HKSAR v. Tang Kwok Wai

CACC000465/1999

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)

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

Date of Hearing: 18 July 2000

Date of Judgment: 18 July 2000

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J U D G M E N T

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Leong JA (giving the judgment of the Court):

1. The applicant Tang Kwok-wai was convicted before Jackson J and a jury of one count of attempted murder and was sentenced to 6 years imprisonment. He now applies for leave to appeal against conviction and sentence.

2. The charge alleged that the applicant on or about 19 January 1999 outside Room 1817, Shun Wo House, Wo Che Estate, Shatin, attempted to murder Au Wing-sze.

3. The prosecution case is mainly based on the evidence of the victim Au Wing-sze, PW1. Au had been living with the applicant. In December 1998, Au visited the Mainland with her family and did not return until 10 January 1999. On her return she found the applicant behaving strangely and sometimes for no apparent reasons, appeared to be very frightened. The applicant told her he was afraid that someone would harm her and he had been taking the dangerous drugs "ice" while she was away. On 16 January 1999, Au found the applicant taking "ice" at home and told him to stop it but the applicant refused to listen to her. The applicant continued to behave abnormally and was unable to sleep and on 18 January 1999, Au took the applicant to her family's home to see if he could sleep. But that was of no avail and they returned home. On the way back, the applicant suddenly locked his arm around Au's neck and asked her to tell him what she knew. He then dragged her up stairs. The applicant then started to kick things around, cried, laughed and talking incoherently. The applicant then pointed a knife at her and asked her if she was hiding anything from him.

4. On 19 January 1999 Au went to have a meal with the applicant and his friend. Thereafter, Au went back to her family's home. At about 1 - 2 p.m. the applicant came to look for her. The applicant was not behaving normally at the time. He asked her to go out and have a talk with her but she refused and went into her room. The applicant then kicked open the door and told her to strip which she refused. He then kicked her on the face and took her outside the flat to the corridor. He asked her if she was going to tell him everything. When Au kept quiet, the applicant asked her if she believed he would throw her downstairs. Au told him to do that if he had the guts. The applicant then tried to take off her clothes and that resulted in a struggle. In the end the applicant lifted Au over the balcony but she gripped with her hands on the railings of the balcony to prevent herself from falling. While she was in this precarious position, the applicant stood back and asked her again if she was still hiding things from him. Then at one stage, the applicant stepped forward to try to support Au but then he changed his mind and stamped on her hands several times. What the applicant did was witnessed by residents of the same block on the upper floors. At that time an off duty police officer on the 20th floor heard the noise and saw Au dangling outside the railings on the 17th floor. Au was rescued before the emergency services arrived while the applicant himself went to the 18th floor and jumped on to the railings and sat there. He was shouting and appeared to be very upset. But members of the emergency services managed to drag him off the railings and subdued him and put him under restraint.

5. The applicant's evidence was that he did not intend to kill Au, but he had been taking "ice" so much so that he became more and more exhausted and started to hear voices. After Au returned from the Mainland, he began to have hallucinations and hearing voices but he did not visit a doctor. He said he believed he was being followed and watched. He did not remember what he did to Au on 18 January 1999, but as to what happened on 19 January 1999, he said he heard voices telling him to drag Au outside to take off her clothes and to put her on show to the public. He said he remembered he kicked open the door dragging Au outside to the corridor. At the corridor, he said he saw an old woman who told him that Au had betrayed him and he should strip her and throw her out. He did that and Au hanged on to the railings. The woman then told him not to pull Au up. That was why he stepped back. When he heard the voices telling him to throw her over the railings, he knew he was told to kill her and he obeyed the voices. Two psychiatrists examined the applicant after he was arrested. Dr Yuen was of the opinion that the applicant was capable of forming an intent to kill "although the decision was based on a wrong judgment resulting from a mental disorder." Dr Yuen also said that the reason why the applicant wanted to throw Au down from the 18th floor was because the applicant was angry with her. Dr Yuen said the applicant knew what he did was wrong and he knew if Au did fall to the ground he would have thrown himself out and killed himself as well.

6. Dr Chung, the psychiatrist called by the defence, was of the opinion that "the applicant's action was dictated by abnormal thinking process and perception. The applicant could not control his behaviour voluntarily." Dr Chung did not think the applicant was capable mentally of forming an intention to kill at the material time. He added that there was no doubt that the applicant's state of mind was disordered and what he did on 19 January 1999 was dictated by an abnormal process and therefore it follows, he was not capable of forming the necessary intent for the charge.

7. There are two grounds of appeal. In the first ground, Mr Philip Ross for the applicant, submits that the Judge should have directed the jury on the involuntariness of the applicant's acts of lifting Au over the railings and stamping on her hands and if these were not his voluntary acts, he should be acquitted.

8. The second ground is that the Judge should have also directed the jury on the verdict of not guilty by reason of insanity. Mr Ross submits in essence that there was evidence that the applicant did what he did because of his delusions and that was not his "willed" act. There was evidence that the applicant was suffering from psychosis induced by taking "ice" and that caused his delusions and he did not know the nature and quality of his acts at the material time. "Ice" induced psychosis, it is submitted by Mr Ross, is a disease of the mind, and therefore it was wrong for defence counsel at the trial to concede that insanity was not a defence.

9. Mr Lee for the respondent submits that the question of whether the applicant's acts were "willed" acts is very much dependent upon whether the applicant was capable of forming the necessary intent at the material time. If the applicant was capable of forming the intent to kill when he lifted Au and later stamped on the hands of Au, his acts were not out of his delusions and were his voluntary acts. The jury, it is submitted, obviously concluded that the applicant did have such an intent otherwise they would not have returned a verdict of guilty. As to the second ground, Mr Lee submits that the evidence does not reveal a case of insanity within the meaning of the M'Naughten Rules and the Judge was fully justified in not leaving that issue to the jury.

10. We think that the two grounds can be dealt with together. There was no evidence that the applicant at the material time was in a state of automatism by reason of his "ice" induced psychosis nor was there some occurrence of an incident outside the applicant's control, such as, muscle reflex as in the case of R v Ryan (1967) 121 CLR 205 or unforeseen brake failure as in the case of Burns v Bidder [1966] 2 QB 227.

11. According to Dr Yuen and Dr Chung, although the applicant's judgment was markedly impaired and he was labouring under a defect of reason, the applicant was not intoxicated at the time and there was no evidence of any memory impairment. The applicant told Dr Yuen that he had attempted to throw his girlfriend down from the 18th floor and he was very angry at the time because he had an irrational belief that his girlfriend had betrayed him. Dr Yuen's conclusion was that the acts of the applicant were the applicant's conscious acts i.e. he knew what he was doing and he knew what he did was wrong. Dr Chung's evidence was that the applicant was able to describe the physical nature and the quality of his acts and knew what he was doing to Au at the material time and Dr Chung did not rule out that the applicant knew what he did was wrong. That being so, the applicant's acts must be an act of his choice and not acts he had carried out under his delusions. The only difference in the two experts' opinion was Dr Yuen considered that the applicant was capable of forming the necessary intent to kill despite his defect of reason whereas Dr Chung held the contrary view.

12. In R v Quick [1973] QB 910, the Court of Appeal in England decided what the words "disease of the mind" meant in the M'Naughten Rules. Lawton LJ delivering the judgment of the court said this (at p. 922):

"... Our task has been to decide what the law means now by the words 'disease of the mind.' In our judgment the fundamental concept is of a malfunctioning of the mind caused by disease. A malfunctioning of the mind of transitory effect caused by the application to the body of some external factor such as violence, drugs, including anaesthetics, alcohol and hypnotic influences cannot fairly be said to be due to disease. Such malfunctioning, unlike that caused by a defect of reason from disease of the mind, will not always relieve an accused from criminal responsibility."

13. Earlier in the same judgment, Lawton LJ referred to the case of R v Kemp [1957] 1 QB 339 where Devlin J was of the opinion that a "defect of reason from disease of the mind" whether the condition of the mind is curable or incurable, transitory or permanent would suffice. However, Lawton LJ (at p. 918) was not at all in agreement with that statement of law propounded by Devlin J and he said:

"Applied without qualification of any kind, Devlin J.'s statement of the law would have some surprising consequences. ..."

and then he said:

"... The law would be in a defective state if a patient accused of assaulting a dental nurse by kicking her while regaining consciousness could only excuse himself by raising the defence of insanity."

14. The applicant's defect of reason was the result of his "ice" induced psychosis and on the expert's evidence, would subside spontaneously on withdrawal of the drug. It was transient in nature and caused by an external factor. There was nothing internal in the applicant's body that is a disease. In our opinion a mere temporary disposition or phenomenon displayed by the applicant as a result of taking drugs without more, cannot be regarded as a "disease of the mind" within the rules. It is different from that which had been developed into a mental condition similar to schizophrenia and continued despite stop taking drugs. The condition of the applicant does not qualify within the definition of "disease of the mind". In our judgment, there was insufficient basis for the question of insanity and the question of the involuntariness of the applicant's acts to be left to the jury and the Judge was correct in not doing so. That being so, the complaint against defence counsel at the trial on his concession is unfounded.

15. The question was whether the applicant had the intent to kill. The Judge had correctly directed the jury that they should consider whether the applicant was capable of forming that intent having regard to the medical evidence regarding the disordered state of his mind at the time. There is no ground for the verdict of the jury to be disturbed. The application for leave to appeal against conviction is dismissed.

16. On sentence, the applicant was sentenced to 6 years imprisonment.

17. The only ground of appeal is that the sentence is manifestly excessive and wrong in principle. It is submitted that the offence was not premeditated and disproportionate weight was given to retribution and deterrence. Also, it is submitted that the Judge had failed to give adequate weight to the actual injuries to the complainant, the attitude of the complainant to the applicant and the applicant's state of mind at the time of the offence.

18. The Judge in his sentencing remarks, reviewed the two psychiatrists' evidence. He was conscious of the fact that no psychiatric treatment had been recommended because the applicant had fully recovered. He was aware that the applicant's behaviour at the material time was based on a wrong judgment resulting from a mental disorder. Nevertheless, the jury by their verdict plainly accepted that despite his mental problem, the applicant had formed the necessary intent to kill the complainant at the material time. The Judge after reviewing cases of manslaughter by reason of diminished responsibility by an analogy said:

"One principle which derives from those cases is that I am required to pass a determinate sentence of imprisonment, the length of which depends upon two factors: my assessment of the degree of the defendant's responsibility and my view as to the period of time, if any, for which the defendant will continue to be a danger to the public. The latter consideration does not arise in this case unless - and I stress that word - the defendant should take the drug 'Ice' in future.

As to the former consideration, the facts of this case plainly reveal some reduced responsibility on the part of the defendant for the act itself, if not for his drug taking, which ultimately led to it. But, that said, since he retains a degree of responsibility for the attempted killing, it seems to me that an element of retribution and deterrence is required in the sentence which I am about to impose. It goes, I think without saying, that in my view a probation order is wholly inappropriate.

There can be no getting away from the fact that the defendant attempted to take a life by throwing a young lady over an 18th floor balcony, and for that, given all the particular and unusual circumstances of the case, and bearing in mind the attitude of the defendant's girlfriend, the appropriate sentence in my view is one of six years imprisonment ... "

19. In our view, the Judge had considered all the relevant circumstances of the case. So long as the applicant did intend to throw the complainant over the balcony to kill her, no matter what state of mind he was in at the time, the degree of criminal responsibility cannot be taken lightly. The fact that the complainant did not suffer serious physical injuries as a result of the applicant's acts does not lessen the trauma she had suffered. It must be remembered that if she had not been able to hold on to the railings despite the applicant tramping on her hands, the result would have been fatal. The Judge had taken into account that the applicant poses no danger to the public because of his recovery and if that were the case, a sentence heavier than 6 years might have been imposed by the Judge. We do not see in the circumstances of the present case the sentence of 6 years imprisonment can be regarded in any way as manifestly excessive. We refuse the application for leave to appeal against sentence.

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