Ho Wai-leung v. The Queen
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CACC000903/1976
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 19th January, 1977. ----------------- JUDGMENT ----------------- Pickering, J.A. 1. The Appellant killed his young daughter in gruesome circumstances. Upon his trial for murder he pleaded diminished responsibility but it is clear that the jury did not find him to be suffering from that type of abnormality of mind contemplated by section 3 of the Homicide Ordinance Cap. 339 for they returned a verdict of murder. Miss Tam, who represented the Appellant before this Court but did not represent him at his trial, put forward one single ground of appeal which was to the effect that the learned judge had inadequately directed the jury upon the importance of medical evidence in relation to the issue of diminished responsibility. The specific complaint was that, having directed the jury correctly that the question whether the Appellant was at the time of the killing suffering from abnormality of mind in the broad sense was one for the jury, the judge had continued with the words "the etiology of the abnormality of mind does not, however, seem to be a matter to be determined on expert evidence". This phrase represented a misquotation from the words of Lord Parker, C.J. in Reg. v. Byrne(1) where the learned Chief Justice said:
2. It will be at once apparent that the learned trial judge was purporting to quote from the case of Byrne but that he introduced a negative not to be found in the extract from Byrne. It was Miss Tam's contention that the effect upon the jury might well have been to leave them with the impression that the etiology of the abnormality of mind was one upon which, as in the case of the existence in the broad sense of abnormality of mind, they could ignore medical evidence in favour of other evidence in the case and this misconception might well have led the jury to finding that there was no abnormality whereas, had the misconception not been present, they might well have found abnormality. 3. There is no doubt that the inclusion of the negative in the extract from the summing up which we have quoted amounted to a misdirection. We refrain from pursuing the question as to what the effect of that misdirection might have been in other circumstances. In the present case any such enquiry is rendered unnecessary by virtue of the fact that on the evidence adduced there never was material before the jury which would have enabled it to find abnormality of mind of the type contemplated by section 3 of the Homicide Ordinance. That section reads in part:
4. It is apparent that the finding of mere abnormality of mind is insufficient to reduce what would otherwise have been murder to manslaughter; the abnormality must also be such as substantially to impair mental responsibility and must moreover also arise from one of the conditions contained within the brackets in subsection (1) above. In the present case counsel who appeared for the Appellant in the court below, obtained from the only medical witness the opinion that at the time of the killing the Appellant was, on the balance of probabilities, suffering from "such abnormality of mind as substantially impaired his mental responsibility for his act" in killing the child in the way he did. This evidence went to abnormality of mind in the broad sense and in the light of that evidence the jury may or may not have come to the conclusion, which was for them, that such abnormality of mind existed. 5. There however the defence case appeared to stop short because, as Miss Tam frankly agreed, no evidence was adduced as to the etiology of that abnormality of mind so that there was nothing before the jury upon which they could come to a conclusion that the abnormality, although such as substantially to impair the Appellant's mental responsibility for his acts in doing the killing, also arose from one of the causes specified in section 3, subsection (1) of the Homicide Ordinance. The nearest that the Appellant's counsel in the court below came to establishing causes of the Appellant's possible condition at the time of the killing was that the conduct of his father, an alcoholic, a drug addict and who had killed another of his sons, could have resulted in the formation of the Appellant's personality in an "unfavourable way" in that he was "indecisive, weak-willed, easily moved and led by others". What is here being said is no more than that the father's conduct and nature - matters very doubtfully within the causes contemplated by section 3, subsection (1) of the Homicide Ordinance - led to conditions of mind and character in the Appellant far short of abnormality of mind. 6. It is important that it should be understood that for the defence of diminished responsibility to succeed there must be demonstrated, on the balance of probabilities, abnormality of mind such as substantially to impair mental responsibility for acts done in the killing and also the appropriate etiology of such abnormality. In the present case the etiology was never before the jury which therefore simply had not the material upon which it could have made a finding of that type of abnormality of mind which would have justified their returning a verdict of manslaughter. 7. Accordingly we dismissed the application for leave to appeal. Representation: Miss M. Tam (D.L.A.) for appellant I.H. Polson for Crown/respondent. (1) [1960] 2 Q.B. 396 @ 403 |