The Queen v. Fung Mui-lee

Case No.CACC 22/1995

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000022/1995

IN THE COURT OF APPEAL	1995.No.22
	(Criminal)

BETWEEN
	THE QUEEN	Respondent
	and
	FUNG MUI-LEE	Appellant

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Coram: Hon Nazareth V-P Liu and Mayo JJA

Date of Hearing: 21st September 1995

Date of Judgment: 21st September 1995

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JUDGMENT

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Nazareth V-P:

1. The appellant, Fung Mui-lee, was on 22nd November 1994 convicted by His Honour Deputy Judge Sweeney of two charges. First, robbery in that on 23rd July 1994 at Chui Yat Fashion Shop, Ground Floor. Kwei Chow Street, Kowloon, in Hong Kong, she robbed Chim Mui-kuen of three finger-rings, a necklace, a pair of ear-rings, a watch, cash of $2,240 and a quantity of dresses; and also Ma Hoi-yan of a necklace, a finger-ring and a "discman". The second charge was of assault with intent to prevent lawful apprehension in that at the same time and place she assaulted Tang Hon-leung with intent to prevent her lawful apprehension.

2. On 13th the judge sentenced her to 2 ?years on the first charge and ?year on the second charge to run consecutively, making a total of three years.

3. She appealed to this Court against both conviction and sentence, stating in her home-made grounds simply that she had been confused, she had taken medicine and it was unintentional.

4. Her appeal came before a partly differently constituted division of this Court on 31st May. That division, having seen the judgment, issued a legal aid certificate and ordered a full transcript to be prepared and provided to both sides. In consequence, the appellant is now represented by Mr Mullick who has put in four composite perfected grounds of appeal.

5. Turning then to the facts, at about 18.15 hours on 23rd July 1994, the appellant, whom I refer to as the defendant, entered the fashion shop referred to in count 1. ostensibly to purchase some clothing. She wore a black vest, trousers, black gloves and an overcoat, although this was the height of summer. She carried a handbag and a black nylon bag. Taking about an hour to do so, she collected about one hundred dresses and valued at about $10,600, saying she would sell them in Taiwan. The clothes were packed for her but when it came to the time for paying for them, she produced a knife from her handbag and threatened the female owner of the fashion shop and her 16-year-old assistant. The defendant warned them not to shout and pushed them into a fitting room in the shop. She intended to gag and tie them with a roll of adhesive tape she had brought with her but without success. She then pulled down the shop shutter and cut the telephone line. The shop owner and her assistant were ordered to surrender their valuables and the defendant took about $2,240 from the cash register. At about this point the owner's husband arrived to collect his wife from work. He found the shutter down. Those inside heard his voice and him attempting to open the shutter. The defendant appeared to panic at this stage. She shouted something to the husband and he stayed outside. Inside the shop she went through phases of aggression and submission followed by aggression. She ordered the owner and her assistant, with a knife she had brought, to help her carry the three bags of clothing to the street and to hail a taxi for her. She told them not to make a sound. She also begged them on her knees not to report this matter to the police. She told them she was controlled by a triad society and had incurable cancer. She said, "Don't shout or I kill myself by stabbing." The shop-owner and her assistant left the shop with her each carrying a bag of the dresses she had selected.

6. The defendant attempted to board a stationary taxi. But before she made off, the owner informed her husband who then attempted to apprehend the defendant. There was a tug of war between the defendant and the husband before she let go the bag of dresses she was holding. Once inside the taxi, she locked all the four doors and took out the beef knife she had and threatened the reluctant taxi-driver. It was this conduct that led to the 2nd charge.

7. She was captured when the taxi-driver grappled with her for possession of the knife and two policemen attracted by the struggles appeared, one of whom pointed a revolver at her. She surrendered at that stage.

8. Her defence was, as the judge put it, that at the relevant time she had no idea what she was doing as a result of the effect of taking too many "Imovane" tablets combined with a pre-existing psychosis. She said that her first and only memory of the matter was her moment of surrender to the police. This and the facts raised questions about her intentions and mental state.

9. Before us Mr Mullick submits that the judge made two fundamental and fatal errors of law in his reasons for verdict. First, he relied upon a presumption at common law that a person intends the natural and ordinary consequences of his act. That arose in the following way.

10. In his reasons, the judge having set out the facts, listed factors tending to show presence of intent, and also factors tending to show an absence of intent The underlying facts were of course not disputed. The judge concluded that part of his reasons by stating:

"The Prosecution have established what happened externally that evening - how do they establish what was happening internally in the Defendant's mind?"

He then went on in the following words:

	Presumption as a state of mind
	At common law there is a presumption that a person intends the natural and probable consequences of his acts. By Section 65A(b) of the Criminal Procedure Ordinance in determining. Whether an offence has been committed the Court may refer to all of the evidence, drawing of such inferences from the evidence as appear proper in the circumstances."

11. That is indeed what para. (b) of s.65A(1) provides. But the judge clearly misread the subsection as a whole or overlooked para (a) which provides that a court or jury in determining whether a person has committed an offence shall not be bound in law to infer that he intended or foresaw a result of his acts or omissions by reason only of its being a natural and probably consequence of those acts or omissions.

12. Mr Bruce rightly concedes that the judge was wrong in applying that presumption. If any authority is needed for that proposition, it is to be found in R v Frankland [1987] 1 AC 576 at pp.585 A-B and 594 C-G. Also in R v Sheehan and Moore [1974] 60 CrAppR 308 at 312, with respect to specific intent. The judge recognised that the two offences here were crimes of specific intent. There are other authorities to which Mr Mullick has referred and which appear in his list of authorities; I do not find it necessary to refer to them.

13. I shall return to the effect of the judge's first error of law and I turn now to the second upon which Mr Mullick relies. He submits that the judge erred in placing upon the defendant the onus of proving on the balance of probabilities that at the material time, she did not have the requisite intent, quoting from the words the judge used. "to do what we know she did". What the judge actually said at the end of his reasons before setting out his findings was this:

"However, the same considerations applied under this heading as they apply to the Defence of 'Intoxication in that I have also to consider if the Defence has established, on the balance of probabilities, that the Defendant at the material time did not have the requisite intent to do what we know she did. I reject this Defence for the same reasons that I rejected the plea of 'Intoxication' above."

14. Again Mr Bruce very properly concedes this error of law, though not the consequences contended for by Mr Mullick. To demonstrate the error it is only necessary to refer to the House of Lords judgment in Bratty v AG for Northern Ireland [1963] AC 386 at p.407.

"Where the defence succeeds in surmounting the initial hurdle (see Mancini v Director of Public Prosecutions), and satisfies the judge that there is evidence fit for the jury to consider, the question remains whether the proper direction is : (a) that the jury will acquit if, and only if, they are satisfied on the balance of probabilities that the accused acted in a state of automatism, or (b) that they should acquit if they are left in reasonable doubt on this point. In favour of the former direction it might be argued that, since a defence of automatism is (as Lord Goddard said in Hill v Baxter) very near a defence of insanity, it would be anomalous if there were any distinction between the onus in the one case and in the other. If this argument were to prevail it would follow that the defence would fail unless they established on a balance of probabilities that the prisoner's act was unconscious and involuntary in the same way as, under the M'Naughten Rules, they must establish on a balance of probabilities that the necessary requirements are satisfied.

Nevertheless, one must not lose sight of the overriding principle, laid down by this House in Woolmington's case, that it is for the prosecution to prove every element of the offence charged. One of these elements is the accused's state of mind; normally the presumption of mental capacity is sufficient to prove that he acted consciously and voluntarily, and the prosecution need go no further. But if, after considering evidence properly left to them by the judge, the jury are left in real doubt whether or not the accused acted in a state of automatism, it seems to me that on principle they should acquit because the necessary mens rea-if indeed the actus reus-has not been proved beyond reasonable doubt."

15. He concluded at p.408:

"I am also supported by the words of Sholl J in Reg. v Carter where he said: 'It must be for the defence in the first instance genuinely to raise the issue, but is the defence does raise the issue in a genuine fashion then the Crown, which of course may call rebutting evidence on the matter, is bound in the long run to carry the ultimate onus of proving all the elements of the crime including the conscious perpetration thereof.'

My conclusion is, therefore, that once the defence have surmounted the initial hurdle to which I have referred and have satisfied the judge there is evidence fit for the jury's consideration, the proper direction is that, if the evidence leaves them in a real state of doubt, the jury should acquit."

16. Lord Denning at pp. 412 and 413 also discussed the background and relevant considerations which I will not reproduce having regard to their length. He concluded at p.414:

"Once a proper foundation is thus laid for automatism, the matter becomes at large and must be left to the jury. As the case proceeds, the evidence may weigh first to one side and then to the other and so the burden may appear to shift to and fro. But at the end of the day the legal burden comes into play and requires that the jury should be satisfied beyond reasonable doubt that the act was a voluntary act.

This brings me to the root question in the present case: Was a proper foundation laid here for the defence of automatism, apart from the plea of insanity? ..."

17. This Court followed Bratty in R v Mohammed Hussain [1993] 1 HK CrLR1 where Fuad V-P giving the judgment of the court cited from the judgment of Lord Denning, a part of the passages to which I have referred.

18. Turning to the reasons for verdict, the judge accepted that a proper foundation had been laid, rightly, in my view, because medical evidence had been led and significantly the prosecution saw fit not to even attempt to rebut it.

19. Before I leave the matter I feel bound to say that these errors in the nature on fundamental misdirections may well have been contributed to by counsel's approach to the issues.

20. Turning then to the consequences of the errors, notwithstanding their fundamental nature, Mr Bruce submits that the judge was entitled to and did make the findings necessary to support the conviction in the last pages of his judgment where he recorded his findings in the following words:

"I find overwhelming uncontested evidence of a series of activities which bore all the hallmarks of conscious activity and that could not have been carried out by persons whose conscious mind was not involved. I find the Defendant's behaviour that night was motivated behaviour accompanied by speech relevant to the situation she was in.

I accept that the Defendant may well have taken many 'Imovane' pills that day but that was nothing new for them. I find that this was purposeful, motivated behaviour consistent with disinhibition due to taking the pills. I find that the Defendant formed the intention to rob a shop, made all the necessary preparations and then took more pills to see her through the task. That is the only inference to be drawn from her behaviour that night and the evidence before this Court."

21. If I correctly understand him, Mr Bruce's submission is that despite the nature of the judge's errors of law, having regard first to the undisputed facts, second, the definition of automatism in Viscount Kilmuir's judgment in Bratty reproduced at p.8 lines 1-9 of Mohammed Hussain; and third, the medical evidence of Dr Chung which, he submits, did not go so far as showing there was no consciousness of what was being done, the judge's finding must be regarded as having been made to the normal criminal standards. That is not a submission that I feel I can accept. In the way the judge approached his conclusion in his reasons, it can only be concluded that he relied upon the presumption at common law. Likewise, that he placed the onus upon the defendant to show upon the balance of probability that she did not have the requisite intention. The latter emerges not merely from the judge's concluding words which I have quoted, but also from an earlier reference at p. 25 of his reasons and generally from his approach. Clearly, his findings cannot be allowed to stand. Not, in my view, can the proviso properly be applied.

22. I would have no hesitation in allowing the appeal and setting aside the conviction and sentence.

23. Before I leave the matter, I have to thank counsel for their very helpful and responsible submissions. In regard to die latter, I would observe that had the judge had the benefit of similar submissions, I feel sure he would not have fallen into the errors he did

Liu JA:

24. I agree.

Mayo JA:

25. I agree that this appeal must be allowed. Mr Bruce accepts that the learned trial judge misread s.65A of the Criminal Procedure Ordinance, Cap. 221 and applied the wrong burden of proof.

26. Although there was evidence available that the applicant had the requisite intent, this is not a case where it would be appropriate to exercise the proviso.

27. The central plank of the defence case which was run in the court below was the applicant's mental state at the time of the offence. It was essential that the available evidence should be adequately weighed by the trial judge and I do not consider that a proper evaluation of the evidence was possible when a trial judge was labouring under a misapprehension of the law as serious as this.

(G.P. Nezareth)	(B. Liu)	(Simon Mayo)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Mr John Mullick (DLA) for Appellant

Mr A.A. Bruce for the Crown/Respondent