The Queen v. Hong Yiu Fat

Case No.CACC 381/1983

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000381/1983

IN THE COURT OF APPEAL	1983, No. 381
	(Criminal)

BETWEEN

	THE QUEEN	Respondent
	and
	HONG YIU FAT	Appellant

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Coram: Sir Alan Huggins, V.-P., Yang, J.A. & Garcia, J.

Date: 26th July 1983

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JUDGMENT

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Sir Alan Huggins, V.-P. :

1. The Appellant was one of two defendants charged with having, together with Juanita Bernardo, murdered a young girl. Juanita Bernardo, the mother of lst Defendant, committed suicide after the alleged murder and a younger son died with her. 1st Defendant raised the defence of duress and was acquitted.

2. Barker, J A., sitting as an additional judge of the High Court, correctly told the jury that the Appellant had raised two defences, insanity and diminished responsibility. They were the only two defences mentioned by counsel who appeared for the appellant at the trial in his closing address and they were the two matters which took up the greater part of the trial. It was common ground that Juanita Bernardo had killed the Deceased and that both Defendants had been in the flat at the time of the killing. The appellant even admitted that he and Juanita Bernardo had tried to suffocate the Deceased with a pillow shortly before the death. The evidence was that when that attempt was unsuccessful Juanita Bernardo first tried to drown the Deceased in a bath tub and then killed her by strangling her with a stocking.

3. The suggested basis for the defences of insanity and diminished responsibility was a condition known as a folie a deux. It was common ground that Juanita Bernardo was suffering from a delusion that the Deceased was a devil whom, on instructions from a cow god, she was required to kill and that she was probably insane. The appellant, who at the material time was just over 15 years of age, sought to show that by virtue of his close association with Juanita Bernardo he had become infected by her insane delusions and was, in whole or in part, not master of his own mind. The defence adduced evidence in support of this contention from a Dr. Anderson and the Crown called Dr. Iu to give rebutting evidence. There was a deep division of opinion between these two experts and the jury had the difficult task of deciding whose evidence it should accept. In the event it must have rejected the conclusion reached by Dr. Anderson.

4. Inevitably the doctors had in reaching their opinions to consider what they were told by the Appellant in their interviews with him. Dr. Iu expressly stated that if what the Appellant told him were true he would have agreed with Dr. Anderson that the appellant was suffering from folie a deux. However, he was driven to believe that what the appellant told him was not true and as a result, in February 1983, he formed the opinion on the other evidence available to him that the Appellant was not suffering from folie A deux. From what he subsequently learned, both before and at the trial, he later came to the conclusion that, even if what the appellant had told him up to February 1983 were true, he was not suffering from folie a deux.

5. The first ground of appeal complained the the judge had not expressly told the jury that Dr. Iu's evidence that he disbelieved what the Appellant had told him was admissible only in so far as his disbelief was part of the foundation of his professional opinion and was not evidence that the appellant had in fact lied to the doctor. It was, of course, for the jury to decide whether what the Appellant had told the doctor was true, and nothing that the learned judge said in his summing up suggested otherwise. It must have been obvious to the jury that, if the doctor had disbelieved what it thought to be the truth, the doctor's conclusion was suspect. What the judge did not say was that the fact that the doctor disbelieved the appellant should be disregarded when the jury was considering whether the Appellant had in fact told the truth. However, nothing that he said could have led the jury to think that it should be influenced by the doctor's opinion when it came to form its own opinion as to what had happened. It had been told that matters of fact were for the jury and we think that the absence of any express warning cannot have had a prejudicial effect.

6. The second ground of appeal is, in, our view, entirely without merit. Complaint is made that the learned judge said:

"Dr. Iu said: 'No. It is just not folie a deux at all.'"

7. With respect that is precisely what Dr. Iu did say. Mr. Sparrow agreed that his real complaint was that the judge did not sufficiently direct the jury as to the basis of Dr. Iu's opinion and that this ground was merely an extension of ground l, the omission being an express direction that the jury had to decide whether the appellant believed that the girl was a devil. We have already said that we think this was sufficiently clear.

8. Next it was argued that, because the judge had put questions to Dr. Anderson and to the Appellant to demonstrate that the appellant had lied to the doctors, he ought in his summing up to have told the jury that the fact that the Appellant had lied previously was not a fact from which it could be inferred that he was lying in the witness box. It was certainly a fact which might lead the jury to think that the appellant was prepared to tell lies when it suited him, and no such direction as that suggested was necessary.

9. The ground of appeal which has caused us anxiety is that relating to a defence which, although it clearly arose on the evidence, did not constitute a plank in the defence case as presented, namely that the evidence did not sufficiently connect the Appellant with the events which followed the initial attempt to suffocate the Deceased with a pillow. The attention of everyone involved in the trial was so concentrated on the difficult issue created by the medical evidence that it is, perhaps, not surprising that this other aspect of the case received only passing reference.

10. Having given the usual definition of murder the judge first told the jury:

"What you have to decide on this count, however, is this. Has the prosecution satisfied you that these two young men, or either of them, actually participated in the killing of this poor innocent ten-year old girl, Ah Fan, with the intention of assisting Juanita to kill her and themselves intending to kill her?"

That was unexceptionable. He went on:

"	Mere presence, mere standing by and watching a murder being committed cannot amount to guilt. But merely because neither of the accused actually held the stocking with which this unfortunate girl was strangled does not mean that they cannot be convicted of murder. For example, if you were satisfied that Ah Roy handed the stocking to his mother realising that he intended to use it to strangle the girl, and himself intending that it should be so used, then - and again I add, subject to any possible defences - your verdict would be guilty of murder in respect of him.
	Moreover, it is open to you to treat these dreadful series of acts as part of a whole - the attempted suffocation, the attempted drowning in the bath and the eventual strangulation as a whole - and to say we are satisfied that either one or both of the accused actively participated in one or more of these acts with the intention of killing Ah Fan, in which event you would, subject to any defences, convict that person or those persons in respect of whom you were so satisfied of murder.
	Members of the jury, your verdict on the charge of murder must be a unanimous one, that is unanimous for conviction or unanimous for acquittal. If it should happen that the prosecution has not satisfied you of the guilt of one or other or both of the accused on the charge of murder, then you should go on to consider a charge of attempted murder, that is of trying to murder Ah Fan.
	It may be that you are of the view, a view argued upon you by both counsel for the defence, that one or other or both of these accused initially tried to kill Ah Fan by assisting Juanita to suffocate her, and then they drew back and took no further part in it. It is in such circumstances that you should consider the charge of attempted murder.".

He then distinguished an attempt from "mere preparation for the offence''. However, he did not review the evidence which tended to support the possibility that the appellant had dissociated himself from the subsequent acts of Juanita Bernardo. The invitation "to treat these dreadful series of acts as part of a whole" and the suggestion that the jury could convict of murder if the Appellant "actively participated in one or more of these acts with the intention of killing ... subject to any defences" could be misleading.

11. The evidence of the appellant and of 1st Defendant was that after the Appellant had actively participated in the pillow incident they both withdrew to another room and cried, because they were upset by what was going on, thinking that it was wrong. There was evidence that during the attempt at drowning both boys were outside the door of the bathroom, but there was no evidence that they entered the bathroom. Juanita Bernardo did, it was said, call to them to pass her the stocking with which she eventually committed the murder, but they did not do so. Admittedly the Appellant assisted in the subsequent disposal of the body, but that was not conclusive evidence that he was party to the murder. In our view the circumstances of this case - in particular the age of the appellant and the possibility that he was under the influence of Juanita Bernardo rather than that he was giving encouragement to her - demanded that there should be a full and careful direction relating to the effect of the alleged withdrawal, and emphasis should have been placed on the need for a continuing intent and a continuing participation right up to the moment of the strangulation. It was essential for the jury to understand that the crime of murder involved both an actus reus and a mens rea which were different from those necessary for a conviction for attempted murder. Had a proper direction been given we think it is by no means certain that the jury would have concluded that the Appellant had the necessary intent throughout the "dreadful series of acts" or that he was party to the eventual killing. Understandable as the omission may be, we think it is fatal to the conviction for murder and we substitute a verdict of "not guilty of murder but guilty of attempted murder".

26th July 1983