Lai Kuen v. The Queen
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CACC000663/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 663 OF 1972 -----------------
Coram: Rigby, C.J., Huggins and McMullin, JJ. Date of Judgment: 21 November 1972 ----------------- DECISION ----------------- 1. On the 21st September, 1972, the appellant was found guilty by the verdict of the jury of the murder of one MUI Suk-fung on the 5th June, and sentenced to death. He applied for leave to appeal against his conviction. Having heard that application and the arguments of counsel we dismissed the application saying that we would state in writing our reasons for so doing. We now do so. 2. The case was, in many ways, a tragic one in that it involved an entirely senseless killing without any apparent motive whatsoever. The deceased was aged 74 and the appellant aged 50. Up to the time of the incident there was evidence that they were the best of friends. The deceased was employed as a watchman in a block of flats in Kowloon. The appellant had gone to live with him and to help him in his duties as night watchman. The appellant cooked food for the deceased and apparently fed and lived with him. 3. About 11 p.m. on the 5th June a Mrs. Chan, a female living with her husband at this block of flats, returned to the premises. On entering the front door, on her way to the lift, she walked past the flight of stairs about half way along the corridor. At the bottom of the flight of stairs she saw a man striking another person who was sitting at the bottom of the stairs. Her reaction was that a thief had been apprehended. However, on looking more closely she saw that the person sitting on the stairs was, in fact, the deceased whom she knew colloquially as "Uncle Mui" and that the man who was hitting him was the appellant. The appellant was repeatedly saying "He is a bad man". She told the appellant to stop hitting "Uncle Mui" and she walked past the bottom of the staircase to the lift and there she pressed the button. Looking back, she then saw "Uncle Mui" lying outstretched at the bottom of the stairs with the tip of an umbrella sticking in his throat. The appellant followed her to the lift, entered with her and accompanied her up to the ninth floor where she lived. The door of her flat was opened by her husband. The appellant, uninvited, entered with her and sat down on a sofa. Mrs. Chan gave him a glass of water. The appellant kept muttering to himself "Bad man". The appellant remained in the flat for well over an hour, sitting on the sofa and continually smoking cigarettes. Indeed, he said that he would spend the night there and leave in the morning. At one stage he apparently got up, grabbed hold of Mrs. Chan's hand -even though her husband was present - and said two or three times "Let's go to book a room in an hotel". After he had been there for some considerable time, Mrs. Chan's sister-in-law entered the flat and she was told what had happened. She prevailed upon the appellant to leave the flat and finally he did so and apparently went downstairs. 4. At or about the same time as Mrs. Chan had returned to the block of flats and had seen what was going on, another tenant, a Mr. Bat, had also entered. He also saw what was going on and also formed the impression that the watchman had caught a thief. He asked the appellant if he should fetch the Police and the appellant replied in the affirmative. He did, in fact, go out and fetched the Police, who returned to the premises with him. The appellant was arrested as he came down from Mrs. Chan's flat and was about to leave the premises. In the meanwhile, the deceased, still alive, had been taken to the Queen Elizabeth Hospital. The tip of the umbrella was still embedded in his neck. He died two days' later. The cause of death was a fracture at the base of the skull and the inhalation of blood into the lungs. The tip of the umbrella had penetrated so deeply into his neck that it had pierced the spinal vertebra at the back of the neck. Two other penetrating wounds were found, one penetrating the side of the head into the skull and the other penetrating the chest wall. Both those wounds were circular stab wounds consistent with having been caused by the tip of the umbrella which had been found still embedded in the neck of the deceased. On the morning of the 6th June - whilst the deceased was still alive - the appellant was charged. with unlawful wounding. In reply to the charge, he said:-
5. The evidence given by the appellant himself at the trial was that he had been suffering from insomnia two days before the incident occurred and that on the day in question he was in a state of nervous tension. He had been a bachelor all his life and that afternoon he visited a brothel and had sexual intercourse with a woman there. It was the first time he had ever had sexual intercourse. After visiting the brothel he visited a male friend of his with whom he spent a short time and then he returned to the block of flats. There he found the deceased, who accused him of having been drinking. In retort, he said that the deceased himself smoked too much, whereupon the deceased proceeded to abuse him. He admitted that he himself then attacked the deceased, who was sitting at the bottom of the staircase. The deceased caught hold of his private parts. He had no distinct recollection of what then precisely happened but he said that he threw the umbrella at the deceassed. Subsequently, he remembered going up in the lift with Mrs. Chan and going into the flat with her. Later he went downstairs and he was arrested. 6. The learned Commissioner, perfectly properly, in summing-up to the jury made reference to the possible defences of self-defence; provocation, such as to reduce the killing from murder to manslaughter, and insanity - defences which, although open to the appellant, on the facts of the case, could have little or no hope of success. The substantial defence relied upon - and indeed the only one which could have had any prospect of success - was the statutory defence of diminished responsibility provided by section 3(1) of the Homicide Ordinance (Cap. 339). That section provides:-
7. Reference has already been made to the fact that the appellant himself, in his own evidence, said that for two nights before the incident he had been suffering from insomnia and on the day in question he was suffering from nervous depression. He described himself as a moderate drinker who drank about four taels of Chinese wine a day and sometimes an additional four taels in the morning. He said, however, that he had never been drunk. Reference has also been made to the fact that the appellant, a bachelor, said that on the afternoon of the time in his life. In evidence, he said that after such sexual intercourse his nervous tension had not been relieved. 8. There was some independent evidence of a fellow watchman, Wong Yin, that the appellant had a habit of staring at people, and tenants in the flat had sometimes asked him if the appellant was abnormal. Wong said that on the morning of the incident he had been sitting with the appellant for some time and that the appellant appeared to be depressed. 9. Two psychiatrists were called to give evidence for the defence, a Dr. Chen and a Dr. (Mrs.) McIlvenna. Both these doctors sought, for entirely different reasons, to show that on the balance of probabilities, at the material time the appellant caused the death of the deceased, he was suffering from such abnormality of mind as substantially impaired his mental responsibility. It is relevant to observe in passing that such abnormality of mind, for the purpose of the section itself, must arise from "a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury." 10. Dr. Chen, for the reasons which he gave - or from the theories he put forward one of which he conceded, in effect, was not to be found in any recognized textbook on the subject - sought to say that at the material time the appellant was suffering from delirium tremens and his condition at the time was what he described as "transient psychosis", that is to say, a temporary state in which the patient is out of touch with reality. 11. Dr. McIlvenna, who had seen the appellant once only - on the 16th September, that is to say over three months after the incident - advanced the opinion that at the material time the appellant was suffering from a disease which she described as "a depressive illness". She went on to advance the somewhat remarkable theory that the act of sexual intercourse for the first time in his life by a may of that age, suffering from a form of anxiety or depression, would bring such sudden relief to the sufferer that it might well be sufficient to make his mind abnormal for the time being. On that matter, the appellant himself had said in evidence that the act of sexual intercourse had brought no relief to his depression. 12. As to the two theories advanced by these two psychiatrists, Dr. Chen had said that he found in the patient no signs of depression when he examined him and Dr. McIlvenna, for what it was worth, said that when she considered the case, after having seen the appellant himself and heard his own story, she found no evidence of alconolism. 13. The Commissioner dealt with the theories advanced by the two psychiatrists fairly, fully and accurately. Having dealt with those theories and conclusions at some length, he went on to say:-
14. Mr. Fok, who appeared at the trial on behalf of the appellant and who appeared for him on the hearing of this application for leave to appeal, made no complaint as to the correctness or accuracy of the summing-up itself. His sole ground of complaint was that the verdict of "guilty of murder" was one which could not be supported having regard to the evidence. In support of that contention he made reference to the somewhat slender evidence of eccentricity - staring at people for no reason - of the appellant before the incident; his own evidence as to his mental condition - lack of sleep and nervous depression - at the time of the incident; and, undoubtedly, his somewhat bizarre and inexplicable behaviour subsequent to the incident when he accompanied Mrs. Chan up to her flat. In addition, he contended that although both doctors gave entirely different - and, indeed, irreconcilable - reasons for stating that the appellant was suffering at the time from some form of mental disease, both of them agreed in their conclusion that at the time the offence was committed the appellant was suffering from an abnormality of mind such as substantially to impair his mental responsibility for the act which he committed. 15. The evidence of the psychiatrists, as is so frequently the case where the only defence to a charge of murder is based upon the statutory defence of diminished responsibility resulting from abnormality of mind, was really very far from being impressive. The jury were fully entitled to attach such weight, if any, to it as they thought it deserved and they were correctly and properly directed by the learned Commissioner on this issue. Since it was presumably known that they would give irreconcilable reasons for their opinion that the appellant was suffering from diminished responsibility it is difficult to understand how anyone could expect the jury to accept that opinion as having any weight at all. 16. Perhaps the strongest evidence in favour of the appellant was not the testimony given by the doctors themselves but the actual circumstances of the case, including, in particular, the conduct of the appellant both at the time of the incident itself and immediately subsequent thereto - the fact that he should have told Mr. Bat to go and call the Police and his curious behaviour in Mrs. Chan's flat. We have given consideration as to whether this abnormal conduct was sufficient in itself - quite independent of any medical testimony - to bring the appellant within the provisions of section 3 of whether the Homicide Ordinance. In this connection, we considered whether the direction of the learned Commissioner to the jury in the following terms was correct. He said:-
17. We are satisfied, however, that mere evidence of abnormality, whether before, during or after the act of killing, is not in itself sufficient to provide a defence under section 3 of the Ordinance. In order to provide such a defence the acts of abnormality averred must be traced to some specific mental cause or condition and, to that extent, medical evidence is required. This view appears to be clearly supported by the words of Parker, L. C. J. in the case of Patrick Joseph Byrne(1), where he said:-
18. In this case, it is implicit from the verdict of the jury that they were unable to accept the medical evidence of either of the doctors that the behaviour, conduct and condition of the mind of the appellant arose - to quote the words of the section itself - "from a condition of arrested or retarded development of of mind or any inherent causes or induced by disease or injury". That was a conclusion which they were clearly entitled to reach upon the evidence before them. 19. The case is a sad one. So far from there being any evidence of enmity between the appellant and the deceased there was positive evidence that they were good friends. One may wonder what quirk of fate, what sudden and irrational impulse prompted the appellant to act as he did. But as the learned Commissioner pointed out, there had to evidence that the appellant was suffering from some mental disease which had substantially impaired his mental responsibility for his act before the defence of diminished responsibility could succeed. The jury, by their verdict, found that there was no such evidence, or no sufficient evidence, to satisfy them, on the balance of probabilities, as to that vital issue. That was a verdict which they were perfectly entitled to find upon the evidence before them. It was for these reasons that we dismissed this application for leave to appeal. Representation: Paul Fok (P.K.H. Wong & Co.) assigned for Appellant. Caird, C.C. for Crown/Respondent. (1) (1960) 44 Cr. App. R. 246 at p. 253 |