defence raised by the accused beyond reasonable doubt.’[47]

(c) Where a statute reverses the burden of proof, requiring the accused to prove an ultimate fact which is necessary to the determination of his guilt or innocence, he is required to satisfy that burden on the balance of probabilities.[48]

(d) A reverse onus is prima facie objectionable and in any event inconsistent with the presumption of innocence, ‘because it allows the defendant to be convicted on failing to discharge the reverse onus, even though the prosecution fails to prove all the elements of the offence beyond reasonable doubt’:[49]

A defendant may in other words be convicted even though there is a reasonable doubt as to his guilt of the offence charged or as to his entitlement to rely on an applicable defence, on the ground that he has not persuaded the tribunal of fact that the evidence he relies on in respect of the relevant ultimate fact is probably true. Indeed, a reverse burden requires the defendant to be convicted even if his version of the facts is considered equally likely to be right as to be wrong.[50]

(e) A burden which requires an accused to prove that it is more likely than not that his version of a fact necessary for the determination of guilt or innocence is true is categorised as a persuasive burden, which is to be contrasted with an evidential burden; the latter does not require the accused to establish anything as a matter of proof but:

… arises where the defendant wishes to put in issue some matter that is potentially exculpatory whilst the prosecution continues to bear the persuasive burden throughout. In such cases, there must be evidence supporting such exculpatory matter which is sufficiently substantial that it raises a reasonable doubt as to the defendant's guilt … If … the accused fails to adduce or point to any evidence on the relevant issue or if the evidence adduced is rejected or is not sufficiently substantial to raise a reasonable doubt, the potentially exculpatory matter places no obstacle in the way of the prosecution proving its case beyond reasonable doubt. An evidential burden, functioning in this manner, is wholly consistent with the presumption of innocence.[51]

(f) The constitutional protection accorded to the presumption of innocence is not absolute. Derogation from it may be justified if the derogation:

(i) Has a legitimate aim;

(ii) Is rationally connected with the pursuit of that aim; and

(iii) Is no more than necessary for the achievement of that aim.[52]

(g) The burden of justifying the derogation is on the state.

(h) The burden of justification is a substantial one and for a reverse onus to be acceptable ‘there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence.’[53] The more serious the punishment upon conviction the more compelling must be the reason.[54]

(i) It is incumbent upon the court to give weight to the Legislature's view that the imposition of a reverse onus is an appropriate response to the problem addressed in the statute.[55] That said:

The weight to be accorded to the legislative judgment by the Court will vary from case to case depending upon the nature of the problem, whether the executive and the Legislature are better equipped than the courts to understand its ramifications and the means of dealing with it. In matters of serious crime, the courts must recognise that the legislature has the responsibility for determining policy and framing the elements of the criminal offence.[56]

There may, however, be cases where the issue turns on matters of proof, onus and evidence in which realm the court may be in as good a position as the legislature to form a judgment:

It is for the Court to exercise its constitutional responsibility by determining the issue, after giving appropriate respect to the legislative judgment. At the end of the day, to repeat the words of Lord Nicholls of Birkenhead in R v Johnstone [2003] 1 WLR 1736, 1750F-G:

The court will reach a different conclusion from the legislature only when it is apparent the legislature has attached insufficient importance to the fundamental right of an individual to be presumed innocent until proved guilty.[57]”

43.In addition to the three steps laid out above, there is a fourth, stipulated in Hysan Development Co Ltd v Town Planning Board [58], which balances societal and individual interests against each other.

The lack of justification

44.Mr Young submitted that s.3(2) derogates from the presumption of innocence.  He advanced his argument by emphasising that the underlying policy of the law is that a person with diminished responsibility should not be liable for murder: R v Dietschmann[59].  Mr Young contended that under the current legal regime, there is a real risk in a person being convicted of murder even though there is a reasonable doubt as to his or her diminished responsibility, for example, where psychiatric evidence is in conflict.  He argued that the prosecution has a substantial burden to justify the derogation and that the justification must be “compelling”[60].  He submitted that since a person who acts with substantial impairment of mental responsibility due to an abnormality of the mind is less blameworthy in homicide and that a conviction for the offence of murder will result in mandatory life imprisonment, these are strong reasons for why there should be no interference with the presumption.

45.Mr Young noted that s.3(2) has a legitimate aim of ensuring the court has a sufficient body of evidence for the proper and just determination of the issue.  He acknowledged that the aim is legitimate because diminished responsibility concerns the defendant’s mental condition, evidence of which is not always readily available to the prosecution or observable by lay witnesses.  He also acknowledged that s.3(2) is rationally connected to this legitimate aim because the reverse onus incentivises the defence to obtain and proffer medical and other evidence of the defendant’s mental condition at the material time.  This would assist in ensuring the court has a full body of evidence to determine the issue justly.  He stressed, however, that imposing a legal burden of proof was not necessary.  He argued that the difficulty of proof for the prosecution of the defendant’s peculiar knowledge of the matter did not per se justify the reverse burden.  To achieve the legitimate aim, an evidential burden on the defendant would be no less effective than a legal burden as it is not something nominal or illusory, which has to be discharged with credible evidence.

46.To substantiate his argument, Mr Young used the present case as an example.  He submitted that when the applicant was detained at Siu Lam Psychiatric Centre, she was subject to constant surveillance and regular consultation with government psychiatrists and clinical psychologists. He argued that a privately retained psychiatrist for the defence if funded by the Legal Aid Department, would have limited opportunity to interview the applicant for a considerable period after the material event[61].  He suggested that the government psychiatrist would enjoy advantages in the assessment of the applicant’s mental condition, such as the timely opportunity to assess, high frequency of meetings over a long period, greater opportunity to assess the reliability of the applicant and access to the medical records detailing daily observations.  On the other hand, a defence psychiatrist could only hold a limited number of meetings some months or years after the material event, and there is no access to medical records. 

47.Mr Young contended that because of this “imbalance of advantage” there was no need to impose a legal burden on the defendant as an evidential burden would suffice to ensure a sufficient body of evidence for a just determination of the issue.  He submitted that the legal burden coupled with the “imbalance of advantage” that government psychiatrists have over defence psychiatrists results in an unacceptably harsh burden on the individual.

48.The remedial interpretation suggested by Mr Young was to read down the word “prove” in s.3(2) as imposing an evidential burden only.  He argued that it would alleviate the harsh burden on the individual and serve to unify the law, making the evidential burden the common standard for typical defences to murder.

The respondent’s submission

49.Mr William Tam, SC, with him Mr Michael Ma, for the respondent, submitted that it has long been the settled law of Hong Kong that a defendant bears the burden to prove diminished responsibility on the balance of probabilities[62]. He submitted the applicant’s argument that a legal burden was “not necessary” and an evidential burden would be sufficient was soundly contradicted by a line of authorities that have considered and consistently approved the reverse onus for diminished responsibility. 

50.In England and Wales, the same constitutional challenge on diminished responsibility has been repeatedly argued before, and consistently rejected by the English Court of Appeal in three leading cases: R v Lambert, Ali and Jordan[63]; R v Foye[64]; and R v Wilcocks[65]. He noted that these authorities remain good law and also represent the position in Hong Kong.  In HKSAR v Wong Man-yi Mandy[66], the Court of Appeal held that the analysis in R v Foye was highly instructive and that the legal burden on the defendant to prove insanity was upheld.

51.Mr Tam has also referred to overseas jurisprudence other than England and Wales.  He pointed out that although New Zealand and Canada do not recognize the defence of diminished responsibility, both jurisdictions uphold the legal burden on the defendant to prove insanity: R v Cottle[67]; R v Chaulk[68]. He submitted that the approach applied to the defence of insanity, as explained in these authorities, should also be applied to the defence of diminished responsibility where similar considerations are involved.

52.In response to the applicant’s contention that there is an “imbalance of advantage” between the government and privately engaged psychiatrists in the assessment of a defendant, Mr Tam made the following points.  First, a defendant is not required to submit to a medical examination and in the case of an uncooperative defendant, government psychiatrists have no advantage over privately engaged psychiatrists.  Secondly, the defendant’s medical records and psychiatric reports are always available and disclosable to the defence psychiatrist, who can also visit the detention facility to interview the defendant personally.  Thirdly, the so-called “imbalance of advantage” is contradicted by the fact that the prosecution is under the duty of disclosure to the defence, whilst the defence does not owe the same duty and can selectively adduce reports in its favour without disclosing reports against its case.  Fourthly, the applicant’s contention wrongly assumed that government psychiatrists were partial to the prosecution.  Government psychiatrists are bound to observe the code of conduct like any privately engaged psychiatrists.  There were numerous occasions in the past when government psychiatrists have supported the defence of diminished responsibility after an independent assessment.  As noted by Mr Tam, there is no property in a witness, and a government psychiatrist can always be called to assist the defence if thought appropriate, which has happened on numerous occasions in the past[69].

Discussion

53.Section 3(2) provides that it shall be for the defence to prove that a person is not liable to be convicted of murder under the section.  Immediately following in s.3(3) it is provided that if diminished responsibility is proven, the defendant is to be convicted not of murder but of manslaughter.  The authorities have read s.3(2) as imposing on a defendant a burden of proof on the balance of probabilities.  The right that is said to be engaged is the right that everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.

54.A fundamental scripture of criminal law is that the burden of proof rests on the prosecution.  It is for the prosecution to prove beyond reasonable doubt that the accused committed the crime.  As a general rule, the accused has to prove nothing.  The partial defence of diminished responsibility to a charge of murder is an exception to that rule. The burden of proof is on the accused to prove, on the balance of probabilities, the elements of the defence.  It is not proof that he is innocent, but rather that his responsibility for the killing was diminished by reason of an abnormality of the mind.  The prosecution still has to prove beyond reasonable doubt the actus reus and mens rea for the offence of murder.

55.The partial defence of diminished responsibility originally developed as part of the common law of Scotland[70].  It was later adopted into English law by s.2 of the Homicide Act 1957.  After the enactment of the Human Rights Act 1998, a series of challenges were mounted in the United Kingdom on the basis that the imposition of a legal or persuasive burden of proof on the defence in a criminal trial constituted an infringement of the presumption of innocence under Article 6(2) of the European Convention on Human Rights (ECHR 6(2))[71].

56.In R v Lambert, Ali and Jordon, the English Court of Appeal heard three cases on the issue of whether the reverse onus in question was incompatible with the presumption of innocence.  R v Lambert concerned the reverse onus on a defendant in possession of drugs to prove that he neither knew nor had reason to suspect that the substance was a controlled drug.  R v Ali and R v Jordon concerned the reverse onus on a defendant in relation to the defence of diminished responsibility by s.2. 

57.The Court applied the test in Salabaiku v France[72] to determine whether the reverse burden was justified with the key consideration being that states should confine reverse onus provisions “within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.”[73]  The Court also endorsed the comments of Lord Hope of Craighead in R v Director of Public Prosecutions, Ex p Kebilene [74], who pointed out that account may be legitimately taken, in striking the right balance, of the problem the legislation was designed to address, adding, “As a matter of general principle therefore a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual …”[75]. 

58.The Court considered that, in analysing the validity of a reverse onus on the defence, it was important to start with the structure of the offence.  A relevant factor in determining whether it is justified is whether the reverse onus provision applies directly to an element of the offence or to an exception or excuse:

“16. … If the defendant is being required to prove an essential element of the offence this will be more difficult to justify. If, however, what the defendant is required to do is establish a special defence or exception this will be less objectionable. The extent of the inroad on the general principle is also important.”

59.The Court also observed that ECHR 6(2) was specifically directed to the application of the presumption of innocence of the actual offence charged[76]. On the issue of diminished responsibility, the Court held that s.2 had not altered the ingredients of the offence of murder.  It noted that the change brought about by it was the creation of a benefit to the defendant who was in a position to take advantage of it.  It was irrelevant whether it was treated as creating a defence to a charge of murder or as dealing with the capacity to commit the offence.  An accused who did not seek to rely on the section did not have to prove anything.  The policy considerations said to justify the rule were the difficulty it would create for the prosecution if it had to prove a negative and the fact that there was no obligation on the defendant to submit to an appropriate examination[77].

60.Significantly, leave to appeal to the House of Lords was refused in R v Ali and R v Jordon, but granted in R v Lambert, which concerned the reverse burden on a defendant in an offence for possession of dangerous drugs.

61.It is appropriate to note that in R v Lambert [78] the majority of the House of Lords took the view that to read the section as imposing more than an evidential burden on the defence would amount to an infringement of the presumption of innocence because of the possibility that an accused could be convicted even though the jury might have thought the defence was likely to be true.  Lord Steyn questioned the focus on the structure of the relevant provision.  He said:

“[35] … The distinction between constituent elements of the crime and defensive issues will sometimes be unprincipled and arbitrary. After all, it is sometimes simply a matter of which drafting technique is adopted: a true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.”

62.Over a decade later, the English Court of Appeal was again asked to address the question of a legal burden for the defence of diminished responsibility in R v Foye, which was rejected after a thorough analysis by Lord Hughes of Ombersley, giving the judgment of the Court.  He said that very clear justification for the legal burden in the English equivalent provision lay in the following factors[79]:

“i) Diminished responsibility is an exceptional defence available in an appropriate case with a view to avoiding the mandatory sentence that would otherwise apply, so that a discretionary sentence could be imposed, tailored to the circumstances of the individual case.

ii) Diminished responsibility depended on the highly personal condition of the defendant himself, indeed on the internal functioning of his mental processes.

iii) A wholly impractical position would arise if the prosecution had to bear the onus of disproving diminished responsibility whenever it was raised on the evidence; that would lead not to a fair, but to a potentially unfair trial.”

63.Lord Hughes noted that the test in Salabiaku v France [80] necessarily involved the proposition that the mere fact that national legislatures enacted the reverse onus could not by itself mean that it was proportionate and justified, but he considered that it was not a factor without significance [81].  He emphasised that the reverse onus had to be justified and applied the principled approach of Lord Bingham in the Sheldrake v DPP [82], who, in the following remarks, identified some of the common factors which would be relevant to whether a reverse onus was justified[83]:

“The overriding concern is that a trial should be fair and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary … The substance and effect of any presumption adverse to a defendant must be examined and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in application of the presumption, retention of the ability of the court to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption … The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb but on examination of all the facts and circumstances of the particular provision as applied in the particular case.”

64.In addressing the issue, Lord Hughes said that, in principle, two questions arose.  The first was whether the provision encroached upon the presumption of innocence.  If it did, the second was whether it was a proportionate and justified modification of it.  If it was not, then the issue arose whether it was feasible to read down the provision to impose only an evidential burden on the defendant.  He noted that the two questions were frequently addressed together and that there was overlap between them because of the extent to which the onus relates to a component of the offence, or to an exception or recognised excuse for it[84].  There is clearly overlap in determining whether the right has been infringed and justification for it if it has been infringed.  This will be apparent in the analysis of the issue.

65.In response to Lord Steyn’s observations in R v Lambert, Lord Hughes accepted the proposition that the distinction between an element of the offence and an exception or excuse could be difficult to discern and may depend on the grammatical form which the framers of the penal provision have elected to use.  He also made the point that even where it can be discerned, it does not universally provide an answer to the question whether the reverse onus provision is justified and that further enquiry into justification would be needed.  He emphasised that a relevant factor in determining whether it is justified will be whether the reverse onus provision applies directly to an element of the offence or to an exception or excuse.  He also endorsed the comments in R v Lambert, Ali and Jordan and R v McQuade[85] that it is less difficult to justify a burden on the defendant, where he has raised an entitlement to a statutory defence, to prove entitlement to that defence than it is to support a requirement that a defendant discharge an onus of proof in relation to an element of the offence[86].

66.He held that distinction was apparent with the defence of diminished responsibility.  The provision did not require an accused to disprove an element of the offence but to establish an exception or excuse, and had no bearing on the requirement that the prosecution must prove an unlawful killing with the intention to kill or cause grievous bodily harm.  The defence of diminished responsibility did not arise until the jury was sure the accused had committed an unlawful killing with the requisite intent.  Hence, there was no infringement of the presumption of innocence[87].

67.A further attempt was made to challenge the constitutional validity of the legal burden of proof in respect of diminished responsibility in R v Wilcocks.  In rejecting the challenge, Hallet LJ (as she then was), giving the judgment of the Court, held:

“36. We are satisfied, as the court in R v Foye was satisfied, that there is nothing arbitrary or unreasonable about the legal burden (to the civil standard of proof) being placed on a defendant who wishes to assert the partial defence of diminished responsibility. He is not required in any way to prove the elements of the offence of murder.”

68.We were taken to the decision of the Canadian Supreme Court in R v Chaulk which was concerned with the defence of insanity.  The provision dealing with insanity prohibits the conviction of a person in respect of an act or omission committed while that person was insane, but also provides that every person shall, “until the contrary is proved”, be presumed to be and to have been sane.  It was argued that this phrase be interpreted as placing an evidential burden on the accused rather than a legal one.  The Court found that the reverse onus did infringe the presumption of innocence since insanity could negative mens rea.  The Court went on to hold that the infringement was justifiable because without it the prosecution would be “encumbered with an unworkable burden”[88].

69.As for the defence of diminished responsibility, the legislative provision does not require an accused to negative an element of the offence (mens rea), but to establish an exception or excuse, while the prosecution must prove an unlawful killing with the requisite intent.

70.A very comprehensive overview of the cases that address the burden on the defence to prove diminished responsibility is found in the principal judgment of O’Malley J in The People (Director of Public Prosecutions) v Heffernan[89], with whom the other judges of the Irish Supreme Court agreed.  After his review of the authorities, which included an analysis of the Canadian case of R v Chaulk, O’Malley J held that[90]:

“The successful raising of the defence of diminished responsibility does not depend on negation of any element of the prosecution case, nor on proving any essential element of the offence. The long established elements of murder remain as they were, and are for the prosecution to prove beyond reasonable doubt.”

71.He went on to say that evidence of a mental disorder sufficient to qualify under this defence [91]:

“… does not in itself rebut either the common law presumption of sanity and responsibility for actions, or the statutory presumption that the accused person intended the natural probable consequences of his or her actions. It creates a new, mitigatory defence that reduces the consequences of a proven offence. It is therefore incorrect to suggest that the imposition of a burden of proof could require an accused to prove either the actus reus or the mens rea, since these are matters that must be proven by the prosecution beyond reasonable doubt before the question of diminished responsibility can arise.”

72.O’Malley J concluded that the legal burden on an accused to prove the partial defence of diminished responsibility did not affect the presumption of innocence[92], which he explained was influenced by the following policy consideration[93]: 

“… the policy factors that justify the same onus of proof as in the case of insanity are also clear. The same difficulties that the prosecution would face in proving beyond reasonable doubt that an accused is sane would arise in an attempt to prove that the responsibility of the accused was not diminished by reason of mental disorder. If the prosecution bore such a burden it would have to prove this positively - inviting the jury to reject dubious evidence from the defence would not suffice. The problem stems from the intrinsically subjective nature of the defence; from the fact that mental disorders and their effects are not necessarily the subject of ordinary life experience or knowledge and will generally require some level of expert assistance to the jury or court; and from the fact that an accused cannot be compelled to participate in any form of medical examination by the prosecution. For those reasons the defence of insanity has always imposed a burden of proof on the accused. The same considerations arise with diminished responsibility.”

73.The above policy consideration was discussed by Professor Andrew Ashworth in his commentary to Lord Hughes’s judgment in R v Foye.  He questioned the term “what is at stake” of the test in Salabiaku v France for a reverse burden.  However, that test should be read together with the remarks of Lord Bingham in Sheldrake and other cases that have since addressed the issue overseas and here.  He also questioned the proposition that diminished responsibility is closely analogous to insanity.  Other cases have also addressed this matter and it is clear that these defences have in common the issue of whether a person is suffering from an abnormality of mind at the time of the offence. 

74.Professor Ashworth accepted that there was “widespread agreement” with the third point made by Lord Hughes that “a wholly impractical position would arise if the Crown had to bear the onus of disproving diminished responsibility”, and that the reverse burden was justified on a wholly pragmatic ground.

75.In our judgment, the legal burden imposed by s.3(2) does not violate the presumption of innocence under BOR11(1).  The authorities that we have reviewed have thoroughly analysed the issue and have all firmly concluded that a legal burden is justified upon the defence of diminished responsibility.  As explained by Lord Hughes in R v Foye there is a distinction between a reverse onus “as to an element of the offence”, which is more difficult to justify, and a reverse onus “as to an exceptional excuse”, which is less difficult to justify.  Diminished responsibility falls within the latter category since it is “an extenuating circumstance and it has effect as modifying the character of the crime, or as justifying a modification of sentence, or both”.  Since the reverse onus does not require the defendant to disprove an element of the offence but to establish an exception or excuse, the burden on the defendant does not impact the presumption of innocence[94].

76.It was universally accepted by the courts of other common law jurisdictions that a principal consideration for the justification of a legal burden was the practical difficulties that would arise from requiring the prosecution to prove that an accused who raises the issue of mental abnormality does not suffer from such a condition.  The difficulty in proving a negative would make it extremely difficult for the prosecution to negate the defence of diminished responsibility even though it has proved the elements of the offence of murder beyond a reasonable doubt.  This was succinctly explained by the Court of Appeal of Northern Ireland in R v McQuade[95]:

“… The presumption [of mental normality] does no more than assume that a defendant has normal mental capacity. Although the defendant claims to suffer from mental abnormality may not be able from his own resources produce evidence of this, such a condition is unquestionably personal to him and is one to which the prosecuting authorities will not normally be privy. It is reasonable that the defendant be required to prove that he suffers from the condition since it lies within his power to provide to medical experts the information necessary to establish its existence. The standard of proof that he is required to produce is such as will establish the proposition on the balance of probabilities, whereas if the burden were cast on the prosecution it would not only have to prove a negative (that the condition was not present) but would have to do so beyond reasonable doubt. While it may be true that medical knowledge about the aetiology of the condition is in a less than settled state, it does not appear to us to be reasonable that the prosecution (facing as it does a high standard of proof) should be burden with such difficulties in evidence that may arise from this lack of certainty.”

77.Even if s.3(2) infringed the presumption of innocence, it is, in our view, proportionate and justifiable.  In that context, Lord Hughes in R v Foye took the view that diminished responsibility was closely analogous to insanity rather than the defences which do not involve the issue of abnormality of mind.  They both challenge the assumption of normal mental functioning until the contrary is proven.  It would be a practical impossibility in many cases for the prosecution to prove beyond reasonable doubt an assertion that a defendant was insane or suffering from diminished responsibility.  It would not be sufficient for the prosecution to invite the jury to reject a bare assertion or one supported by poor evidence because it would have to go further and adduce evidence of the absence of abnormality.  The matter would be further exacerbated if the defendant did not submit to a medical examination, or refused to cooperate, or refused to make available medical records[96]. It is reasonable that the defendant be required to prove that he or she suffers from an abnormality of mind since it lies within his or her power to provide medical experts with the information necessary to establish such a mental condition. The standard of proof that he or she is required to produce is such as will establish the mental condition on the balance of probabilities, whereas if the burden were cast on the prosecution it would not only have to prove a negative in the sense that the mental condition was not present but would have to do so beyond reasonable doubt[97].

78.We consider that s.3(2) pursues a legitimate aim by placing on an accused the burden to prove he or she suffered from diminished responsibility in order to reduce a conviction for murder to manslaughter.  The imposition of a legal burden on an accused is rationally connected to this legitimate aim because it incentivises the defence to obtain and proffer medical and other evidence of the highly personal condition of the accused’s mental state at the time of the offence.  It is, therefore, appropriately necessary for that purpose.  On the assumption that the right of the presumption of innocence is engaged, we consider a legal burden on an accused to prove diminished responsibility strikes a reasonable balance between the societal benefits of the encroachment and the inroads made into the right.  In light of the specific nature of the defence, we are of the view that the restriction on the right does not place an unacceptably harsh burden on an accused.

79.In our judgment, the imposition of a legal burden on an accused to prove the partial defence of diminished responsibility is not only supported by a preponderance of authority but is sound in principle.

80.The facts of the case involved the applicant carrying out an execution-style killing with pistol shots to the head of Deceased 1 and 2.  Whilst the applicant did not formally admit she intended to kill or do serious bodily harm to Deceased 1 and 2, the account she had given to the police and the psychiatrists left no room for doubt that she had the requisite intention for the offence of murder[98].

81.This ground of appeal fails.

Ground 2: failure to give a full lies direction

82.On this ground, it was argued that the judge failed to give an adequate lies direction.  It was submitted that the prosecution conducted its case with the “strong imputation” that the applicant had been untruthful when she consulted Dr Wong and was feigning symptoms of mental illness.  It was argued that there was a real risk that the lay jurors would think that if the applicant was faking a mental illness, she must be trying to hide “a cold-blooded and premeditated shooting” as alleged by the prosecution.  Accordingly, this would constitute an impermissible line of reasoning, which would call for a suitable direction. 

83.Plainly, there was a legitimate issue with the applicant’s reliability regarding the information she provided concerning her history, symptoms and experiences.  This was addressed by Dr Wong in his evidence when he made the point that his opinion was based on what the applicant had told him[99]. The prosecution raised the issue of the applicant’s reliability before the jury based on the evidence of her inconsistent accounts to the two psychiatrists[100].

84.Mr Young complained that the judge’s directions extended only to untruths “she told Dr Wong”.  He contended that the jury should have also been told that feigning symptoms could not on its own be a reason to reject the applicant’s defence of diminished responsibility.  He further complained that when the judge repeated the prosecution’s submission that the applicant’s feigning was “most indicative of a lack of reliability”, it was necessary to direct the jury that they had to be sure she had deliberately pretended her symptoms before they used it against her on the issue of reliability. 

85.We find this submission somewhat artificial because the feigning of symptoms was based on the different accounts the applicant gave to the two psychiatrists and Dr Wong’s observation of the applicant’s initial odd behaviour at the commencement of her consultation, which changed after he warned her about feigning her symptoms.  In other words, the allegation that the applicant had feigned her symptoms was mainly based on the untruths she told the psychiatrists. 

86.Mr Young finally submitted that the jury should have been reminded that notwithstanding the allegations of lies and feigning, the applicant may have had innocent reasons for her conduct and may have still suffered from a mental disease if supported by other evidence that could not have been feigned.  These innocent reasons were unconvincing.  They included the applicant had an excessive fear of being transferred to the harsh environment of Tai Lam prison; the applicant at the time of the shooting switched moods from muttering to herself to socialising normally, which were signs of abnormalities; and the applicant’s degree of trust in the government and defence psychiatrists may have been different. 

87.We observe that the judge, in addition to addressing the expert evidence relevant to diminished responsibility, also reminded the jury of other evidence about the applicant’s conduct and behaviour that went to her mental state at the time of the offences.

The respondent’s submission

88.Mr Tam submitted that a lies direction is only needed when lies told by the defendant are relied upon as evidence of guilt. In the present case, the prosecution did not use the applicant’s lies to prove guilt.  Instead, it referred to the inconsistencies in the applicant’s account to the two psychiatrists to address and undermine the defence case of diminished responsibility.  Therefore, a full lies direction was not called for in the circumstances of the case.

89.Mr Tam also submitted that other directions by the judge impressed upon the jury that the case did not involve using lies as evidence of guilt.  He referred to the judge’s remarks where she told the jury, “decide what her intent is by considering all the relevant circumstances and, in particular, what she said about it. … if you are to believe what she related to Dr Wong is true or may be true, then she must be acquitted because she has no intent to shoot.”[101]; and “if you consider, because of the drug taken, she did not or might not have the requisite intent, she should be acquitted.”[102] 

90.As pointed out by Mr Tam, it was the defence’s understanding that the prosecution was not founded in any way on the applicant’s lies.  Senior Counsel, for the applicant at trial, sought a lies direction on the basis that “there may be a risk that they could see that this could lead to an inference that she had no case of diminished responsibility because she was feigning her diagnosis – her symptoms”[103].  The judge, therefore, gave a partial lies direction in terms that Senior Counsel accepted were adequate[104].

Discussion

91.When a court is asked to consider the appropriateness of a lies direction, practical guidance is provided by Yuen Kwai Choi v HKSAR[105] and Jim Fai v HKSAR[106].  In general terms, a lies direction is necessary where there is a risk that the jury may regard lies told by an accused as probative of his guilt, but if such a direction is given where it is not necessary, experience has shown that it adds complexity to the case and can do more harm than good[107].  

92.In addressing this complaint, it is relevant to note that the applicant primarily contested the offences alleged against her by relying on expert medical evidence about her mental condition at the time of the offences.  The applicant did not testify at her trial, and the psychiatric medical opinion of Dr Wong was mainly based on what she had told him during her consultation with him.  It was established during the trial that there were inconsistencies in what the applicant had told Dr Wong and the other psychiatrist, Dr Lui.  This aspect of the case was addressed by prosecuting counsel in his closing speech to the jury, who suggested that the applicant had not told the truth to Dr Wong and pretended to be suffering from a mental illness.  His comments were limited to the issue of diminished responsibility, and he did not invite the jury to consider the inconsistencies in order to infer guilt.  There was no issue that the applicant shot and killed Deceased 1 and 2, and hence the only question for the jury was whether she suffered from an abnormality of mind at the time that substantially impaired her mental responsibility.

93.In directing the jury on the partial defence of diminished responsibility to the murder counts, the judge made the following remarks about the medical evidence[108]:

“Let us take a look at the two claimed disorders more closely in light of the medical evidence. In doing so, members of the jury, you should bear in mind the following matters. First, the medical reports compiled by Dr Wong, for the defendant, and Dr Lui, for the prosecution, contain accounts given by the defendant to them as to her history, symptoms or her experiences. Dr Wong had fairly stressed that his opinion was based on what the defendant chose to tell him. He was not in a position to verify how reliable she was when she told him those matters. Dr Wong stressed the importance of reliability of information provided by the patient because he said most of the symptoms in mental illnesses are subjective, meaning are only known to the patient himself or herself. So he said he deferred to doctors who had seen the defendant more regularly, particularly on the issue of whether she is reliable or not.

The defendant has elected not to give evidence. Those accounts given to the psychiatrist have not been confirmed by her in court or tested on cross-examination. The prosecution say that her account is not true; her account is not accurate. And diagnosis based on unreliable information is of limited or of no use to raise the defence of diminished responsibility. If you have heard all these matters you are sure that what she told Dr Wong are not true, you should not base on that alone to infer that the defence of diminished responsibility is not available to her.

On the other hand, you may think that what she told Dr Wong has not been sworn to by the defendant in the witness box, it is not evidence of the existence in fact of what she said; namely, her past sensations, experiences or symptoms, and that a defence case based on evidence which has little, if any, firm evidential conviction.

…

Mr Lai, for the prosecution, asked you to pay special attention to Dr Wong’s, who is the defendant’s own psychiatrist, evidence, who told you in his report that right at the very beginning of his interview with her, she stared at him in a perplexed manner and talking irrelevantly. It was only after Dr Wong told her that he had limited time, he would see her only once and if he should find her feigning, meaning pretending mental symptoms, he would not hesitate to put it down in his report that she markedly changed to act normally. Mr Lai submitted that this was most indicative of a lack of reliability when providing her background information to Dr Wong for diagnosis.” (Emphasis added)

94.This case falls in “the great majority of cases” referred to in Yuen Kwan Choi[109], where a lies direction would not be appropriate except the applicant in this instance allegedly told untruths to Dr Wong rather than in the witness box:

“In the great majority of cases where the prosecution contend that an accused is telling lies in the witness box, a direction on lies is inappropriate…In cases where the rejection of any explanation given by an accused almost necessarily leaves the jury with no choice but to convict as a matter of logic, or where the jury are asked to decide on the truth of what an accused said on a central issue in the case, the usual direction on the burden and standard of proof would normally be sufficient.”

95.As explained by Chan PJ, giving the judgment of the court, in Jim Fai [110]:

“20. The purpose of a lies direction is to avoid a miscarriage of justice where the jury may embark on an impermissible process of reasoning in that they may be naturally inclined to find an accused guilty simply because they think he has lied. Whether a lies direction should be given on the contents of such a direction depend on the circumstances of each case, in particular, the use or possible use to which a proven lie or an allegation of light may be put. This was discussed in Yuen Kwai Choi v HKSAR (2003) 6 HKCFAR 113 from pp. 127-130.”

96.Chan PJ further explained that a lies direction would be inappropriate and the usual direction on the burden and standard of proof would be sufficient in a case where it is alleged the accused has lied in his evidence and is not worthy of belief.  He added that this also applies where an allegation is made that the accused has lied to somebody outside court as long as it is not alleged by the prosecution “to have been told by an accused to establish or assist its case or to strengthen an inference of guilt or where there is a danger that the jury may engage in an impermissible process of reasoning to the disadvantage of the accused.”[111] 

97.A full lies direction was not warranted in the circumstances of this case.  The applicant’s inconsistent accounts to the psychiatrists were an issue that went to her mental condition and were not relied upon by the prosecution to prove her guilt of the murder charges.  We are firmly of the view that there was no risk that the jury would use the inconsistent accounts for an impermissible purpose.

98.This ground of appeal is without merit.

Appeal against sentence

99.The applicant, in her written submission, claimed that the judge was biased, and she doubted whether the sentences imposed on her for Counts 3 and 4 were just and fair.  She complained that the judge had an animus towards her and only considered material unfavourable to her.  She suggested that a sentence of 9 years’ imprisonment was imposed in other similar cases and that the 12 years’ imprisonment adopted in the present case was unreasonable.

100.The applicant also complained that she had been ill-treated while in custody and asked for a review of her sentence, regarding her circumstances and mental condition.

101.Mr Tam submitted that according to HKSAR v Tsiang On Yan[112], possessing an unlicensed firearm with ammunition can attract a starting point after trial of 12 years’ imprisonment.  In the present case, the applicant possessed a loaded, unlicensed firearm with 9 bullets and a box of 41 bullets.  He pointed out that the suggested 9 years’ imprisonment by the applicant was the sentence of a case[113] cited by defence counsel at her sentence, where the Court of Appeal remarked that the sentence was “on the lenient side”.

102.Mr Tam further submitted that the judge had correctly adopted a starting point of 12 years’ imprisonment for each count and appropriately applied the totality principle by ordering 6 years of the sentence on Count 4 to be concurrent with the sentence on Count 3, where the total term of 18 years’ imprisonment for both counts could not be considered as manifestly excessive nor wrong in principle.

103.As stated by Mr Tam, there were features in this case that warranted a more severe sentence than the one given in Tsiang On Yan.  He argued that the shooting was not a spontaneous response or a chance encounter.  The applicant planned the meeting with her victims days before, pleading with them to come under the pretext of wanting to thank them in person.  He submitted that the planning, premeditation, and the luring of the victims to a gathering were strong aggravating factors.  It was sheer luck that one of the victims suffered only two graze wounds, but as the judge stated it was the intent that mattered.

104.We note there were also the grave aggravating factors that the applicant discharged a firearm in a public place and that she was equipped with a substantial quantity of ammunition to continue shooting if necessary.  This was an execution-style killing where the applicant succeeded in killing two of her relatives, while two others were fortunate to escape death.

105.We can find no error in the judge’s approach in sentencing the applicant on Counts 3 and 4, which she made concurrent with the concurrent life sentences on Counts 1 and 2.  The making of the sentences concurrent meant that they had no bearing on the applicant because of the life sentence she has to serve.

Conclusion

106.For the reasons we have given, we find no merit in the grounds of appeal against conviction and sentence, and accordingly, the applicant’s leave applications are refused, and the appeals are dismissed.

Mr William Tam, SC, DDPP and Mr Michael Ma, SPP, of Department of Justice, for the respondent

Mr Simon Young, instructed by GT Lawyers, assigned by the Director of Legal Aid, for the applicant (for conviction)

The applicant appeared in person (for sentence)