Chan Chi Kit v. R.

CACC000532/1991

IN THE COURT OF APPEAL

1991, No. 532
(Criminal)

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Coram: The Hon. Power, V-P, Mortimer & Kaplan, JJ. in Court

Date of hearing: 4 May 1993

Date of judgment: 4 May 1993

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J U D G M E N T

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Mortimer. J.

1. The applicant was convicted of two counts of murder and sentenced to death on the 25th of October 1991 after a trial lasting some 11 days before Ryan J. and a jury.

2. In the course of the trial, the defence was raised that the applicant was of diminished responsibility at the time of the killings. There were other issues but it is only the issue of diminished responsibility which arises on this application. The facts are simple and horrifying. The applicant met a married lady. He felt in love with her. And consequent upon that, she split up with her husband and her husband was left looking after her young daughter. In due course, she became very troubled by the separation from her daughter and her husband was suggesting that he may take her to Taiwan. In order not to lose her daughter, she attempted to split up with the applicant and she returned to live with her husband and daughter. But the applicant and she continued to see one another. She did not face up to telling the applicant that she was splitting up with him and she left a tape recording telling him in somewhat garbled way what was going to happen.

3. She moved back to her husband on the 25th of August. On the 23rd of September, the applicant and the lady spent the night together and during that evening, he produced a knife. She was concerned thinking at that time that he may harm himself. In fact, on the 25th of September, the accused went to the husband's flat, the husband and the daughter were there and in a ferocious attack on both of them, he killed them.

4. At trial, his account in evidence differed from that which he had given to the police. His account to the police admitted the killings and admitted that he had the intention to kill when he took the knife. At trial, he gave an account more favourable to himself in which he said there was an argument followed by violence and a fight between them, and that he then went blank and when he woke up found the lady's husband and the child were dead. He was injured and in due course, was arrested.

5. At trial, the issue of diminished responsibility was dealt with and medical evidence was given by three doctors, Dr. Connell who gave evidence for the defence and, Dr. Fan and Dr. Yeung who gave evidence in rebuttal for the Crown.

6. Mr.MacKenzie-Ross, who appears for the applicant, relies upon his second ground of appeal which reads:-

"The learned judge erred in failing to sufficiently direct the jury that the evidence of the doctors called by the Prosecution was incapable of rebutting the opinion of the defence doctor, and in failing to direct the jury that the Crown's psychiatrists were not in as good a position to form an opinion as the defence's psychiatric expert by reason of their not being fully instructed and not having the fullest information available to them, especially the tape recording."

7. Mr. MacKenzie-Ross invites our attention to the cross- examination of the two doctors called for the Crown. In particular, he asks that we consider the cross-examination of Dr. Yeung, in which Dr. Yeung conceded that, in the course of his consideration of this case, he did not have certain information, particularly the transcript of the tape recording, which the lady left the applicant when she was splitting up with him, nor did he see a copy of her statement, nor the statement she had made to the police, nor the post-mortem reports as to the extent of the injuries and a number of other matters. Finally, in the course of that cross-examination, that Doctor that those matters could have affected his findings. In perfectly proper re- examination, he indicated that in spite of those questions and those matters that he had not altered his opinion.

8. Similarly, we are invited by Mr. MacKenzie-Ross to consider some of the cross-examination of Dr. Fan in which he also conceded that those matters could have had some effect upon his opinion. Finally, he was asked, "And your opinion is based on purely what you had and the information available to you", and he answered, "Certainly. We do not make up things."

9. The judge is criticized for not giving a sufficient direction as to the weight the jury should give to that medical evidence. Of course, it is not necessary for this Court to say that the weight which the jury gives to evidence called before them, is entirely a matter for the jury. The judge in reminding the jury of the evidence must leave for them the proper issues in the case. The fact that this is expert evidence makes no difference. What the jury accept and reject is a matter for them in expert evidence is well as any other evidence.

10. In the course of his summing up, the judge, first of all, left the issue on diminished responsibility perfectly properly to the jury. Then he reminded the jury with some care of the evidence given by Dr. Connell for the defence. He reminded them of the opinion he had expressed, the basis of that opinion and also some of the matters which the jury might have thought would devalue his opinion. For example they were reminded that it was his view that the fact that the statement from the accused contained a statement of intention to kill did not affect his opinion on the matter, and the judge properly summarized his view that it was more likely than not that the accused on the 25th of September - the date of the killing - was suffering from diminished responsibility.

11. The judge turned to the other two psychiatrists, dealing first with Dr. Fan. He reminded the jury in sufficient detail of what he had not seen and not heard before he gave his evidence when he was forming his opinion about the case. And he reminded the jury that that witness had not read all the witness' statements as Dr. Connell had done, nor had he heard the tape, nor seen the transcript, but properly reminded them that he had seen the accused's parents. In particular the judge said he agreed that if he had seen the transcript or heard the tape, it could have been of assistance to him and that it could have been of assistance if he had seen the post-mortem report. That also could have helped him in his assessment. He then turned to the further evidence that doctor gave.

12. So far as Dr. Yeung was concerned, he also reminded the Jury of similar matters that had been put to him in cross-examination. Finally, he reminded the jury of the doctor's evidence that those matters, if he had seen them or considered them, could have affected his findings.

13. By those directions, it seems to this Court that the judge fully reminded the jury of not only of the issues in relation to this matter that they had to consider, but also sufficiently of the evidence in the cross-examination and of the opinions that those doctors had expressed. The jury in the result rejected the defence. The directions they were given, in our view were proper. They were properly reminded of the evidence.

14. For these reasons this application for leave to appeal is dismissed.

Representation:

Mr. David MacKenzie-Ross (Chan & Kong) for the Applicant.

Mr. Michael N. Holmes, Senior Crown Counsel for the Crown.