HKSAR v. Tang Kwok Wai

CACC000465A/1999

CACC 465/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 465 OF 1999

(ON APPEAL FROM HCCC 134/1999)

__________________

___________________

Coram: Hon Stuart-Moore VP, Leong JA and Wong JA in Court

Date of Hearing: 1 August 2000

Date of Judgment: 1 August 2000

_______________________

D E T E R M I N A T I O N

_______________________

Leong JA (giving the determination of the Court):

1. On 18 July 2000 this court dismissed an application for leave to appeal against conviction by the applicant Tang Kwok-wai. The applicant was convicted of attempted murder. One of the grounds raised in the application for leave to appeal was the Judge failed to leave the issue of insanity to the jury. There was evidence from both the prosecution psychiatrist and the defence psychiatrist that the applicant knew what he was doing at the material time and there was no impairment of his memory albeit his judgment was markedly impaired and he was labouring under a defect of reason at the time. As to whether he knew what he was doing was wrong, the prosecution psychiatrist said he knew that it was so while the defence psychiatrist said that possibility was not ruled out.

2. The experts' evidence was that the applicant's defect of reason was induced by his taking the drug "ice" and this was a transient condition which would subside spontaneously on withdrawal of the drug. There was no disease in the body of the applicant. This court, having referred to R v Quick [1973] QB 910 decided that the condition of the applicant being a temporary disposition displayed by him as a result of taking "ice" did not qualify him within the meaning of "disease of the mind" in the M'Naughten Rules. This court concluded that there was insufficient evidential basis for the issue of insanity to be left to the jury.

3. The applicant now applies for a certificate for appeal to the Court of Final Appeal that the appeal involves a question of law of great and general importance. This question is set out in the Notice of Motion as follows:

"An accused cannot be said to be suffering from a disease of the mind within the M'Naughten Rules when at the relevant time

(a) he suffered from a temporary defect of reason brought about by his taking a non prescription drug; and

(b) he was not intoxicated by the drug."

4. Mr Philip Ross refers to a number of Canadian and Australian cases and submits that in the light of these cases, R v Quick and this court's ruling should be examined by the Court of Final Appeal.

5. Suffice to say that these cases concern wholly different situations and conditions of the accused's mind and the principle decided in these cases are not inconsistent with what had been decided in R v Quick and by this court.

6. R v Malcolm [1989] 50 CCC (3rd) 172 is concerned with delirium tremens brought about by prolonged and chronic, albeit voluntary, consumption of alcohol and the condition remains despite the withdrawal of alcohol. The accused in that case did not remember what he was doing.

7. In R v Porter [1933] 55 CLR 182, there was nothing to support the view that the accused was in a condition that he could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that he was involved was destruction of life.

8. In R v Meddings [1966] VR 306, the accused suffered from epilepsy which was a disease of the mind and the accused shot his friend in a state of automatism following an epileptic attack. The court in that case held that "If a man is liable to an epileptic attack by reason of a predisposition, whether resulting from injury or from some idiopathic cause, it could properly be said he had a disease of the mind within the M'Naughten Rules". But that was wholly different from the situation of the present case.

9. The point of law is well established and the appeal does not involve a point of law of great and general importance.

10. The application for a certificate is dismissed.

Representation:

Mr Robert S K Lee, SADPP and Miss Everlyn Tsang, GC, of the Department of Justice, for the respondent

Mr Philip Ross, assigned by the Legal Aid Department, for the applicant