HKSAR v. Lau Kin Hang

CACC 357/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 357 OF 1997

(ON APPEAL FROM HCCC NO. 402 OF 1996)

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BETWEEN

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Before:  Hon Ma CJHC, Stuart-Moore VP and Tang JA in Court

Date of Hearing: 2 August 2006

Date of Judgment: 2 August 2006

Date of Reasons for Judgment: 15 August 2006

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REASONS  FOR  JUDGMENT

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Hon Tang JA (giving the reasons for judgment of the Court):

1.The appellant was convicted of murder on 13 June 1997 and sentenced to life imprisonment.  He was sixteen years old at the time of the offence and, following the amendment contained in section 2 of the Offences Against The Person Ordinance, Cap. 212, he successfully appealed against sentence.  On 8 April 1998, this court substituted the ‘life’ term with a sentence of 29 years’ imprisonment (CACC 357/1997, unreported, 8 April 1998).  The Chief Executive has referred the case to this court under Section 83P of the Criminal Procedure Ordinance, Cap. 221, such that “the case shall then be treated for all purposes as an appeal to the Court of Appeal” by the appellant.

2.At the conclusion of the hearing on 2 August 2006 having, effectively, only needed to hear submissions from Mr Saw SC on behalf of the respondent, we allowed the appeal and ordered a re-trial on a fresh indictment for murder.

Background

3.The appellant pleaded not guilty to murder on arraignment but guilty to manslaughter.  The trial was concerned with the defences of provocation and diminished responsibility.

4.This appeal concerned only the defence of diminished responsibility.

5.The deceased, Ms Ng Yuen-to, was a 16-year-old girl.  She had been savagely beaten about the head and chest.  The force of the blows to her chest had ruptured her right pulmonary artery and caused a deep tear to the right lobe of the liver.

6.Also, a ligature made from a wire coat hanger had been placed around the deceased’s neck.  She had also been manually strangled and suffered multiple bruises and abrasions to the whole of her head.  According to the undisputed forensic evidence, the ligature was applied to the neck either shortly before death or within minutes thereafter.

7.The cause of death was given as “pressure on the neck and/or chest injuries”.

8.The evidence regarding the killing came principally from the appellant whose interview by the police had been recorded on video.  The first interview took place on 26 June 1996 at 14:05 (“26 June 1996 1^st interview”), one day after the killing.  The appellant also gave evidence at the trial.

9.According to the appellant, the deceased had been his girlfriend for just over a month “about October to about November” of 1995 (See transcript at page 20H).  He had no sexual relationship with her.  They broke up because the deceased:

“… complained that I had little time with her because I always went out with my friends and my schoolmates for seeking fun”.  (Transcript page 20P).

They came back together, however, in May 1996, when he asked her on the telephone whether she could be his girlfriend again.  She said she wanted two days to think about it.  He called her again at the end of the two days and she said ‘all right’.  They met on 20 June 1996, which was one day after his sixteenth birthday.  According to the appellant, the deceased told him that she would give him three months’ time to see whether the relationship would work out.  He arranged to see her on 25 June 1996 which was a holiday for him.

10.They met at about 11 o’clock at Sham Shui Po MTR Station.  As it was too early to go to a movie, the appellant bought some food and took the deceased to the sushi shop where he worked, they chatted for about 15 minutes, and then they went to Hardee’s at the Dragon Centre, where she bought something to eat.

11.Then the deceased told the appellant that she had something personal to say to him, and asked him if he could find a quiet place.  The appellant suggested going to the vacant toilet on the ground floor of the building where he lived.  He said it was quiet and clean.  It was there that she told him:

“How about we break up?”

12.She said she had fallen in love with another boy and, although that boy was less good-looking than the appellant, he could spend more time with her, unlike the appellant who did not have much time for her.

13.This is what the appellant said in evidence:

“A.    When she had finished, I said, ‘A few days ago, you said that you would give me three months’ time, but now, you say something like this to me.  Why is that?’  I also asked her, ‘Are you playing me?’  She then said, ‘Yes, I am playing you’.  I then asked her why she was treating me in that way.  She then said, ‘Yes, what is the year now?  If you don’t like something, you just don’t like it.  We go together in harmony, otherwise, we break up’.  I was so angry that I hit her head several times.  After hitting her, I asked her again, ‘Are you really unwilling to be with me?’  She then said loudly, ‘Yes’.  At that moment, I was so angry that I could not control myself.  I grabbed her neck.  I did not know why I would say something like that to her.  I told her that I’m really in love with her.  I grabbed her neck for about three to four minutes.  Then, I became – then my mind become clearer and I let go my hand.  I saw her fall onto the floor.  Then I became frightened.  I was so frightened that I did not know what to do.  I just left.  I went back to the sushi shop which I was working.” (Appeal bundle p. 87N)

14.However, in the 26 June 1996 interview at 18:26 (“26 June 1996 2^nd interview”), the appellant told the police that after he had strangled the deceased until she collapsed to the floor, he removed all the deceased’s clothing which he subsequently discarded.  When he was asked about the ligature around the neck of the deceased, he said that he had put it there:

“… to make it seem to be throttled to death by somebody” (Appeal Bundle p. 49).

15.When asked why he had removed her clothes, the appellant said it was to avoid contact evidence.  He also said that later that evening, he told two of his friends (Ah Lung and Ng Chin-pang) that he had probably killed someone earlier that day.  All three of them went to the public toilet in Kiu Kiang Street and observed the body of the deceased.

16.When the appellant was interviewed again on 22 July 1996, at the initiation of his legal advisors, he gave a different account.  The appellant said that the decision to strip the deceased and place the wire coat hanger around her neck was made not at the time he killed her but later that evening when he returned to the scene with his friends.  That was done so that those investigating the death would think that the deceased had been sexually assaulted by her attacker.

17.The unchallenged evidence of the pathologist was clear and unambiguous, the ligature round the deceased’s neck was placed there either shortly before death or within minutes thereafter.

18.On the version of events recorded in 26 June 1996 2^nd interview, it would appear that the appellant recovered very quickly from the killing and then went about destroying evidence in a very careful way to avoid detection.

19.The appeal centred around the judge’s direction on the diminished responsibility.

20.Section 3(1) of the Homicide Ordinance, Cap. 339, provides the defence of diminished responsibility and reads as follows:

“3. Persons suffering from diminished responsibility

(1)   Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”

21.Psychiatric evidence was given by Professor Wong Chung-kwong (“Professor Wong”) on behalf of the defence, and Dr Yuen Cheung-hang (“Dr Yuen”) on behalf of the prosecution.  Each psychiatrist had interviewed the appellant and his immediate family and had obtained a similar history of childhood trauma and abuse.  Where they differed was on the long-term effect of the appellant’s childhood experience.  As the judge put it in his summing up:

“… Dr YUEN says, ‘Well, I found he had lots of friends, yes, he had flimsy relationships with them but you do at 16.  He had girlfriends, he had hobbies, he had sports, he had a job, he was getting ahead in it, he had gone to the Kwun Tong Institute to try and further his studies’, he said, ‘From all this, I deduce he is not retarded’.”

22.On the other hand, the evidence of Professor Wong was that the appellant suffered from an abnormality of the mind, which was brought about by his childhood experience and his extreme anger at the time.

23.Professor Wong said at the trial that:

“… from the developmental perspective I would say he is psychologically retarded at a much younger age and I would say psychologically is no more than just an 8 or 9 year old child.” (Appeal bundle p. 161E)

24.Whereas according to Dr Yuen:

“I regarded him psychologically – meaning intellectually, emotionally and personality -- and socially – he was age appropriate – he’s appropriate to his chronological age, at his age 16.” (Appeal bundle p. 245J)

25.His view was that, despite the appellant’s unfortunate childhood which could have given him mental disorder, he found no sign of it.  His evidence was that if the appellant was suffering from any abnormality, it would have manifested itself earlier.

26.It is in the context of such evidence that Mr McCoy SC submitted in his ground of appeal that the judge had misdirected the jury.

27.This is what the judge said in the summing up:

“The third part is, did it substantially impair the accused’s mental responsibility for his acts in doing the killing? ‘Substantial’ is probably the most difficult part of that definition, because if you approach substantial in a common sense way, it is an ordinary word, you give it its ordinary meaning. It does not mean trivial, it does not mean total, it does not mean complete impairment, it does not mean the barest minimum of impairment. It must be what in your everyday common sense approach to life you would say is substantial. So you will have to decide really, was there an abnormality of the mind and if there was, was it so strong, so powerful, so substantial as to impair; affect, take away, the accused’s mental responsibility for his acts.

Mr. Halley [prosecuting counsel] used the definition to be sufficient to be a substantial impairment you would have to find in common everyday popular terms that he was partially insane or on the borderline of insanity and that is probably another good test for you.

The accused gives you little in respect of this particular issue because this is one which is decided on the medical evidence. As to whether or not there was an abnormality of the mind, it is a question of science, so the question of the expert testimony. Whether it is substantial is for you as a common sense approach.” (Appeal bundle pp. 25L-26K) [Emphasis added]

28.The objection to this direction is that the judge appeared to have adopted Mr Halley’s submission that substantial impairment meant that:

“… you would have to find in common everyday popular terms that he was partially insane or on the borderline of insanity …”.

29.In R v Seers [1984] 79 Cr App R 261 at 265, the English Court of Appeal considered as inappropriate a direction that the test to be applied to determine whether the appellant was suffering from diminished responsibility was whether he could be described in popular language as partially insane or on the borderline of insanity.  There the appellant suffered from a depressive illness and the direction was inappropriate because:

“… however seriously depressed (the jury) might have thought this appellant, with whatever effect that might have had on his mental state, they would not consider him to be partially insane or on the borderline of insanity.  This being so they were bound on the judge’s direction to find that the appellant had not made out the defence of diminished responsibility.”

30.Here, with respect to the judge, the direction was wrong because, on the evidence of Professor Wong, the abnormality of mind relied on by the appellant may not have been such which as a matter of common sense, the jury would readily consider to be partial insanity or on the borderline of insanity.

31.In Rose v The Queen [1961] AC 496 at 507, an appeal from the Bahama Islands, the Privy Council regarded a similar direction to be:

“… an undue limitation of the wide words of the section”.

32.The judge should have directed the jury that if they were satisfied that the appellant had the psychological age of an 8 or 9-year-old child as a result of his childhood experiences, then they should determine whether that abnormality of mind had substantially impaired his mental responsibility for the killing.

33.As Lord Parker CJ said in the R v Byrne [1960] 2 QB 396 at 404:

“… Inability to exercise will-power to control physical acts, provided that it is due to abnormality of mind from one of the causes specified in the parenthesis in the subsection is, in our view, sufficient to entitle the accused to the benefit of the section; difficulty in controlling his physical acts depending on the degree of difficulty, may be. It is for the jury to decide on the whole of the evidence whether such inability or difficulty has, not as a matter of scientific certainty but on the balance of probabilities, been established, and in the case of difficulty whether the difficulty is so great as to amount in their view to a substantial impairment of the accused’s mental responsibility for his acts.”

34.We have concluded that the judge, when directing the jury on the meaning of “substantial”, unfortunately fell into error when he agreed with Mr Halley that the jury, in “popular terms”, would have to find as “another good test” that the appellant was “partially insane or on the borderline of insanity”.  In our opinion, it would generally be advisable that no such direction is ever given in a case of diminished responsibility.

35.To have given this direction in the present case was a material misdirection and, accordingly, the appeal must be allowed.

36.This was not a suitable case in which to substitute a verdict of manslaughter.  Mr McCoy wisely did not pursue the argument that the decision of the jury in rejecting the defence of diminished responsibility was against the weight of evidence and unsafe intrinsically. Since we have ordered a re-trial we say no more about the quality of the defence evidence on diminished responsibility save to say that properly directed, it was perfectly open to the jury to find the appellant guilty of murder.

37.We believe, in the circumstances of this case, that the interests of justice required a re-trial notwithstanding the long lapse of time and the fact that the appellant has been in custody since 1996.

38.For the above reasons, we allowed the appeal against conviction and ordered a re-trial, the appellant to remain in custody until such time as this takes place.

Mr D G Saw, SC, DDPP, and Ms Anna Y K Lai, SGC, of the Department of Justice, for the Respondent.

Mr Gerard McCoy, SC, instructed by Messrs Haldanes, assigned by Director of Legal Aid, for the Appellant.