HKSAR v. Ng Mei Lan
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CACC149/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. CACC 149 OF 2008 (ON APPEAL FROM HCCC NO. 257 OF 2007) --------------------------- BETWEEN
--------------------- Before : Hon Stuart-Moore VP, Wright and Saw JJ Date of Hearing : 8 January 2009 Date of Judgment : 8 January 2009 Date of Handing down Reasons for Judgment : 12 February 2009 --------------------------------------------------- REASONS FOR JUDGMENT --------------------------------------------------- Saw J (giving the judgment of the Court) : 1.The applicant was charged with :
2.On 25 March 2008, a jury was empanelled pursuant to section 75 of the Criminal Procedure Ordinance, Cap. 221 to determine whether or not the applicant was fit to be tried. 3.On 26 March 2008, that jury unanimously determined that the applicant was not fit to be tried. There is no issue taken with this part of the proceedings. 4.On 31 March 2008, the judge raised with counsel the matter which now forms the grounds of appeal in these proceedings, namely, whether section 75A of the Criminal Procedure Ordinance, Cap. 221 required another jury to be empanelled to determine whether the applicant did the acts charged. The issues were canvassed extensively and much of the discussion focused on the English Court of Appeal decision in R. v. O’Donnell [1996] 1 Cr.App.R. 286 and the relevant English legislation. 5.The issue was, as McMahon J indicated at trial, a matter of the correct interpretation of the relevant provisions. 6.On 1 April 2008, the judge ruled that in the circumstances that prevailed, it was not necessary for a separate jury to be empanelled to determine whether or not the acts alleged had been proved, pursuant to section 75A. Thereafter, the prosecution adduced evidence seeking to establish that the applicant did the acts which were the substance of the counts upon which she was originally to have been tried namely : the act of killing in the case of the manslaughter count and the act of setting the fire in the arson count. 7.On 2 April 2008, the jury determined in the case of each count that the applicant did the act charged. 8.The applicant was subsequently ordered to be detained in Siu Lam Psychiatric Centre, pursuant to section 76(2)(a)(i) and Schedule 4 of Cap. 221. 9.The applicant filed notices for leave to appeal both conviction and sentence. Ultimately she did not pursue the application for leave to appeal sentence and we dismissed it. At the conclusion of the hearing on 7 January, 2008, we dismissed the application for leave to appeal conviction. These are our reasons. 10.The charges arose out of events that took place in the early hours of 2 May 2007 in Room 2029, Hing Cheung House, where the applicant lived with her daughter, Yeung Man Fung. Some time around 5:30 a.m. a fire broke out. When the firemen gained entry to the premises, they found the applicant and her daughter lying on the floor. They were both unconscious, but were resuscitated and taken to hospital. The applicant survived but her daughter did not. She is the person named as the victim in the manslaughter count. 11.It was the prosecution’s case that the applicant deliberately started the fire which led to the death of her daughter. It was part of the prosecution’s case that the applicant had, in letters written to the police in June 2007, admitted that she had started the fire in the flat by lighting newspapers. In another letter written to the police in July 2007, she admitted starting the fire “carelessly”. 12.There was also evidence from one of the neighbours who had overheard the daughter pleading with her mother to open the door to the apartment. There was evidence from an expert fire officer that the fire apparently had been started on the lower bunk bed. Another expert witness said that in his opinion a naked flame had been applied to the bedding on the lower bunk bed. 13.It suffices to say that there was an abundance of evidence to support the prosecution’s case that the applicant deliberately set fire to the bunk bed in the flat and that, as a direct consequence, her daughter had died. Grounds of appeal 14.Mr Selwyn So on behalf of the applicant advanced only three of his five original grounds of appeal. 15.Grounds 1 to 3 can properly be taken together. They are to the effect that there was a material irregularity in the proceedings in that the jury which determined that the applicant was unfit to be tried pursuant to section 75, Cap. 221, was the same jury which determined that the prosecution had proved the acts charged pursuant to section 75A, Cap. 221. The substance of Mr So’s submission is that a separate jury had to be empanelled for the section 75A proceedings. Discussion 16.To understand the intent of section 75A properly, it is necessary to have regard to section 75 which, insofar as is relevant, reads :
17.What is apparent from the words of section 75 is that in a trial in the Court of First Instance of the High Court, if the issue of the fitness of a defendant to be tried arises at the time of arraignment, a jury must be empanelled to determine that as a preliminary issue. 18.Paragraph 4(a) provides that if the trial thereafter proceeds, that is to say if the jury determines that the defendant is fit to be tried, then another jury must be empanelled for the trial. 19.There may be very good reasons for this and the most obvious is that in all probability the jury will have already heard evidence from experts and possibly the defendant. They will have heard of necessity some evidence as to the nature and circumstances of the alleged offence. They may have made findings adverse to the defendant, which may include findings which reflect upon credibility. In those circumstances, were they then to proceed to determine the defendant’s guilt or innocence, then they would have to do so having already heard evidence which may have been inadmissible. If the issue arises after the arraignment, the situation is different. Up to that point the trial will have proceeded in the normal way. Evidence more prejudicial than probative will have been excluded. Evidence irrelevant to the matters in issue will not have been placed before the jury. 20.On the other hand, if the jury has determined that the defendant is not fit to be tried, then section 75A is engaged. 21.Section 75A reads :
22.We observe at the outset that a determination pursuant to section 75, that the defendant is under a disability, brings the trial to a halt. What takes place thereafter is not a trial. Section 75A(1)(a) makes that clear. Instead there is a determination of whether the defendant did the acts which are the substance of the offences charged. It is plainly intended that the same jury that made the determination pursuant to section 75, should then consider the issues raised by section 75A. This is apparent from the language used by the draftsman. 23.The use of the expression “where in accordance with section 75, it is determined by a jury that an accused person is under disability” cannot have been intended to require a second jury to be empanelled to determine whether the defendant did the acts which are the substance of the offences in section 75(A)(1). The use of the expression “a jury” in section 75 is followed by the expression “the jury” in section 75A(1)(b) which confirms, in our opinion, that it is intended to be the same jury which will determine both issues. 24.Mr Selwyn So on behalf of the applicant submitted that section 75(4)(a)(i) :
We do not agree. Section 75(4)(a)(i) requires a new jury to be empanelled only if the defendant is determined not to be under a disability. If he is determined to be fit to be tried, then the defendant is arraigned and tried by a second jury. 25.Much of the time in the court below was taken up with a comparison of the Hong Kong provisions and the equivalent English legislation upon which the Hong Kong provisions had been originally modelled. 26.Section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 provides as follows :
27.What is immediately apparent from a comparison of the two sets of provisions is that, when the English provisions were adapted for use in Hong Kong, a significant distinction was drawn between the English provisions and section 75A, Cap. 221. 28.In the English provisions, if the original determination that the defendant was not fit to be tried was made on the arraignment, section 4A(5) required there to be a separate jury to be empanelled to determine whether the accused did the acts alleged whereas, in Hong Kong, the view has been taken that a second jury would serve no useful purpose. 29.Accordingly, we are in agreement with the judge's conclusion that the same jury should determine both issues. 30.Leave was refused and the application dismissed.
Mr John Reading SC, DDPP, and Ms D. Crebbin, SPP, for the Respondent Mr Selwyn So, instructed by Messrs Jimmie K.S. Wong & Partners, assigned by DLA, for the Applicant (Re : Conviction) Appeal dismissed: see FAMC38/2009 dated 18 June 2009 |