HKSAR v. Liu Chun Yip

CACC 266/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 266 OF 2005

(ON APPEAL FROM HCCC NO. 120 of 2003)

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BETWEEN

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Before : Hon Stuart-Moore, Tang VPP and Yeung JA

Date of Hearing : 18 January 2008

Date of Judgment : 18 January 2008

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Sentence

1.On 30 August 2006, the appellant’s convictions, which followed his trial before Lunn J and a jury on two counts of murder (counts 1 and 2), were quashed and we substituted a conviction on each count for manslaughter.  There was no appeal against two other convictions for wounding with intent or the concurrent terms of 7 years’ imprisonment imposed for these offences (counts 3 and 4).

2.The appellant now has to be sentenced on counts 1 and 2.

3.However, before we deal with our conclusion in this regard, we need briefly to deal with the submission made by Mr Loughran on the appellant’s behalf that, despite having advanced the appeal against the convictions for murder on the basis that manslaughter verdicts should replace those of murder under the provisions of section 83A of the Criminal Procedure Ordinance, Cap. 221, the Court of Appeal’s power under that section to so convict and / or to impose sentence is, as Mr Loughran expressed it:

“

… contrary, on a true interpretation, to the right of appeal as guaranteed in Art 11(4) of the Bill of Rights, and thus invalid.  This is so because by acting under such power, and thereby affording to this, or any, appellant the subject of such power only the single-tier, limited and circumscribed avenues of appeal therefrom, a Court of Appeal would deny this or any appellant such right.”

4.Whilst we can express our general disagreement with the proposition Mr Loughran has advanced, our decision in regard to conviction has been made and the court is now functus officio.  The substitution of manslaughter for murder on counts 1 and 2 has been made and is no longer open to argument.

5.Under the provisions of section 83A(2) of the Criminal Procedure Ordinance, having allowed the appeal against conviction on both murder counts, we now have to “pass such sentence in substitution for the sentence passed at trial as may be authorized by law for the other offence, not being a sentence of greater severity”.  As we have indicated, Mr Loughran also takes issue with the validity of this provision in regard to sentence, submitting that this imposed a limit to the appellant’s rights on appeal.

6.We disagree. The passing of sentence on counts 1 and 2, having quashed the murder convictions, is a necessary consequence of our earlier judgment.  There remains a possible avenue of appeal to the Court of Final Appeal which is open to the appellant, subject always to leave being obtained for that purpose.  It is relevant in this context to note that Article 11(4) of the Hong Kong Bill of Rights Ordinance, Cap. 383, provides:

“	Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

7.We turn now to the question of sentence.  The facts of the case are fully set out in our earlier judgment.  For present purposes, it suffices to give a brief outline.

8.The appellant had been staying for about a month, at his own request, with a family in Sheung Wan.  He was the godson of one of its members, Chui Sau-chun (Chui).  Chui shared a room with her granddaughter, Chan Ka-man.  Chui’s son, Chan Che-chow, shared a bedroom with his girlfriend, Yeung Mei-kuen, and a third bedroom was occupied by Chan Che-chow’s son, Chan Hei-ming, and his girlfriend Tsoi Wai-man.

9.The offences took place at about 9.30 am on 29 August 2002.  Chan Che-chow, whose room was locked, heard his mother screaming and he ran to her assistance.  As he entered his mother’s room, he found the appellant holding a large knife in both hands which he was using to stab his mother and his daughter.  Chan Che-chow then wrestled with the appellant, sustaining in the process several serious knife wounds (count 4).  Despite the terrible knife injuries received by Chan Ka-man (count 3), she was still able to alert the police.  Their prompt arrival enabled them to give assistance to Chan Che-chow who was still struggling with the appellant on the floor.  Chui and Tsoi Wai-man each died as the result of the deep chest wounds the appellant had inflicted upon them.

10.These killings were committed whilst the appellant was suffering from a psychotic episode.  The undisputed evidence at trial was that the appellant was suffering from an abnormality of mind, induced by paranoid psychosis, which substantially impaired his mental responsibility for his acts at the material time.

11.The cause of the appellant’s mental condition was disputed at trial.  However, it is apparent from the jury’s verdicts of guilty on the murder counts, in the light of the way they had been directed, that the jury accepted the evidence given by the prosecution’s psychiatrist, Dr S H Lui, who had said that this psychotic episode resulted from the appellant’s abuse of dangerous drugs over a number of years prior to this tragic incident.  The drugs included methamphetamine (‘ice’).  Negative tests from body samples established that the appellant was not, at the time of the killings, acting under the direct influence of dangerous drugs.  For what it is worth, we should perhaps add, in the light of a suggestion made by Mr Loughran that as the jury’s view was not necessarily one which satisfied the criminal standard of proof it was incumbent on us that we should conduct our own assessment of the psychiatric evidence, that we are satisfied from all the reports before us that Dr Lui’s opinion is to be followed.

12.Dr Lui’s description of the appellant’s abnormality of mind is set out in our earlier judgment at paragraphs 31 and 32 but, for ease of reference, we shall repeat what he stated, namely:

“		‘	… Liu [the appellant] gives a history of abuse of substance, especially “Ice” – methamphetamine – for some five years.  He also took other drugs such as ketamine, cannabis and sedatives.  The after-effect was often irritability and suspiciousness which he says could be “slept off”.  According to Liu, he had been using those substances more frequently from early 2002.  He then began to hear imaginary voices, and suspiciousness [which] sometimes turned into periods of paranoia – for example, against the doctors who had treated his nose and knee ailments respectively at around the time – lasting many days. He did not seek psychiatric treatment.  It would appear that Liu had experienced increasing hallucination and delusional ideas of persecution in the week leading up to the index offences.  The last time he took “Ice” is said to be two or three days prior to the violence, the mental symptoms apparently made worse by his failure to sleep properly.  At the material time, Liu recounts he heard voices telling of a “massacre”, believed he was in danger, was confused, frightened and impelled to act. Mental examination on admission here found Liu oriented and coherent but in a state of shock at what had happened.  He [spoke] of the deceased as entirely victims.  At the same time he was fearful of reprisal from their family. He reported still hearing voices.  Medication was later prescribed and he is now fully recovered and symptoms free.  Opinion: Liu was suffering from a drug-induced psychosis at the time of the said crime.  This would be an “abnormality of mind” in legal terms which in my opinion substantially impaired his [mental] responsibility for his crime …
			……
			… The abnormality of mind was the psychosis.  Psychosis is a disease of the mind characterised by abnormal perceptions, hallucinations that is, delusional beliefs and impaired contact with reality.  Drug-induced psychosis, once induced, runs its own course, which may be days, even weeks.  The abnormality did, I believe, substantially impair the defendant’s mental responsibility for his fatal acts, despite the drugs.  If the defendant had never taken the drugs, which he claims he had used for several years, of course he would not have killed.’ (Appeal bundle pp. 296-297)
	32.	Later in his evidence, when Dr Lui was explaining how the onset of the psychosis was a process which occurred over a considerable period of time, he said:
		‘	… my diagnosis on this defendant was based on a large part on the history.  He gave a long history of regular abuse of several drugs, and the psychosis at the time of the [offences] had not emerged suddenly, but, as I have told the court, that, according to the defendant, about a year after he started taking those drugs he already had experienced episodes of brief paranoia, and then by the year 2000 he had experienced episodes of frank paranoid psychosis.  So the psychosis was actually an evolving process looking back at the history, with ideas as he used drugs, the effects appear to have accumulated.  Now, this is compatible with the actions of these drugs because these drugs disturb the dopamine and serotonin neuro-transmitters, those neurons, and there is good evidence that prolonged use of these drugs could cause damage to these neurons.  So the effects, the damaging effects do accumulate … So the long history, the evolving process, I think is the strongest support for the diagnosis of drug-induced psychosis.’ (Appeal bundle p.364)”

13.We now have to sentence the appellant on two counts of manslaughter on the basis of diminished responsibility which the prosecution had been prepared to accept and to which the defence had offered to plead guilty at the outset of the trial.  We have, for these purposes, been supplied by Dr Lui with further psychiatric reports.

14.The first of Dr Lui’s reports is dated 21 September 2006.  He noted that in the Spring of 2006, the appellant’s behaviour deteriorated to such an extent that “for weeks on end he had to be kept in solitary confinement”.  However, the appellant became visibly relieved after his appeal had been allowed and his behaviour returned to normal.  Dr Lui then observed that after about two weeks the appellant became “irritable” again.  This, it seems, is because he “had come to realize that a life sentence was still very much a possibility”.  In the light of these developments, Dr Lui expressed the following opinion:

“	8.	Liu [the appellant] had had an adjustment reaction in the months leading up to the outcome of the appeal.  With his fate hanging in the balance this was understandable.  I suspect moreover that there was an element of volition on his part in the dramatic expression.  Nonetheless the emotional and behavioural upheaval had been severe, and in my view reflects certain vulnerability in his personality manifest especially at times of stress.
	9.	Liu must not abuse psychotropic drugs again.  It is clear enough how these substances can play on his brain.  I would recommend psychiatric supervision indefinitely to monitor his mental condition and to advise him.
	10.	Liu shall serve his time in a normal prison setting.  When he settles down he will be referred to the psychiatric outpatient clinic for follow-up.”(Emphasis added)

15.In our earlier judgment, we indicated that we would be considering a life sentence for each count of manslaughter. Our major concerns were reflected in Dr Lui’s opinion that, once given his freedom, the appellant “must not abuse psychotropic drugs again”.  It is clear that if he were to do so, he may once more have a psychotic episode and, in this sense, the appellant represents, in our opinion, a long-term danger to the community.  Whilst it is not suggested that a Hospital Order would be appropriate in this case, Dr Lui stated that he recommended “psychiatric supervision indefinitely to monitor the appellant’s condition and to advise him”.

16.Dr Lui’s report was the subject of comment by Dr Chan Sai-yin who was briefed by the Director of Legal Aid on the appellant’s behalf.  We note, originally, that Dr Chan had thought a Hospital Order would be appropriate.  However, he has since changed his mind.  In a report dated 9 October 2006, Dr Chan observed in the final paragraph:

“

6.9

Judging from the medical point of view, the Appellant is currently not safe to be released to the society. This is because i) he might re-abuse dangerous drugs; ii) his psychosis may still relapse without re-abuse; iii) he might still be harbouring the symptom of confused thought. Treatment and stabilization of his mental condition should take several years (say, three). Full psychiatric assessment should be done just before his release from custody in the future. Close follow-up, preferably with ‘conditional discharge’, should also be arranged.”

17.The second report of Dr Lui is dated 2 January 2008.  In this, Dr Lui stated that in the future the appellant would require “close supervision and practical support” if his return to the community was to be safely accomplished.  Dr Lui continued in his report to say that the appellant:

“	… must, of course, never have access to illicit drugs again, his brain is susceptible and the consequences of such insults all have seen.  Medication is currently only low level sedation.  Psychiatric follow-up will be long-term.”

18.We have had regard to the principles stated in R v Hodgson as reviewed in Attorney-General’s Reference No. 32 of 1996 (Whittaker) [1997] 1 Cr App R(S) 261 at 264 where Lord Bingham CJ said:

“	… At page 114 of Hodgson (1968) 52 Cr.App.R. 113 MacKenna J., giving the judgment of the Court, said:
	‘	When the following conditions are satisfied, a sentence of life imprisonment is in our opinion justified: (1) where the offence or offences are in themselves grave enough to require a very long sentence; (2) where it appears from the nature of the offences or from the defendant’s history that he is a person of unstable character likely to commit such offences in the future; and (3) where if the offences are committed the consequences to others may be specially injurious, as in the case of sexual offences or crimes of violence.’
	Counsel for the Attorney-General submits that the principles formulated in that quotation do not as a matter of uniform practice require medical evidence but merely describe circumstances from which the necessary inference of continuing danger to the public can be drawn. So much, he suggests, is confirmed by De Havilland (1983) 5 Cr.App.R.(S.) 109, where a sentence of life imprisonment was upheld by this court, despite the fact that there was no medical evidence.
	In our judgment the learned judge was taking an unnecessarily narrow view of the circumstances in which a discretionary life sentence can be imposed. It appears to this Court that the conditions may be put under two heads. The first is that the offender should have been convicted of a very serious offence. If he (or she) has not, then there can be no question of imposing a life sentence. But the second condition is that there should be good grounds for believing that the offender may remain a serious danger to the public for a period which cannot be reliably estimated at the date of sentence. By ‘serious danger’ the Court has in mind particularly serious offences of violence and serious offences of a sexual nature. The grounds which may found such a belief will often relate to the mental condition of the offender. So much is made plain by Wilkinson (1983) 5 Cr.App.R.(S.) 105, in particular in the passage at 108 where Lord Lane C.J. cites the judgment of Lawton L.J. in Pither (1979) 1 Cr.App.R.(S.) 209 and continues:
	‘	It seems to us that the sentence of life imprisonment, other than for an offence where the sentence is obligatory, is really appropriate and must only be passed in the most exceptional circumstances. With a few exceptions, of which this case is not one, it is reserved, broadly speaking, as Lawton L.J. pointed out, for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when that danger will subside, and therefore an indeterminate sentence is required, so that the prisoner’s progress may be mentioned by those who have him under their supervision in prison, and so that he will be kept in custody only so long as public safety may be jeopardised by his being let loose at large.’
	It is therefore plain that evidence of an offender’s mental state is often highly relevant, but the crucial question is whether on all the facts it appears that an offender is likely to represent a serious danger to the public for an indeterminate time.”

In this case, we are satisfied that a life sentence should be imposed.  Unquestionably, on the material before us, the appellant represents a potential long-term danger to the community.

19.The sentence we impose, therefore, is one of life imprisonment to be served concurrently on each count of manslaughter.  As the life terms on counts 1 and 2 are discretionary, we must specify, pursuant to section 67B(1) of the Criminal Procedure Ordinance, the minimum to be served on each count.  Stock JA described the effect of this section in HKSAR v Hui Chi-wai and Ors (No. 2) [2003] 2 HKC 582 at 591 in these terms:

“

… It is designed to draw from the court a minimum term of years which the convicted person must actually serve before release, remembering however, and this is an important caveat, that it is inherent in the phrase ‘minimum term’ that the court does not say that that is the stage at which the convicted individual is to be, or even should be, released. Those who are entrusted with the function of monitoring prisoners serving indeterminate sentences, or long term determinate sentences, and with making recommendations, where appropriate, for release or for the conversion of indeterminate terms to determinate ones, may very well in individual cases decide against the prisoner’s release at the end of the minimum term and, indeed, may decide that release is not permissible for some considerable time beyond that date, or indeed at all.” (Emphasis added)

20.The order we make in this regard, which will have concurrent effect, is that the appellant must serve a minimum term of 16 years’ imprisonment on each of these counts.  The sentences on counts 3 and 4 remain unaffected and will be served concurrently with each other and with the life terms on counts 1 and 2.

Mr Zervos, SC, Ag. DDPP, and Mr Henry Hung, SGC, of the Department of Justice, for the Respondent.

Mr Paul Loughran, instructed by Director of Legal Aid, for the Appellant.