William Patrick Wilson v. The Queen

CACC000567/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 567 OF 1972

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Coram: Full Court (Blair-Kerr, S.P.J., Huggins and McMullin, JJ.)

Date of Judgment: 22 September 1972

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JUDGMENT

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Blair-Kerr, S.P.J.:

1. The appellant is a soldier who, in February 1972, was serving with a battalion of the Irish Guards then stationed at Stanley Fort, Hong Kong. On 27th July 1972 he was convicted of murder, the particulars of the offence being that on 15th February at Chung Hom Kok Road near Repulse Bay Road, he murdered a taxi-driver named TAM Hoi-chuen.

2. There were some 20 stab wounds on various parts of the body of the deceased. The majority of the wounds were inflicted on the chest and arms; but there were also several wounds on the back. Three stab wounds penetrated the lungs, one the heart, and one the liver; and the deceased died within a short time of shock and haemorrhage caused by those multiple stab wounds.

3. It was not seriously disputed that it was the appellant who inflicted the wounds by means of a knife which he had in his possession for some time prior to 15th February. The defence was two-fold: Firstly, that at the material time the appellant was so drunk that he was incapable of forming an intent to kill or to cause grievous bodily harm. Alternatively, that his mental responsibility was substantially impaired by reason of abnormality of mind induced by disease or injury [s.3 of the Homicide Ordinance Cap.339], the allegation being that the disease or injury was caused by the ingestion of large quantities of alcohol for some time prior to the 15th February. The defence submission was that, on either view, the appellant should be acquitted of murder and convicted of manslaughter.

4. The appellant and a number of other guardsmen had been granted leave of absence from their camp from Monday 14th until Friday 18th February; and about 4.45 p.m. on 14th he left camp and made his way into town. During the course of the evening he, and other guardsmen, were drinking together in various places including the China Fleet Club and the California Bar. He slept that night at the Soldiers and Sailors' Home.

5. Next morning, a number of these guardsmen, including the appellant, began drinking about 10 a.m.; and this continued throughout the afternoon and the early part of the evening in the China Fleet Club. Guardsman McCusker testified that the appellant left the party at about 7.30 p.m. saying that he intended going to a bar in D'Aguilar Street called "The Pub".

6. About 7.45 p.m. that evening, a Mr. Rutherford was turning his car into Chung Hom Kok Road from Repulse Bay Road. The headlights of his car were on; and he saw the deceased's taxi stationary at an angle diagonally across the west side of Chung Hom Kok Road near the road junction. In fact the front wheels were against the kerb a few inches from the sign indicating the name of the road. Rutherford saw the deceased lying on the road near the taxi and calling for help. Rutherford also saw another person running away off the road and into the bushes on the east side of the road.

7. The police found a belt of a coat on the road at the scene. It was stained with Group "O" blood which was the same group as that of the deceased. A few days later, in the scrub a short distance from the scene, a knife (also stained with Group "O" blood) was also found. It was common ground that this knife was the appellant's knife and that he took it with him when he left camp on the 14th February. One of his fellow guardsmen saw it in the appellant's travelling bag in his room at the Soldiers and Sailors' Home about 10 a.m. on 15th February.

8. Superintendent Whiteley was in charge of the police inquiries; and he carried out a painstaking and thorough investigation. The appellant was first interviewed at 12.30 p.m. on 24th February. He was told that the police were investigating the murder of the taxi-driver and that his (the appellant's) assistance was requested. When asked where he was on the evening of 15th February, he said that he was with McCusker in the China Fleet Club "until about 20.00 hours" (i.e. 8 p.m.). Of course, it was not in dispute that the appellant had stabbed the taxi-driver at the junction of Chung Hom Kok Road by 7.45 p.m. Whiteley had taken photographs of the belt and the knife; and at the end of the interview, he showed the appellant these photos and asked him whether he recognised the objects shown therein. According to Whiteley, the appellant, for the first time, appeared disturbed and answered "no" in a very weak voice which was in contrast to all his previous answers which had been given in a firm voice. In answer to a further question as to whether he had ever owned a knife similar to the one in the photo, the appellant said "no."

9. Whiteley knew that the appellant had served in Malaya and he told him so and he also told him that he suspected that the knife was of Malayan origin. After an interval of 5 minutes, the appellant suddenly said: "All right, it was me; I stabbed him." When asked who he stabbed, the appellant said: "That taxi-driver; I was on the way back to camp and then I changed my mind. I got the taxi downtown." Whiteley then asked him why the taxi was pointing down Chung Hom Kok Road if he was going back to his camp in Stanley. The appellant said: "I told him to turn right."

10. At this stage the appellant was cautioned. He then made a statement which Whiteley recorded in his note book - a statement which was read back to the appellant and signed by him. It reads as follows:-

"I got a taxi at about 8 o'clock somewhere around the Sing Bar at the Steak House area in Wanchai. I hailed down the taxi. I asked him to take me to Chung Hom Kok Road. When we got there I told him to turn right. I took the knife out and stabbed him there in the taxi. He got out himself and then fell. Then another motorist came around the corner and I just ran into the bushes to the left. I wanted to hide there in the steep hill. I stayed there until Wednesday evening. I stayed in the bushes until I saw police leave. They were within 20 yards looking around but did not see me. I could see police up on the road. When it got dark on Wednesday, I made my way up onto the road. I got a bus from there to Stanley Village and a taxi back to the Soldiers Home. My jacket must still be in the gully. The belt is from that. I dropped the knife just after leaving the road. That's the lot."

This statement was admitted in evidence without objection.

11. While in prison awaiting trial, the appellant wrote a number of letters which were intercepted by the prison authorities. One to a Mrs. McGrath, written on 1st March, contained the following passage:

"I am in prison on a charge of murder which I committed 2 weeks ago. I do not know why I done it and still find it hard to believe what has happened in the last two weeks to me. I had been drinking most of the day when I committed the crime, but cannot say if I was drunk."

In another letter written on 2nd March to a young lady named Yvonne he said:

"I have not been able to think why I done it or had no reason to hurt him in any way. I was drinking a lot that day but not completely drunk."

on 25th April, he wrote to a Mrs. Moore saying:

"I stabbed a taxi-driver for no reason ........ I was very happy had no worries and had plenty of money. ............"

12. The appellant gave evidence on oath. He said that he had been drinking in various places during the evening of Monday 14th February; and he alleged that he did not get to bed in the Soldiers and Sailors' Home till 4 a.m. that he started drinking about mid-day on Tuesday 15th February at the NAAFI in Victoria Barracks, and later at the China Fleet Club where he remained for the greater part of the day. But, according to the record of his evidence, he said that he could not remember what time he left the China Fleet Club, although he said he remembered having a hamburger in the Steak House beside the Sing Bar 75 yards or so from the China Fleet Club. When asked what happened next, he said:

The normal route to Stanley from town would be by Wongneichong Gap Road, Repulse Bay Road and Stanley Gap Road. The appellant said in evidence:

As regards his statement to Whiteley he denied that he told Whiteley that on Tuesday evening he was on his way back to barracks in Stanley.

13. He admitted that the knife found by the police was his; that he bought it while serving in alaysia; and that he always carried it every night since he bought it. Asked why he did this, he said:

He was asked by his own counsel whether after seeing his "hand sticking out in front" and the driver getting out of the taxi, he remembered himself getting out of the taxi. He said:

"I cannot say ... I can't remember."

14. As regards his drinking habits, he said that at 11 years of age he had "taken the pledge"; that he had his first alcoholic drink in England at X'mas 1969 when he was 25; that between December 1969 and May 1971 (3 months after he came to Hong Kong) he drank "very very sparingly" (about 3 pints of beer a week); but that about May 1971 he began to drink "more and more ...... every single day". Asked why, he said:

"There were plenty of reasons: one was boredom and the other that it was nice .... much better than English beer."

He said that for about 7 weeks or so prior to 14th February, on Thursdays, Fridays, Saturdays and Sundays he was consuming between 12-16 pints of beer and 3 or 4 tots of brandy or whisky per day.

15. He was then cross-examined by counsel for the Crown. As regards the alleged 'bamboo gang', he said that he had never seen any of them and had no reason to fear them himself, yet he carried the knife for protection from the bamboo gang and from American negroes.

16. Cross-examined as to his drinking habits, he said that he could walk properly and look after himself in the normal way after consuming any amount of liquor and that he had never had to be carried out during a drinking session. In cross-examination, the figures of "12-16" pints rose to "16-18"! But the appellant then added:

"I don't say 16 pints every single night. I said between 12 and 16 or between 12 and 20 along with may be 6 or 7 shorts ....... But I am just giving an estimated number of what I drank every night."

Asked whether drinking to the extent alleged by him ever affected his military duties, he said:

The cross-examination proceeded thus:

He said that during the 4 months in prison between the time of his arrest and his trial he had only consumed one large bottle of beer, two small bottles and two brandies. Asked if he had found this a hardship, he said:

He was then asked whether he had ever seen a person's hands shaking. He said:

17. The case for the Crown was that, although the appellant and his fellow guardsmen were all fairly heavy drinkers, he did not drink as much as he alleged, and that his health, physical and mental, was not in any way impaired.

18. Other members of the regiment gave evidence. The appellant's company sergeant major (Cleary) said that the appellant was a quiet type, was popular with his colleagues and that he had no problems; that he drank normal amounts of alcohol, not excessively; and that there was nothing unusual about his drinking; that the appellant had not been charged with any breach of discipline; and that if there had been anything of that sort (including disturbances or trouble caused by drinking) he would have known about it.

19. Guardsman Millar spoke of the appellant and he having had "a few pints" on a number of occasions; and that the appellant could "hold" his drinks quite well. He described the appellant as "an average drinker."

20. Guardsman McCusker, who was with the appellant for the greater part of the 15th February said that there was nothing unusual in the appellant's behaviour that day; and that he was not aware of the appellant ever having got into any trouble as a result of drinking.

21. Guardsman Kavanagh spoke of having "a few drinks" with the appellant "new and again", usually at the China Fleet Club, and he described the appellant as "a moderate drinker", and that on those occasions he was "usually good-humoured, singing and laughing."

22. Lieutenant Kennard, the appellant's platoon commander until January this year, said that he knew of nothing unusual about the appellant's behaviour over the period May 1969 to January 1971; and that he had not been involved in any disciplinary action. He also described the appellant as "a moderate drinker, like myself, other guardsmen, Irish Guardsmen."

23. Sergeant Entwhistle, who was called as a witness for the defence, said that on 7 or 8 occasions during the period September/November 1971 he had warned the appellant because he had appeared on muster parade a little unsteady on his feet, and that he attributed this to his being under the influence of drink; but that he did not consider this to be a matter sufficiently serious to take any official action. This Sergeant also said that on a few occasions when he was closing the NAAFI, the appellant appeared to be reluctant to leave - "stroppy" was the expression used by the witness.

24. Another defence witness, Sergeant Lally (who was the appellant's platoon sergeant) said that he could remember only one occasion when the appellant turned up for duty otherwise than sober; that this was on the occasion of a boat trip when the appellant got "a bit obstreperous" after he had "a few drinks."

25. Another defence witness, Guardsman Lynch, said that so far as he knew the appellant drank beer only and that he (Lynch) had never heard of the appellant being involved in arguments or fights.

26. Guardsman Duffy corroborated this; and he said the appellant was always happy, and that he had never seen him get into trouble when he was drinking.

27. Guardsman O'Rourke referred to the boat trip incident and said that that was the only occasion the appellant had been involved in any trouble.

28. On that evidence alone, the jury might well have concluded that the appellant was a young man who, out of boredom, drank more than was good for him, who may well have been under the influence of drink on the evening of 15th February, but who knew perfectly well what he was doing.

29. However, the defence called another witness, a Major Green who said that he was the Army psychiatrist in Hong Kong. He said that he had interviewed the appellant on 7 occasions in Victoria Remand Prison; that he had obtained from the appellant his version of the events of 15th February and that he had "asked him his family details, his entire personal history." In court he said:

"I have no doubt that Guardsman Wilson is an alcoholic ...... I mean not merely that he is a heavy drinker but that he is an addictive alcoholic."

This witness then cited Jcllinek's definition of an alcoholic viz.:

"Alcoholics are those excessive drinkers whose dependence on alcohol has attained such a degree that they show a noticeable mental disturbance or an interference with their mental and bodily health, their interpersonal relations and their smooth social and economic functions or who show the prodromal signs of such development. They therefore require treatment."

And he expressed the opinion that the appellant came within that definition. He agreed that before a person could be labelled an alcoholic he must have lost control over the amount he drinks and that there must be an inability to stop drinking; and Major Green thought that one of the most significant features in the case of the appellant was his "very rapid development of tolerance to very high alcohol intake" adding that this was "one of the features common to addictive alcoholics."

30. The witness then went on to give the court a number of text-book symptoms of alcoholics in general, including the fact that they are "easily frustrated". He was then asked this question by counsel for the defence:

"Assuming ...... that the defendant was the person who stabbed (the taxi-driver) can you yourself draw any connection between the stabbing and the condition in which the defendant was in?"

His answer was:

"I believe that the defendant was drunk at the material time. I believe that what we are talking about, therefore, is one addict who was drunk at the material time and who expressed disorganised behaviour prior to being disturbed by the car which turned into Chung Hom Kok Road. It has been extraordinarily difficult .... to obtain from Guardsman Wilson the precise details of the incident because of his fragmented amnesia for that evening ...."

"Fragmented amnesia", in that context, translated into plain English, would appear to mean nothing more than that the appellant did not remember all the details of what happened on the evening of 15th February. Of course, it was for the jury to say whether this amnesia was feigned or genuine. "Disorganised behaviour" is also a common expression in text-books on psychiatry; and it is hardly surprising that the learned judge stepped in at this stage to ask the witness what he implied by this expression when used with reference to the appellant. The answer he got was this:

We do not see how such behaviour differs from the behaviour of somebody under the influence of drink.

31. The witness was then asked whether he could tell the court anything more about the appellant. He said:

"..... when I first spoke to Wilson in the Victoria Remand Centre he did in fact have a tremor of his fingers and he did describe to me withdrawal symptoms typical of the alcoholic addict."

When asked what these symptoms were, he said:

Again, of course, the expression "withdrawal symptoms" is a standard text-book expression used with reference to the bodily state of an individual who is a drug addict and who has suddenly been deprived of that drug. But what this witness's evidence in this regard amounted to was that on one occasion he saw a tremor in one or more fingers of the appellant; the appellant is alleged to have said to him that he was unsteady on his feet and that he had a constant longing for alcohol - allegations which were not entirely consistent with the appellant's own evidence in court.

32. Counsel for the defence again asked the witness whether he had anything to add to his evidence, and the witness gave the following extraordinary answer:

"One thing ..... possibly I should have mentioned this earlier. It is felt, in the question of alcoholism, that there is a very large genetic component that is handed on in a hereditary fashion; and having taken a close history from Guardsman Wilson, I have no doubt - although I have not, of course, met him - that his father was a professional barman, the highest risk profession for alcoholism. I have no doubt that his father is an alcoholic."!!

33. Of course, there may well be a genetic factor in certain cases of alcoholism. But this was the first the court had heard of it so far as this case was concerned. Be that as it may, assuming that this witness did question the appellant as to his family history, the court was given no indication as to what the appellant's answers were. The appellant himself said nothing in court which could conceivably be said to lend support to Major Groon's assertion that he found support for his diagnosis of alcoholism in the appellant's family history. Not only was the court being asked to assume that Major Green had elicited from the appellant facts not disclosed to the court (hearsay), but the court was not even informed what that hearsay was supposed to be. But the really startling aspect of this witness's answer is the fact that he had never met the appellant's father; and without any evidence whatsoever (at any rate so far as the record of the trial indicates) he was quite prepared to make this categorical assertion before the jury viz. that he had no doubt the appellant's father is an alcoholic.

34. In cross-examination, this witness admitted that his opinion that the appellant is an addictive alcoholic was based entirely on information given to him by the appellant himself. Major Green did not take statements from the appellant's friends and associates in the regiment - persons with knowledge of the appellant's drinking habits, a number of whom testified in court. He was fully aware that the appellant's service record was completely clear from a disciplinary and all other points of view; that in these records he was described as a good soldier and on 2 occasions as a sober soldier.

35. Major Green said that he accepted what the appellant had told him viz. that he was occasionally irritable and quarrelsome and occasionally became involved in minor incidents which he could not remember anything about next morning.

36. He was then questioned by Crown Counsel about how he distinguished between a habitual excessive drinker and an addictive alcoholic. He defined the former as a person who persistently and frequently becomes intoxicated in excess of the social norm, and said that there was a desire but not a compulsion to take alcohol. He was shown the definitions of "addiction" and "habituation" at p.413 of the 3rd Ed. of Slater and Roth's Clinical Psychiatry. Addiction is there defined as:

"A state of periodic or chronic intoxication produced by the repeated consumption of a drug. Its characteristics include:

Habituation is defined as:

"A condition resulting from the repeated consumption of a drug. Its characteristics include:

37. Major Green was asked why he said that the appellant had a compulsion to drink as opposed to a desire to drink. He said:

"My Lord, there is an implication here that the only criterion on which one decides whether a patient is addicted or not is the compulsion."

He was asked the same question again; and his answer on this occasion was very different. He said:

"From Wilson's history, from my discussions with him on the subject, he described the characteristic features of the compulsive drinker in that he spends all his waking life waiting and planning to get to his next drink. He has no other outside interests, and he has nothing else on which he spends his money ............ everything he has goes into drink."

These symptoms are no doubt indicative of the compulsive drinker; but there was not a scrap of evidence before the court to support Major Green's assertions as regards the appellant. This is not the picture which the appellant painted to the court and, presumably, to his own counsel. Major Green was, of course, present in court throughout the greater part of the trial; and he must have been well aware that the "history" which he allegedly recorded differed materially from what the appellant told the jury. Yet when asked whether, having heard the evidence given in court, he felt that he ought to change his opinion, he said that nothing he heard in court made him change his opinion in any way. Again, of course, Major Green's "history" was hearsay and contained matters of alleged primary fact which counsel had so opportunity of testing.

38. When asked whether he found that the appellant was suffering from any physical dependence on alcohol, Major Green referred again to what he called the appellant's "withdrawal symptoms" in prison - a matter on which the jury undoubtedly formed their own view on the basis of the appellant's evidence in court and the complete absence of any other evidence to support Major Green's assertions such as evidence of prison officers and prison doctors who might (if it were true) have been in a position to testify that the appellant was continually demanding alcoholic drink and that for several days (or perhaps longer) after entering prison he showed signs of distress, irritableness, etc. The court did not have any supporting evidence of this kind.

39. Counsel then asked the witness what he found in regard to the appellant's alleged psychological dependence on alcohol and its detrimental effect on the appellant himself and society. The answer he got was this:

"I believe, my Lord, that Wilson has, over the time he has been drinking, compared with the history he gave me of his previous personality, has narrowed his interests, become fractious and quarrelsome on occasions and I think the essential feature about Wilson which may differentiate between him and some of his colleagues is that I feel that Wilson has become a slave to alcohol and it is no longer his servant and I believe ...... that this indicates a psychological dependence."

Again the witness falls back on this "history" allegedly taken by him which, according to Major Green, gave him a very different picture from the one which the appellant himself painted in court

40. It appears that at the request of Major Green, the appellant had been taken to Castle Peak Hospital and there given a full psychiatric examination, including an EEG. Major Green was shown the reports, which were not before the court; but it is clear from the record that they contained nothing which could assist Major Green's diagnosis.

41. Crown Counsel closed his cross-examination thus:

42. In re-examination, the witness summed up his viewpoint in these words:

"I believe that the acutely drunken individual is under the influence of a toxic substance, a chemical, in a way which modifies, which may modify his behaviour. I believe that the addict at any given time, may not of course be drunk but that he is suffering from a disease which inevitably leads him to take more drink if it is available and hence the concept we have already discussed of compulsion."

Counsel for the defence asked him to clarify his answer that the only possible injury to the mind was the transient effect of alcohol. His answer was:

"I mean that there are two processes going on here parallel. One is the underlying factor of addiction to a particular drug, and the other is that periodically the individual takes to alcohol in response to that drive, that compulsion, and that then under the influence of that alcohol, as opposed to under the influence of the addiction - under the influence of the alcohol then his behaviour may be modified - he may then become aggressive or happy ..... and these may vary from time to time. In the addict, unfortunately, there is a greater variation in behaviour from one extreme to the other than there is in the ..... normal individual who occasionally becomes drunk - they therefore become less predictable in a given situation."

43. Prior to 1957 in England (and 1963 in Hong Kong) the law was fairly clear. One naturally turns to the decision of the House of Lords in D.P.P. v. Beard⁽¹⁾. Lord Birkenhead said (pp.501/2):

"... evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent ......... evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts."

With respect, the first of these two propositions is not happily phrased. As Lord Devlin said in Broadhurst v. R.⁽²⁾:

44. In the absence of the jury, counsel for the defence indicated to the trial judge that he did not anticipate being able to persuade the jury that the appellant was so drunk as to be incapable of forming an intent to kill; and, clearly, the jury rejected the appellant's evidence in regard to his state of mind at the moment when he stabbed the taxi-driver. They must necessarily have been satisfied that he had formed an intent to kill.

45. The appellant's main defence was diminished responsibility; but the learned trial judge was by no means certain that this defence was open to the appellant; and the matter was discussed in the absence of the jury.

46. Section 3(1) of the Homicide Ordinance Cap.339 reads:-

"Where a person kills ...... 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 ...... the killing."

47. The section contemplates abnormality of mind arising not only from disease and injury but also from mental deficiency. Indeed mental defectiveness was defined by s.1(2) of the Mental Deficiency Act 1927 as

"a condition of arrested or incomplete development of mind existing before the age of eighteen years, whether arising from inherent causes or induced by disease or injury."

48. Counsel for the Crown submitted to the trial judge that in this case the defence of diminished responsibility should not be left to the jury. He argued that, leaving aside mental defectives, for a defence under s.3(1) to succeed, the disease of the mind must be such as results in some permanent physical injury to the brain, whether or not the disease itself be transient or permanent, curable or incurable; and that as Major Green admitted that the appellant was not suffering from any permanent organic brain damage, the defence of diminished responsibility was not open to the appellant.

49. The judge did not rule specifically on this submission. What he said was that he had come to the conclusion "albeit with considerable hesitation and some reluctance ..... that alcoholism is a disease which falls within s.3 of the Homicide Ordinance."

50. Counsel for the Crown attempted to obtain a ruling from this court as to whether the abnormality of mind contemplated by s.3 involves some permanent organic brain injury. We declined to give any ruling on this submission; and we express no view as to whether the trial judge was correct in ruling that alcoholism of the kind described by Major Green is a disease within the meaning of s.3 of the Homicide Ordinance. It may be that the question whether an accused person is suffering from a disease of the mind will always be a question of fact for the jury. At any rate, having regard to the nature of the expert medical testimony in this case, we do not think that it is desirable to say any more except perhaps to draw attention to Professor Glaister's opinion as recorded at p.456 of the 11th Edition of his text-book on Medical Jurisprudence. He says:

"It will therefore be understood that in cases of delirium tremens the defence will be one of insanity, but that in certain cases of drunkenness the condition of drunkenness at the time when the crime was committed, although not an excuse for the crime, may be pleaded as a mitigation and, provided the degree of intoxication is proved to be such that it deprived the accused of the power of forming any specific intention, the charge of murder may be reduced to that of manslaughter ... The Homicide Act 1957 does not change the foregoing principles. Mr. Justice Donovan stressed this in his judgment delivered at a recent murder trial, stating that the section in the Homicide Act dealing with diminished responsibility was not intended to be, nor was it, a charter for drunkards."

51. The only ground of appeal which has been argued is as follows:

"That the conviction should be set aside because the learned Judge failed to direct the jury that in the absence of medical evidence called by the Crown in rebuttal, there was no evidence to support any finding that the Appellant was not suffering from an abnormality of mind induced by addictive alcoholism within the meaning of the Homicide Ordinance Cap.339."

At first sight this would appear to be insupportable because the burden of proof in relation to the defence of diminished responsibility is on the defendant, i.e. it is for the defendant to adduce evidence to establish his defence and not for the Crown to adduce evidence to show that the defendant was not suffering from an abnormality of mind induced by addictive alcoholism. However, the argument is that the jury acts unreasonably if it does not believe uncontradicted expert evidence. Counsel pray in aid first the decision in Reg. v. Matheson⁽⁵⁾ where it was held that

"though the question of the appellant's abnormality of mind was a question for the jury and not for the medical witnesses to decide, yet the verdict was unsupported by the evidence, having regard to the fact that the testimony of the doctors was unchallenged and showed that the appellant was within s.2 of the Homicide Act, 1957; therefore a verdict of manslaughter would be substituted."

Giving the judgment of the Court of Criminal Appeal Lord Goddard, C.J. said at p.89:

"Three medical men were called by the defence, ......; all three of experience in matters relating to mental health. Cross-examination was directed only to the elucidation of some points in their evidence but the prosecution did not challenge the opinions they had formed and all three had personally examined the prisoner. They all agreed that he was not insane within the M'Naghten Rules. ...... They were all satisfied that his mind was so abnormal as substantially to impair his mental responsibility."

The jury had nevertheless convicted of murder. Lord Goddard went on to say:

"While it has often been emphasised, and we would repeat, that the decision in these cases, as in those in which insanity is pleaded, is for the jury and not for doctors, the verdict must be founded on evidence. If there are facts which would entitle a jury to reject or differ from the opinions of the medical men, this court would not and indeed could not disturb their verdict but if the doctors' evidence is unchallenged and there is no other on this issue, a verdict contrary to their opinion would not be 'a true verdict in accordance with the evidence'."

In the present case counsel for the appellant say that in that passage "unchallenged" means "uncontradicted by evidence". They point out that in Reg. v. Bailey⁽⁶⁾ the uncontradicted medical evidence, which was to the effect that the appellant "was suffering from abnormality of mind by disease and that his mental responsibility was impaired", was "tested in cross-examination". The submission is that that is precisely the position here. The commentator at 1961 Crim. L.R. 829 says:

"Matheson and the present case might be technically reconcilable with Rivett on the ground that in the two later cases the court could find no evidence of any such facts or circumstances as were said to exist in Rivett, which could displace or throw doubt on the unchallenged evidence; but it is thought that the trend of the cases shows that the courts are requiring juries to place greater reliance on the medical evidence."

In Rivett⁽⁷⁾ the Court of Criminal Appeal was concerned with the defence of insanity and held at p.94:

"it is for the jury and not for medical men of whatever eminence to determine the issue. Unless and until Parliament ordains that this question is to be determined by a panel of medical men, it is to a jury, after a proper direction by a Judge, that by the law of this country the decision is to be entrusted. This Court has said over and over again that it will not usurp the functions of the jury, though it may by virtue of the Criminal Appeal Act set aside a verdict if satisfied that no reasonable jury could have found a verdict of Guilty in a particular case. Here, no doubt, they had the opinion of medical men of undoubted integrity and whose qualifications none would question. But they had also the facts and the undisputed facts of all the surrounding circumstances. This is not a case where a scientific witness can say with certainty, as in the case of a bodily disease, from specific symptoms such as a rash, a coma or other physical sign that a disease exists. The jury have heard the indications that have led the medical witnesses to their conclusion; they have also heard all the other facts relating to the man and the crime, including the evidence of the doctor who saw the man very soon after it was committed. That he knew he had done wrong is evidenced by the fact that he not only told his friend what he had done and indicated the consequences that would follow to himself, but gave himself up to the police for having committed murder. Let it be assumed he suffered from schisophrenia, or whatever doctors may call it; let it be assumed that he killed the girl on a sudden impulse; a jury of his country are satisfied that he was responsible, and it is not for this Court to say that he was not."

52. In our view the effect of these cases is this: matters of fact upon which it is necessary or proper to take the opinion of experts are no less matters for the decision of the jury than are any other matters of fact. Nevertheless jurors should not lightly disbelieve expert evidence simply because it does not accord with their own (inexpert) opinion on the matter in issue. They may disbelieve it if there is some reason for so doing. That reason may be, but will not necessarily be, an inconsistent opinion expressed by another expert witness. In Rivett it was held that they might disbelieve the evidence on one or other of the following grounds if their findings justified that course: (1) that they were not satisfied with the indications that had led the expert witnesses to their conclusion; (2) that there were other facts relating to the man and the crime, including the evidence of the doctor who saw the man very soon after it was committed, inconsistent with their opinion; and (3) that Rivett knew he had done wrong and gave himself up to the Police for having committed murder. One may add that the evidence of an expert, like that of any other witness, may be disbelieved because of inherent contradictions or the manner in which it is given, although it may be that an expert will usually have a skill and integrity which will render him safe from criticism of this kind. It is when they consider rejecting the opinion of an expert on the grounds that the indications that led him to his conclusion are inadequate or that other facts found are inconsistent with the expert's conclusion that jurors should exercise most care, because they are coming close to substituting their own opinion upon a matter of science. It is part of the function of an expert to decide when he has sufficient data upon which to form an opinion. Nevertheless, a medical expert will frequently have based his opinion in part upon allegations of fact recounted to him by his patient and the jury is not bound to accept that those allegations of fact were true. Once it was established that the jury was bound either to accept that such "case history" was true or even to accept the opinion of an expert, on whatever it was founded, the basis of trial by jury would be undermined. Reg. v. Matheson and Reg. v. Bailey are only supportable on the basis indicated by the commentator at 1961 Crim. L.R. 829, that is to say that there was neither ground for doubting the skill or integrity of the medical witnesses nor any evidence of facts which were inconsistent with the opinion they expressed. Indeed, in Reg. v. Matheson it might almost be said that the evidence of the doctors represented an agreed fact.

53. In the present case the position is different. The evidence of Major Green was open to criticism on two possible grounds: (1) that he had formed his opinion on manifestly inadequate indications; and (2) that in expressing the view that the appellant's father, whom he had never seen, was an alcoholic, he showed himself to be a witness capable of wild assertion and one who, therefore, could not be safely relied upon in relation to the matter in issue. It is not necessary for us to express any view whether the jury were right to reject Major Green's evidence on either or both of the grounds: it is sufficient that we think it was open to them to reject it and that we cannot say they acted unreasonably in rejecting it, as they must have done.

54. Coming back to the ground of appeal it must again be emphasised that it alleges a fault in the judge rather than in the jury, that is to say a non-direction. In argument it was further said that there was a misdirection. In argument it was further said that there was a misdirection when the learned judge said:

"Members of the jury, comment has been made - and legitimately made, or fairly made - by Mr. Patrick Yu for the defence - that no doctor has been called to rebut the evidence given by Major Green that the accused was an alcoholic. It was not necessary - although it might have been desirable - for the Crown to have called such a medical witness if there had been one available. But the strength of the case for the defence must necessarily rest upon the view that you take of Major Green's evidence."

In our view that direction was entirely correct. Nor do we think it was necessary for the judge, having pointed out that there was no contrary medical evidence, to say that there was no other evidence inconsistent with the opinion of Major Green. The case for the Crown on this issue was advanced principally on the basis that Major Green's evidence was inherently suspect rather than upon evidence said to be inconsistent with his opinion. It was said, inter alia, that the evidence shows that the story told to Major Green by the appellant, which was the story upon which the Major in part formed his opinion, was not true. In addition, however, it was suggested that the appellant's statement made to the Police at Sheung Shui Police Station on 24th February 1972 that he wanted to hide when the other car came was true and that that, like the subsequent behaviour of the appellant in Rivett. was inconsistent with the opinion of the medical witness. It would, therefore, not have been correct to tell the jury that there was no evidence at all inconsistent with that opinion.

55. It only remains to add that the whole of the argument on behalf of the appellant was concerned with the issue whether the appellant was an addictive alcoholic. Had we decided that there was a misdirection on that issue we would still have had to consider whether that misdirection resulted in a substantial miscarriage of justice, because the vital question was whether the appellant suffered from a mental abnormality which substantially impaired his mental responsibility. If, as a matter of law, we could say that there was, in any event, no evidence that it was addictivealcoholism rather than the taking of drink which impaired his mental responsibility on this occasion then the misdirection would be immaterial. In the result we do not need to consider this further question.

56. For the above reasons the appeal is dismissed.

22nd September 1972

Representation:

P. Yu and F.A.L. Eddis (Gordon Hampton & Winter) assigned for appellant.

A.P. Duckett, S.C.C., for respondent.

(1) [1920] A.C. 479

(2) [1964] 1 A.E.R. at p.122

(5) 1958 2 A.E.R. 87

(6) 1961 Crim. L.R. 828

(7) (1950) 34 Cr. App R. 87