Lim Tit-seng Alias Lim Terk-choon v. The Queen

Case No.CACC 117/1977

Court

Court of Appeal

Date06 Sep 1977

Judge—

Case Document

100%

CACC000117/1977

IN THE SUPREME COURT

	Criminal Appeal
	1977 No. 117

-----------------

BETWEEN
	LIM Tit-seng alias LIM Terk-choon	Appellant
	and
	THE QUEEN	Respondent

-----------------

Coram: Huggins and Pickering, JJ .A. and McMullin, J.

Date of Judgment: 6th September 1977.

-----------------

JUDGMENT

-----------------

Huggins, J .A.:

1. The Appellant was charged with the murder of his wife and was convicted of manslaughter on the ground of diminished responsibility. He appeals against conviction.

2. The couple had come from Malaysia on their honeymoon. After a short time in Hong Kong they went on to Taiwan and returned here on 16th April 1976. That night the wife was brutally murdered in a lane in Wanchai. Her body was found shortly after the Appellant had been arrested by the police in another lane nearby. Two constables on patrol had seen the Appellant acting suspiciously and they challenged him. He tried to hide behind a pile of wooden boxes and they followed and shone a torch on him. When questioned he made no reply but turned his face to the wall. The police noticed that his clothes were wet, although it was not raining, and on closer inspection they saw what appeared to be bloodstains on his clothing. He was then taken to a street lamp, where it was seen that he was holding a red book, which he tore up and dropped on the ground. Suddenly he began to struggle violently and ran away, but he was caught and eventually subdued. The officers had doubts about the Appellant's sanity and took him to the police station. There he again struggled violently and began to scream, but he said nothing comprehensible. After a time he quietened down and lay silently on the floor, although at times "he made some rather violent movements". Later he was taken to the Tang Shiu Kin Hospital under restraint and there he was given an injection, the nature and purpose of which was never the subject of evidence. An X-ray examination was carried out and while he was awaiting the results he started to shout political slogans. He had been accompanied from the police station by a police interpreter, who began to talk to him when he again quietened down. The interpreter asked a number of questions about his movements and was told that the couple had been robbed by five persons. He then asked why the Appellant had run away on seeing the police. The Appellant did not reply immediately: he said "Because ...." and stopped "for one minute or so", and then said "Because I murdered my wife". Surprised by this answer the interpreter asked why he had done that, to which the Appellant gave a reply indicating that his wife had committed adultery in Kuala Lumpur. When asked what weapon he had used, the Appellant fell silent and he was described as looking tired. He was next taken to Queen Mary Hospital, where he continued to look worried and tired and seemed to be "quite unstable". A police sergeant talked to him and he was given a cigarette and a cup of tea. After this he began to talk and eventually the sergeant formally cautioned him and recorded a statement. The Appellant appears to have been reluctant to sign the statement at first but did so after he had been given an explanation of the request. When the statement had been signed he took it and looked at it closely for some time and then he suddenly tore up the second page of it. Later he again became violent and had to be restrained. For the rest we think all that needs to be said is that a Dr. Shum prepared a report upon the Appellant's mental state and that that report was put before the jury as part of the evidence in the trial: it was in these terms:

	"The above-named came under observation in both Castle Peak Hospital and Siu Lam Psychiatric Centre. I examined him on both occasions. Though I have not been able to interview any of his relatives or friends I have read the Police report on his case as well as the psychiatric histories of his previous admissions to mental hospitals in Malaysia.
	Defendant has a history of mental illness dating back to early 1960's and he had his first admission to the Hospital Bahagia, Ulu Kinta Perak, Malaysia from 13.10.1964 to 28.12.1964. His mental state then was described to be violent, aggressive, unpredictable, hallucinated. He also cried, laughed, shouted and had flights of ideas. He was considered a dangerous patient. The diagnosis was Schizophrenia and he responded well to medication and in-patient treatment.
	The subsequent admissions to the same hospital for similar reasons were from 11.1.1966 to 6.6.1966; from 3.8.1968 to 20.9.1968; from 30.5.1970 to 3.8.1970 and from 21.9.1973 to 3.12.1973. He never seemed to have gained sufficient insight into his condition and he defaulted medication after each discharge. After his last discharge from the psychiatric hospital in December 1973 he was told to continue medication at Klang or General Hospital, Kuala Lumpur but apparently he had not done so.
	During the initial period of observation in Castle Peak Hospital from 24.4.76 to 7.5.76 he was aggressive, violent, cunning and unpredictable. He had to be sedated frequently for disruptive and assaultative behaviour. He soon settled in the ward and he had good recollections of his behaviour and he offered explanations and rationalisations for what he had done during the early period of observation. No definite delusions or hallucinations were illicited from him and he did not seem to suffer from intellectual or memory disturbances.
	Again when he was transferred to Siu Lam Psychiatric Centre on 7.5.76 he became disturbed again but he soon settled after a few days with sedation. Up till now he has been behaving rationally and his speech has been coherent and he has not shown evidence of hallucinations. He is not at present on any medication and he does not exhibit unequivocal mental symptoms. He knows the charge against him and he plans to get in touch with his legal counsel. He has sufficient intelligence to instruct them and he is able to follow court procedures. In short, there is no definite evidence of mental illness in him at the present stage and he is fit to plead.
	As to the alleged offence, he had never admitted the same in front of medical staff, he maintained that he did not kill his wife. Analysis of the course of events which happened to him during his period in Hong Kong, I am of the opinion that he was aware of what he was doing and he knew what he had done all the time. However, in view of his past history of a relapsing schizophrenic illness characterised by episodic breakdowns into violent and aggressive behaviour which though transient could be extremely dangerous and even homicidal, and his observable behaviour at the time of arrest and a few days afterwards, it was quite possible that at time of the alleged offence or immediately preceeding if he was suffering from a relapse of his schizophrenic illness. In other words, at the time of the alleged offence, he could be labouring under the influence of a psychotic illness which substantially impaired his mental responsibility."

The Appellant did not give evidence or call any witnesses.

3. The points taken before us may be summarized as follows:

1.	The oral confession to the police interpreter was not admissible in evidence:
2.	if admissible, the confession ought to have been excluded by the judge in the exercise of his discretion:
3.	the judge failed to direct the jury adequately as to the evidence relevant to the issue whether the Appellant killed his wife and, in particular, as to the weight which they ought to attach to his confession.

4. The basis of the first contention on behalf of the Appellant is an allegation that there was no evidence upon which the judge could properly find that the confession was voluntary within the principle stated in Ibrahim v. R. 1914 A.C. 599. On the contrary, Mr. Bernacchi says, the evidence that the Appellant was given an injection some time before the confession was made raises a real doubt whether the mind of the Appellant was overborne. Mr. Bernacchi relies upon the dictum of Parker, L.C.J. cited by Lord Reid in Commissioner of Customs and Excise v Harz 1967 A.C. 760, 821

"that even the most gentle ...... threats or slight inducements will taint a confession."

We fully accept that and also accept that it is not material that a person in authority did not intend to extract a confession or be guilty of any impropriety: Director of Public Prosecutions v Ping Lin 1975 3 All E.R. 175. Nevertheless we think that there must be some reasonable possibility of a threat or promise (express or implied) before it can be said that the prosecution has failed to discharge the burden of proving voluntariness. Reliance was placed on a passage in the judgment of Thesiger, J. in Reg. v Harz 1967 A.C. at p.777, where he cited from Cross's book on Evidence (2nd edition) 445:

"A confession of crime is only admissible against the party making it if it was voluntary, i.e., provided it was not made in consequence of a temporal inducement relating to the prosecution held out by a person in authority or of any threat made by him. Furthermore it is probably necessary that the confession should not come from a person with so unsound or unbalanced a mind that no attention ought to be paid to it."

As will be seen, we do not quarrel with that statement of the law, but we do not think it should be interpreted as indicating that unsoundness of mind is relevant to the issue of voluntariness and that it imports a threat where none would otherwise exist. No doubt what might be a threat to one person might not constitute a threat to another (see (1967) 51 Cr. App. R. 1), but we are satisfied that the giving of an injection in the circumstances of this case did not render any subsequent statement involuntary. It is true that the Appellant was in custody, that he might reasonably be regarded as an invalid and that he had not been cautioned, but we think it was open to the judge, particularly as no objection was taken to the admission of the evidence, to find (as he must have done) that the statement was voluntary.

5. Mr. Bernacchi was on stronger ground when he submitted that the possible prejudice to the Appellant of the admission of this confession outweighed its probative value and that the judge ought to have excluded the evidence in the exercise of his discretion. Counsel went so far as to submit that the statement of the Appellant could, by reason of his state of mind, have no probative value. There may well be cases, as Professor Cross suggests in the passage already cited, where the state of a person's mind is such that no reasonable jury would pay attention to what that person has said. The probative value of a full confession is obviously great and we think the evidence ought not to be excluded unless a finding that the maker knew what he was saying would be perverse. It may sometimes be difficult for a judge to decide whether the state of the evidence is such as to justify his excluding a confession, but we are not persuaded that the judge here came to a wrong conclusion.

6. A judge may equally be uncertain whether he can assist the jury more by brevity or by a detailed analysis of the issues to be decided. In the present case it is argued that he has been too brief and that non-direction has amounted to mis-direction. There were two main issues which the jury had to decide: (i) whether the Appellant killed his wife and (ii) if he did kill his wife, what was his state of mind at the time. The substance of the summing up on these issues is contained in two passages:

"	You will have to decide what weight should be given to that oral confession. Mr. Kwong has asked you to say that it's not to be relied upon on account of the mental state of the accused and the fact that he had received an injection shortly before. You will have to make up your minds about that.
	As far as the question of whether it was the accused who did the killing is concerned, the burden of proof is on the Crown as you have been told and the Crown must satisfy you of that beyond all reasonable doubt before you can convict, not beyond every shadow of a doubt, not with mathematical certainty, you're not required to twist yourselves inside out and turn yourselves upside down, devising ingenious explanations for which there is no basis in the evidence but you have got to be thoroughly, morally certain, quite sure, before you come to the conclusion that this young woman died by the hand of her husband.
	A major issue in this case is obviously one of the mental state of the accused not at this moment of course but at the moment of the killing of the deceased, once you are satisfied that he was responsible for that."
	"You have heard much about how the accused behaved after the police found him and you have before you a lengthy and comprehensive report about what might be called his psychiatric history. Once you have come to the conclusion, if you do, that he killed his wife you are fully entitled to have regard to those matters in considering his mental state."

The criticism made of these passages is that the jury were not told what evidence there was which might lead them to find that the Appellant did kill his wife and that the jury may have been led to believe that the state of the Appellant's mind was totally irrelevant to that issue. It is argued on behalf of the Crown that even if the jury attached no weight to the confession there was ample evidence on which the jury could have found that the Appellant killed his wife. On a consideration of all the other evidence we are of opinion that it added up to more than grave suspicion and we would hesitate to say that the jury would not have convicted upon that evidence alone or that it would have been unreasonable for them to do so. However, if it is to be assumed that the jury would not have convicted upon the physical evidence, then it was vital that the jury should appreciate the central importance of the confession and should realize that they should attach weight to it only if they were satisfied both that the Appellant knew what he was saying and that what he said was true. The matter of the confession might with advantage have been dealt with in more detail and it would probably have been better had the judge reminded the jury of at least the main points in the medical report. Nevertheless we have no doubt that the jury did understand the relevance of the medical evidence to both of the two main issues.

7. What is less certain is whether they appreciated that the fact that the Appellant had in the past been "aggressive, violent, cunning and unpredictable" and had been guilty of "disruptive and assaultative behaviour" was not relevant to the question whether he had struck his wife on this occasion. It is well established that evidence of a mere propensity to violence is not evidence tending to prove a particular act of violence, although previous acts of violence of a peculiar kind may tend to prove a particular act of violence of the same kind: see R. v Straffen 1952 2 Q.B. 911. It seems to us that this is an aspect of the case upon which the jury ought to have been given some guidence and that the absence of this was a non-direction which did amount to a mis-direction. At the same time we are entirely satisfied that had the jury received a proper warning on this point they would inevitably have reached the same verdict and, applying the proviso to s.83(1) of the Criminal Procedure Ordinance, we dismiss the appeal.

6th September 1977.

Representation: