R. v. Chiu Sau Wah and Another
Read the full judgment text of CACC 182/1996 on BabelCite. This Court of Appeal judgment.
1. On the evening of May 31, 1995, a woman was robbed and killed in her home, a flat in Ma On Shan.
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CACC000182/1996 1996, No. 182 (Criminal) H E A D N O T E The accused was charged with robbing a woman and murdering her. He pleaded guilty to robbery. But he pleaded not guilty to murder. He ran the partial defence of diminished responsibility with a view to reducing his offence to manslaughter. In support of that partial defence, he called a psychiatrist who gave evidence that he was suffering from diminished responsibility. The prosecution did not call any medical evidence that the accused was not suffering from diminished responsibility. But it challenged the medical evidence that he was. In the result, the jury convicted the accused of murder. On appeal, the accused contended that his conviction should be reduced to one of manslaughter. His grounds of appeal were that the trial judge had erred in that he :
The Court of Appeal dismissed the appeal for the following reasons. Although the prosecution did not call any medical evidence negativing diminished responsibility, the medical evidence of diminished responsibility called by the accused was indeed challenged - and legitimately so - by the prosecution who was not obliged to and did not accept the account given to his psychiatrist by the accused, who did not himself go into the witness-box. (See R v. Bathurst (1968) 52 Cr. App. R. 251 at p. 255) Moreover, there was evidence of circumstances running counter to the medical evidence of diminished responsibility. The deceased knew the accused and could have identified him if left alive to do so. And there was evidence of calculating conduct on his part in leaving her alive until he had ascertained that she had given him the correct number for withdrawing money by means of her cash card. And then, after she had been killed, he used that card to withdraw money from her account. (See Walton v. R [1978] AC 788 at p. 793 and R v. Sanders (1991) 93 Cr. App. R. 245 at p. 249) IN THE COURT OF APPEAL 1996, No. 182 (Criminal) ______________
______________ Coram: Litton VP, Bokhary JA & Saied J in Court Date of hearing: 31, January 1997 Date of judgment: 31, January 1997 ______________ J U D G M E N T ______________ Bokhary JA: 1. On the evening of May 31, 1995, a woman was robbed and killed in her home, a flat in Ma On Shan. 2. Three persons - Miss Chiu Sau Wah, Mr Hui Kwan Ho and Mr Cheung Tsz Pan - were charged with murdering and robbing her. Two of them - Miss Chiu and Mr Hui - are now before us. 3. Early last year, the case came on for trail before Mr Justice Gall and a jury. 4. Miss Chiu, a woman then aged 20, pleaded guilty to the robbery. As to the murder, she gave evidence for the prosecution under an immunity. 5. Mr Hui, a man in his early 20's, also pleaded guilty to the robbery. And so eventually did Mr Cheung who was then in his late teens. Both Mr Hui and Mr Cheung pleaded not guilty to the murder. 6. By their unanimous verdicts delivered on March 8 last year, the jury convicted Mr Hui of murder and Mr Cheung of manslaughter. 7. Asked whether their manslaughter verdict had been arrived at "on the basis of diminished responsibility or on the basis of an unlawful act", the jury answered: "on an unlawful act". 8. Sentencing took place on March 15 last year. 9. Miss Chiu was sentenced to 4½ years' imprisonment for the robbery. 10. Mr Hui was sentenced to life imprisonment for the murder and a concurrent term of seven years' imprisonment for the robbery. 11. We are not concerned with Mr Cheung, but would just mention that he was sentenced to a total of six years' imprisonment by way of concurrent terms of that duration for the manslaughter and the robbery. 12. Miss Chiu now seeks a reduction of her sentence. 13. And Mr Hui now seeks the reduction of his conviction of murder to one of manslaughter. He does so on points of law, complaining of misdirection by the trial judge. 14. At the moment, we are dealing with his appeal. 15. In outline, the circumstances of this case are as follows. 16. The two women in this tragedy - the deceased and the applicant Miss Chiu - were cousins. They shared a flat, being the one in which the deceased was robbed and killed. 17. Unfortunately for these two women, Mr Hui was the boyfriend of one of them, namely the applicant Miss Chiu. 18. On the day on which she died, the deceased had received two cheques totalling $13,214. She had received them from the wife of the owner of the factory at which she had ceased working on that very day, having given notice the month before. 19. Mr Hui and Mr Cheung formulated a plan to rob the deceased. 20. To that end, they obtained Miss Chiu's help. She admitted them into the flat and then participated in a "rehearsal" in which she played the role of the deceased being overpowered by them. 21. In the course of the robbery to which all three accused pleaded guilty, the deceased was chopped with a chopper and bludgeoned with a hammer, losing her life as a result of such attack. 22. There was evidence on which the jury were entitled to find - as they appear by their verdicts to have found - as follows. 23. At the time of the immediate physical acts by which the deceased was robbed and killed, Miss Chiu was cowering in another part of the flat. 24. Mr Cheung manhandled the deceased for the purpose of robbing her. But he did so without any intention that she should be killed or even very seriously injured. 25. It was Mr Hui who chopped and bludgeoned the deceased. And he intended not only robbery or even just really serious injury. He actually intended to kill her, which he did. 26. He now appeals against his conviction of murder, arguing that it should be reduced to manslaughter on the basis of diminished responsibility. 27. In the perfected grounds of appeal against conviction filed on his behalf, it is contended that the trial judge erred in that he:
28. The fact of the matter is that the medical evidence of diminished responsibility led on Mr Hui's behalf was indeed challenged by the prosecution even though the prosecution did not call any medical evidence to negative diminished responsibility. Nor can it be said that there was nothing on which the prosecution could rely for the purpose of casting doubt on such evidence. 29. When interviewed by the police, Mr Hui told them that he had planned to kill the deceased. 30. A psychiatrist, Professor Wong Chung-kwong, was called on Mr Hui's behalf. Professor Wong gave it as his expert opinion that Mr Hui was suffering from diminished responsibility. 31. That opinion was not accepted by the prosecution, and it was legitimately challenged by prosecuting counsel in his cross-examination of Professor Wong. 32. It appears that Mr Hui, who did not go into the witness-box, had given Professor Wong a different account from the one contained in the records of his interviews by the police. As to that and as to background matters, even though Professor Wong accepted what Mr Hui had told him, the prosecution was not obliged to and did not. And as Lord Parker CJ said when giving the judgment of the Court of Appeal in England in R v. Bathurst (1968) 52 Cr. App. R. 251 at p. 255:
33. Professor Wong expressed the view that even if Mr Hui had planned to kill the deceased, he would not have carried out that plan if the deceased had not bitten him during the struggle. The prosecution was not obliged to accept the view. They did not accept it. And they challenged it in cross-examination. 34. In Walton v. R [1978] AC 788 at p. 793, Lord Keith of Kinkel said, in the course of delivering the advice of the Privy Council, that:
35. And in R v. Sanders (1991) 93 Cr. App. R. 245 at p. 249, Lord Justice Watkins said, in the course of giving the judgment of the Court of Appeal in England, that:
36. In the present case, there was evidence of other circumstances running counter to the medical evidence. The deceased knew Mr Hui. She could have identified him as one of the robbers if she were left alive to do so. What is more, there was, on the basis of his confessions, calculating conduct on the part of Mr Hui. He had kept the deceased alive until he had ascertained that she had given him the correct number for withdrawing money by means of her cash card. And then, after she had been killed, he used that card to withdraw money from her account. 37. Counsel for Mr Hui - who has our gratitude for his very full submissions - accepts that he cannot fault the judge for not going so far as to direct a manslaughter verdict. What is left? We have already quoted the grounds of appeal and need not repeat them. All we need to say is this. 38. The judge cannot be faulted for not directing the jurors that the medical evidence was unchallenged. It was challenged. 39. Nor can the judge be faulted for not dealing with the position which would have arisen if there had been nothing to throw doubt on the medical evidence. As we have already pointed out, there was evidence of circumstances which cast doubt on that evidence. 40. In the result, we dismiss Mr Hui's appeal against his conviction of murder. 41. What remains is Miss Chiu's application for leave to appeal against her sentence. [Argument thereon] 42. We are now dealing with Miss Chiu's application for leave to appeal against sentence; and we thank counsel for their assistance thereon. 43. The robbery had been planned by the two men. And, although it could have been higher, we respect the judge's selection of a 10-year starting point in sentencing them for the robbery which they planned. 44. As far as Miss Chiu's role in the robbery is concerned, the judge rightly categorised it as considerably lesser than that of the two men. He said that it amounted to "acquiescence". 45. In those circumstances, we are unable to support the judge's selection of the same starting point for this girl as for the two men. 46. The robbery was a horrendous one. But we bear in mind not only Miss Chiu's relatively minor role but also the bizarre circumstances in which she came to assume that role. 47. Although those circumstances have not emerged with complete clarity, they seem to have been of this nature. There had been a quarrel between Mr Hui and Miss Chiu. He objected to a telephone call which she was making. And it resulted in his putting his hands around her throat and attempting to strangle her or at least pretending that he was trying to do so. She at any rate seems to have believed that he was attempting to take her life. And she offered to take her own life. She slashed her own wrists, although not so seriously as to render her incapable of what she went on to do. Ultimately, however, she did require some treatment for it. 48. If all of that was bizarre, things became even more bizarre. Mr Hui announced that Miss Chiu did not have to die provided that she helped out in the robbery which he had in mind. It cannot be said that she cynically traded somebody else's life for her own. Things were not quite so clear-cut. And she was obviously very disturbed. 49. For all those reasons, we select a starting point of eight years for Miss Chiu, even though this robbery was as horrendous as it was. 50. How should the sentence come down from that starting point? First of all, there was the guilty plea discount to which Miss Chiu was entitled. Then came the very considerable credit which she earned by giving evidence for the prosecution on the murder count. Finally, she is obviously a very weak and disturbed person. 51. At the end of the day and striking the best balance we can, we have come to the conclusion that the appropriate sentence for Miss Chiu is 31/2 years' imprisonment. She will, we trust, receive in prison such help as she needs. 52. Treating her application for leave to appeal against sentence as the appeal itself, we allow the same and reduce her sentence by a year from 4½ years' imprisonment to 3½ years' imprisonment.
Representation: Mr Michael Poll (instructed by the Director of Legal Aid) for the applicant Chiu Sau Wah Mr John Halley (instructed by the Director of Legal Aid) for the appellant Hui Kwan Ho Mr A E Schapel (of the Attorney General's Chambers) for the respondent |