The Queen v. Lo Pun Man

In the Court of Appeal

1986 No. 320
(Criminal)

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BETWEEN

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Coram: Hon. Li, V-P., Hon. Silke, J.A. & Hon. Power, J.

Date of hearing: 2nd January 1987

Date of delivery of judgment: 25th February 1987

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JUDGMENT

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Power, J.

1. The applicant was charged with the murder and robbery of Madam Cheng Kau. He pleaded not guilty to both charges and, after trial by jury, was found guilty and sentenced to death and to imprisonment for 9 years on the robbery count. He now seeks leave to appeal against the conviction on the murder charge and against the sentence of 9 years on the robbery charge.

2. On the latter charge his grounds of appeal, which he drew himself, simply stated that he had been led astray by undesirable elements and that his sister and mother are both sick and need money for medical expenses. He stated that he feels remorseful and considers that the sentence imposed is too severe. Mr Keane, who appeared with Mr Ng for the applicant at the original hearing before us, has not yet addressed us on that application.

3. The grounds of appeal against conviction on the murder charge were:

1. The learned trial judge erred in law by omitting to direct the jury:

a) as to the meaning of "inherent causes" in the context of section 3 of the Homicide Ordinance; and

b) that a personality disorder arising from any cause, other than the temporary effects of drink or drugs, constitues an "abnormality of mind” for the purpose of the said section.

In the course of the hearing before us Mr Keane, by leave, added a further ground as follows:

2. Further or alternatively, the learned trial judge misdirected the jury that when considering whether the defendant had an abnormality of mind (at the time of the incident of killing) resulting in substantial impairment of his ability they should ignore any effect of drugs or withdrawal from drugs.

4. The facts disclosed that in the course of a robbery the applicant struck the deceased 8 times on the head with hammer which he had apparently found on the premises. As a result of the blows the deceased suffered a heart attack, which was undoubtedly caused by the attack carried out upon her, and she died.

5. There was no issue at the trial with regard to the robbery or the killing. Indeed the applicant formally admitted that he had killed the accused. The defence was one of diminished responsibility under section 3 of the Homicide Ordinance. This section reads as follows:-

"Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he had suffered from such abnormality of mind (whether arising from a condition of arrested of 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.”

This defence rested largely upon the evidence of Dr William Green who said that the applicant had a very severe personality disorder combined with low intelligence, which resulted, among other things, in a reduced impulse control, and which, taken together with his drug addiction, constituted an abnormality of the mind. He said that this abnormality was both inherent and that it arose from a condition of arrested or retarded development of mind. He went on that, when considered in the light of section 3 of the Homicide Ordinance, the applicant was a border line case but that he was satisfied that his. actions at the time of the killing did fall within the terms of that section.

6. The prosecution called two psychiatrists, Dr Ip Yan Ming and Dr Yu Wai Tak. Dr Ip said that the intelligence of the applicant functioned at a border line level but that he was not significantly retarded. He said that he did not suffer from an abnormality of mind arising from either a condition of arrested or retarded development or from any inherent cause. Indeed, the doctor said that the applicant had no abnormality of mind of any kind and that he considered that the diagnosis of personality disorder was a “highly subjective” one which described a deviation from social norms rather than a mental illness. Dr Ip did concede that, while normally a personality disorder would not amount to an abnormality of mind, a severe personality disorder could amount to such abnormality.

7. Dr Yu said that the applicant had no abnormality of mind and no personality disorder. He also conceded that a personality disorder could amount to an abnormality of the mind.

8. The lines were thus drawn between the prosecution and the defence. The defence was contending that the applicant had a personality disorder which, as well as being inherent, arose from arrested or retarded development of mind and which, when taken with his low intelligence, amounted to an abnormality of mind. The prosecution contended that the appellant, although of low intelligence, was not suffering from any abnormality of the mind or, indeed, from any personality disorder and further that a personality disorder would not, unless extremely severe, amount to an abnormality of the mind.

9. It is fair to say that the evidence of the doctors called by the prosecution was not altogether clear in the latter regard. Both appeared to be saying that, while a personality disorder might be evidence of a mental illness amounting to an abnormality of the mind, if diagnosis of the patient established only that there was a personality disorder and uncovered no underlying mental illness, then the disorder could not be classed as an abnormality of the mind.

10. We deal firstly with ground 1(b) which can be disposed of shortly. Mr Keane, while reserving his position in case this matter should be taken further, conceded that this ground was not arguable before this Court given the decision in R. v. Lau Man-cheung[1].

11. Turning to ground 1 (a). Mr Keane argued that the trial judge had erred by omitting to direct the jury as to the meaning of “inherent causes”. He submits that not only did the judge fail to direct the jury as to the meaning of “inherent” but that what he did say to them, in effect, misdirected them because it suggested both that an inherent cause would only be established if it sprang from genetic factors and that the evidence before them was to this effect. Mr Keane submits that, while this was the evidence of the doctors called by the prosecution, it was certainly not the evidence of Dr Green. It was plain from his evidence that he considered that both genetic factors and psycho-social deprivation could combine to produce an inherent cause of the type referred to in section 3. Mr Keane submits that the judge, when directing the jury with regard to Dr Green's evidence, emphasized what he said about the part which genetic factors might play in establishing an inherent cause and, by ignoring his evidence that psycho-social deprivation (environmental factors) also played a part, in effect, withdrew that evidence from the jury. He complains particularly of the following passage:

“Doctor Green says that the low intelligence of the defendant is from arrested or retarded development and he says that the personality disorder is inherent and he says that from the defendant's physical appearance and emotions it is clear that there is some genetic matter to be taken into account. You might conclude that if there is, if you do find there is abnormality of mind, you might conclude, it is a matter for you despite what some of the experts say, you might conclude if you find there is abnormality of mind, you might conclude that the physical appearance does indicate that it is inherent.”

Mr Keane goes on that the judge here emphasized the genetic factor, while making no mention of the environmental factors, and underlined this misleading emphasis by referring immediately thereafter to the evidence of Dr Ip where he spoke of low intelligence arising "from genetic causes inherited because of both parents perhaps being a little bit subnormal or lower than the usual”. Mr Keane submits that by so directing the jury the judge was suggesting that social environment would not give arise to an inherent cause and that the passages amounted to a direction to the jury that an inherent cause had to be genetic and that the evidence was to that effect. The judge should, he says, have directed the jury that an inherent cause could arise from factors other than genetic ones, that there was evidence that it did arise from other factors and that what they, the jury, must really concern themselves with was whether the cause was inherent, i.e. build in, and that, if it was inherent, it did not matter whether it arose from genetic or environmental factors.

12. We do not consider the above arguments present valid grounds of appeal. The words “inherent causes” are ordinary English words which have not been given any specific overlay of legal meaning and must be given their ordinary meaning by the jury. This being so it was unnecessary for the judge to have given any explanation as to the words themselves.

13. We reject the suggestion that the judge misdirected the jury as to the evidence. It is true that in the passage complained of he commented upon only one aspect of Dr Green's evidence. He did not, however, tell the jury to disregard his other evidence. Indeed he had made it abundantly clear at the beginning of his summing up that the jury were to give full consideration to all of the expert evidence.

14. It is unfair to select the comments set out above without placing them in the context of the summing up as a whole. Dr Green had said in his evidence that an inherent cause could arise from either genetic or environmental factors or a combination of both. His evidence was clear in his regard. The judge was at pains to tell the jury that they should consider all of the evidence placed before them by the medical experts. He said:

“you look at what they said and decide what weight you give it to them. I think it is quite clear that all the experts gave evidence in good faith. And Indeed, there are same indications that the divisions of opinions between them are a matter of controversy not only in Hong Kong but perhaps elsewhere, particularly a division of opinion as regards personality disorders and anti-social personal activity.”

15. The judge made it plain to the jury that it was for them to accept and to act upon whatever evidence from the medical experts in their view deserved credit. It is true that later in his summing up, when commenting upon the appearance of the applicant he referred to genetic factors as being important when examining the question of inherent cause but he in no way suggested that the jury were not entitled to take into account the environmental factors suggested by Dr Green. Indeed, immediately after the passages complained of, the judge went on to remind the jury of Dr Yu's evidence where he had said, “a personality disorder could arise from inherent causes but that the social environment plays a larger part …… "

16. This ground of appeal fails.

17. Mr Keane finally argues that the learned trial judge misdirected the jury when he said:

“I tell you, members of the jury, when considering whether the defendant had an abnormality of mind at the time of this incident, resulting in substantial impairment of his ability you would ignore any effect of drugs or withdrawal from drugs."

18. Mr Keane submits that this was a misdirection. He refers firstly to R. v. Martin Charles Fenton[2]. The headnote in that case states:

“Though a case may arise where the defendant proves such a craving for drink or drugs as to produce in itself an abnormality of mind within the meaning of section 2(1) of the Homicide Act 1957 sufficient to form the basis of a defence of diminished responsibility, self induced intoxication cannot of itself produce an abnormality of mind due to inherent causes."

19. The trial judge in that case had told the jury to ignore the effect of alcohol and the Court of Appeal held that he was right in so doing. The Lord Chief Justice delivering the decision of the Court said, at 263:

“We recognize that cases may arise hereafter where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind; but that is not proved in this case. The appellant did not give evidence and we do not see how self-induced intoxication can of itself produce an abnormality of mind due to inherent causes. Accordingly, the judge was not guilty of a misdirection when he told the jury to ignore the effect of the alcohol.”

20. This decision did no more than leave open the possibility that a case might arise where an accused would establish that a craving for drink or drugs was such as to produce in itself an abnormality of mind.

21. R. v. Gittens[3], to which we were next referred, approved of the approach adopted by the trial judge in R. v. Fenton². The Chief Justice Lord Lane, who delivered the judgment of the Court, said, at 256:

“Where alcohol or drugs are factors to be considered by the jury, the best approach is that adopted by the judge and approved by this Court in R. v. Fenton. The jury should be directed to disregard what, in their view, the effect of the alcohol or drugs on the defendant was, since abnormality of mind induced by alcohol or drugs is not, generally speaking, due to inherent causes and is not therefore within the section.”

While the judgment made no mention of the possibility adverted to by the Court of Appeal it is submitted that it must be taken to have approved of that statement. The defence can, as the law stands, do no more than say that it is “left open” that a case may arise where an accused proved a craving for drugs so strong that it produces an abnormality of mind. Whether or not that be so is a matter to be determined on the evidence in each case.

22. As to evidence of “craving”, Mr Keane relied upon the applicant's addiction to dangerous drugs, and referred in particular, to two passages. The first, which occurred in the evidence of the applicant himself, reads as follows:-

"Q. Did you realise that the lady might be seriously injured or killed by what you had done?

A. No.

Q. What was you condition so far as drugs were concerned at the time; first of all, at the time of this incident, were you to any extent at all affected by the drugs which you bad consumed?

A. Yes.

Q Can you just pause for n moment, before you do, I should ask you what was the last occasion before this upon which you had consumed dangerous drugs?

A. On the evening of the 6th of January.

Q. At what time?

A. About 6:30 p.m.

Q. Yes, and at about what time?

A. On the morning of the 7th of January YUEN Kam-man gave me some white powder to smoke but I didn't find it enough.

B. So at the time of this incident in the flat, what was your condition in relation to drugs or lack of drugs?

C. Well, it was due to the effect of drug - it was due to the insufficiency of drug that caused me to have the intention to look for money to buy more dangerous drugs for consumption.

D. Yes, now, the fact that you hadn't had sufficient drugs for your needs, did that have any effect that you could sense upon your body or on your mind?

A. I felt tired.

Q. Well, anything else?

A. Because of the insufficient consumption I have the feeling of vomiting.

Q. Anything else?

COURT: Feeling of - ?

MR KEANE: Vomiting, my Lord.

A. I wished to vomit.

COURT: Yes.

Q. How about your head and brain, how was that feeling?

A. I was thinking of white powder all the time.

Q. Right. Well, when you met YUEN Kam-man, what did you do with the money which you had stolen?

A. All the money was used in buying white powder."

The second in the evidence of Dr Green:

“Q. Just for the record, you were in court throughout the time he gave his evidence in chief and under cross-examination?

A. Yes, I was. I was interested in had he ever tried to give up the heroin and he said that he had done but that he felt he was unable to cope with the withdrawal effects of the white powder and he described in some detail in a clinically accurate way the withdrawal symptoms that he experienced whenever he tried to give it up.

Q. The symptoms he described were consistent with withdrawal symptoms?

A. Yes.

Q. He appeared to know what they were?

A. That's right …………”

Mr Keane submitted that this evidence, added to the evidence that the applicant had been addicted to heroin for a number of years, that he persistently committed offences to obtain money to purchase dangerous drugs and that he was fearful of the awful experience of withdrawal, was evidence that should have been left to the jury of a craving such as might produce an abnormality of mind of the kind referred to in R. v. Fenton².

23. An examination of the evidence, in our view, wholly defeats this submission. The material evidence in this regard is that of the applicant himself. There is nothing in that evidence to suggested that he was driven to commit the offence by “such a craving” for drugs as was mentioned in Fenton². Indeed, this was never suggested to Dr Green or the other doctors. Given the evidence of the applicant, this is not surprising. We are satisfied that, in the circumstances of this case, the trial judge was quite right when he told the jury to ignore the effect of drugs and the withdrawal from drugs.

24. We find no substance in any of the matters raised on behalf of the applicant and the application is therefore, dismissed.

Mr Kilgour (Crown Prosecutor) for I the Respondent.

Mr Desmond Keane, Q.C. & Mr. Thomas Ng (D.L.A.) for the Applicant.

[1]  Criminal Appeal No. 74, 1986

[2]  (1975) CAR 261

[3]  (1984) 3 ALL ER 252