HKSAR v. Chiu Wai Kan Vicken

CACC438/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2009

(ON APPEAL FROM HCCC NO. 172 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Lunn J in Court

Date of Hearing: 13 January 2011

Date of Handing Down Judgment: 22 February 2011

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.On 30 July 2008, the applicant killed his stepfather inside the stepfather’s flat in Kowloon City.   He was then aged 23 years and the father 75.  The cause of death was manual strangulation and massive blood loss from numerous wounds.

2.The applicant was indicted for the offence of murder and pleaded not guilty.  On 8 December 2009, after a trial before Beeson J and a jury, the applicant was found guilty by a majority of 5:2.  He now seeks leave to appeal that conviction.

3.It was common ground that before the killing the applicant had consumed ketamine.  The defence at trial was diminished responsibility, although the issues of intent and provocation were also left to the jury for their consideration.

4.The prime question that falls for this Court’s consideration is the adequacy of the judge’s direction on the question of diminished responsibility.

Events before the killing

5.The applicant has never known his natural father.  His mother, who owns a business, married the victim in 1988 but since 1998 they lived separately.  The applicant was cared for by various people, sometimes his mother, sometimes others.  His mother moved out in 1998 and the applicant continued to live in the flat with his stepfather (it is convenient from here on to refer to him as “the father”) and, according to his evidence, enjoyed a relationship with him better than previously.  After he left school, he had a variety of jobs and worked for a few years in his mother’s company.

6.He started taking ketamine at the age of 16 years.  According to his testimony, he was consuming it two to three times a week by the time he was 18 or 19 years.  He managed to stop consumption for about nine months and then because of an emotional upset over a girlfriend, he relapsed and began to take the drug again.  Eventually, according to his evidence, he began to consume the drug two to three times each day.

7.In May 2008, the applicant married and moved out of the father’s flat.  He said that despite the fact that he sometimes quarrelled with the father, his relationship with him was, on the whole, good.

8.Because of his drug habit, the marriage floundered.  Two to three days prior to the killing, there was a serious quarrel and his wife drove him out of the matrimonial home because of his ketamine problem.  As a result, he returned to live in the victim’s flat in Kowloon City.

9.According to the uncontested evidence, at about 4 to 5 am on 28 July 2008, the applicant returned to the matrimonial home with some friends (Mr Lin and Mr Wong) to ask his wife to forgive him but the attempt was unsuccessful and he went with his friends for a drink and to a massage parlour.  Thereafter he returned to his father’s flat.

10.He said that the situation with his wife made him very unhappy and that as a result he consumed more drugs.  A few hours before the killing he left the flat and went down to the street nearby to obtain ketamine.  When he left the flat, the father was sleeping inside his own bedroom.  The applicant returned to the flat, sat on the sofa and consumed the ketamine.  He said that because he was very unhappy he was unable to resist taking the drug.

11.Quite what then occurred is not clear because the applicant gave differing accounts of the events leading to the killing: accounts in his statements to the police and in his oral testimony.

Accounts of the killing

12.In his statements to the police, of which there were four (three were video-recorded), he said:

(1) that there had been a quarrel with his father about the television making too much noise and that the two of them then had a fight during which he, the applicant, took a screwdriver from a drawer and his father took a pair of scissors and that the applicant stabbed his father;

(2) in the first videoed-interview, much the same thing, save that the argument was triggered by his father’s complaint about his consumption of ketamine.  He asserted that the ketamine which he had consumed rendered him semi-conscious and that under the influence of it, he had killed his father, and had then taken a bus to the airport because he did not know what he was doing.  He telephoned his friend Mr Wong and told him that his father was in trouble and asked Mr Wong to go to his father’s residence and he also spoke to Mr Lin and told him that he had had a fight with the deceased;

(3) in the second videoed-interview, in which he spoke about events in the third person, that “the person” (himself) was in a crazy state and was very confused; he had used a pair of scissors which his father had snatched but that he had stabbed his father with a screwdriver and went to the airport when he regained consciousness and spoke to a friend saying that he might have killed his father.  In the course of this interview, he demonstrated how the fight had occurred and, for the first time in his discussions with the police, he talked of having hallucinated in the small hours of 30 July 2008 after he had consumed the ketamine.  At the time of the killing and shortly thereafter he did not know what he was doing.

13.He told the jury that he had a conviction for possession of dangerous drugs, namely, ketamine.  He had started taking ketamine from the age of 16 years; eventually on a daily basis.  He said that about six months to one year before the killing, a voice started to speak to him and told him that his father would hurt him.  The voice would come to him even when he did not take drugs and he became aware, through the voice, that his father was performing black magic.  He had told other people about the voice.  When his wife threw him out of the matrimonial home, he became very unhappy, the voice continued to speak to him and his consumption of ketamine increased.

14.He testified that on the night of the killing there was in fact no dispute with his father.  He purchased ketamine.  He was not able to resist taking ketamine because he was very unhappy.  He took it whilst he was sitting on the sofa and, soon after, he took a saw from a drawer and tried to hurt himself with it but he did not do that because the voice told him to kill his father instead, so he took a pair of scissors and stabbed his father who was in the bedroom.  The taking of the drugs and the attack on the father followed closely upon each other.  His father got up from the bed and followed him and the voice kept telling him to kill his father and that if he did not kill him, he would die himself.  His father snatched the scissors and he himself took a screwdriver from the drawer.  He was unable to control himself and he effected a frenzied attack on his father.  He was out of his mind, stabbing with the screwdriver while trying to snatch the scissors from his father.  He applied the saw to his father’s neck.  Then a voice told him to get away and that someone would fetch him at the airport.  He went to the airport.

15.He said that he had made up the story to the police about his father scolding him.  The truth was that he had heard a voice; indeed he was still hearing voices during the interviews but he did not want to tell anybody about that because he did not want to end up in a psychiatric hospital.

Other witnesses

16.Mr Lin, who testified as a prosecution witness, was a friend of the applicant.  He said that he was aware of the applicant’s ketamine habit.  He frequently told the applicant to stop taking the drug but the applicant ignored him and consumed it in different places: at home, in a bar, in the park, at a pier.  When the applicant consumed ketamine, his speech was slow and he would take a long time to answer questions.  Sometimes his condition was such that he would talk to a lamp-post.  The applicant had also told him that somebody was going to harm him (the applicant) and cause him to be unwell all over his body, that his father cursed him with black magic and that it was because of the pain from the black magic that he had to continue taking ketamine.  Mr Lin noticed that the applicant’s condition deteriorated.  However, in the two days before the killing, during which time he had seen the applicant, the applicant appeared to be acting normally.

17.At about 4 am on 30 July, Mr Lin was with Mr Wong and another friend when they received a call from the applicant.  The applicant sounded incoherent.  He called again later and said he was at the airport and that he had killed his father.  The applicant said that he had stabbed his father once.  Mr Lin thought that the applicant was talking nonsense and it was apparent to him that the applicant was speaking under the influence of ketamine.  Mr Lin went to the father’s premises and there found the body.  He then rang the manageress of a bar which the applicant used to frequent.

18.The manageress of the bar, having received the call from Mr Lin, told him to call the police and she then telephoned the applicant and spoke to him.  She thought he was not very sober and advised him to go to the police station.  At the time she spoke to him, the applicant’s wife was with her.

19.It is common ground that after this telephone call, the applicant went to Kowloon City Police Station at about 6:45 am and surrendered himself.

20.The evidence was that there was no sign of a struggle in the father’s premises.  The autopsy showed the cause of death to be manual strangulation and massive blood loss from numerous wounds caused by a screwdriver used with considerable force to penetrate the body tissues.  The indicia of strangulation suggested the application of a great deal of pressure.

21.Examination of the applicant revealed ketamine on a nasal swab and in his urine and blood.

The experts and diminished responsibility

22.The applicant’s case at trial was that at the time of the killing he was suffering from a psychosis induced by long-term ketamine consumption, that the psychosis was a disease of the mind which substantially diminished his responsibility for the acts which caused his father’s death; but that even if there was no psychosis, he suffered at the time of the killing from ketamine dependence to such an extent that his urge to consume the drug was irresistible and properly regarded for that reason as an abnormality of mind caused by disease and that he was so affected by that disease at the time of the killing that his mental responsibility for what he did was substantially impaired.

23.In support of this defence, the applicant relied upon his own evidence as to his drug consumption and the effect of it upon him, and on the testimony of three expert witnesses.

24.As for the applicant himself, we have already referred to his evidence that he took ketamine two or three times a day and that about half a year to one year prior to the killing he heard voices telling him to kill his father.  He said that at the time of the killing he could not control himself.  He also said that by the time of the killing, his craving for the drug was irresistible.

25.The credibility of this testimony was challenged by the prosecutor on the basis that it sat ill with what the applicant had said to the police and the applicant’s behaviour in the two to three days prior to the killing.  He had told the police that there was a fight, an account from which, at trial, he sought to resile; he had not mentioned the talking voice in his interviews; the jury was able to see for itself how he behaved during the interviews displaying, it was suggested, a demeanour at variance with his contention at trial that during the interviews a voice was talking to him; he made suggestions at trial about inducements held out to him by the police which, said the prosecutor, were not to be believed; and Mr Lin had said that on 28 and 29 July the applicant had been behaving normally.

26.Professor Lee is Professor of Pharmacology at the Chinese University of Hong Kong.  He was called on behalf of the applicant and testified as to the pharmacological effect of ketamine.

27.His evidence was that ketamine is well known for its hallucinogenic side-effects, that it is a drug that is far more likely to be associated with compulsive use than other psychedelic drugs and is known for its potential for dependence.  Based on statements made by the applicant, he proceeded on the assumption that ketamine was taken at about 12:30 am on 30 July 2008 and that the fight between the applicant and the deceased, if there was one, appears to have occurred about half an hour to one hour afterwards.  He thought that the effects of ketamine would be expected to last until about 2:30 am or 3:30 am so that it was likely, on the basis of what he had been told, that the applicant was under the effect of ketamine at the time of the fight.

28.He said that the suggestion made by the applicant that a voice had told him that his father had placed a curse on him, was a hallucination of a typical kind.  As for compulsive use, he said that that very much depended upon the individual.

29.Then there was the testimony of Dr Peter Yu, a psychiatrist, also a defence witness.  He proceeded on the basis of the accounts given to him by the applicant and the statements which he had read, including transcripts of the records of interview and the statements of Mr Lin and Mr Wong.  Surprisingly, he never viewed the videoed-recordings themselves.

30.His conclusion was that the applicant had, at the material time, suffered from ketamine–induced psychotic disorder, clearly an abnormality of mind induced by disease such as substantially impaired his mental responsibility for the act of killing.  He considered the possibility that the applicant had fabricated the symptoms of hallucinations but he thought this unlikely in view of the statements made by Mr Wong and Mr Lin – for example, that by Mr Lin that the applicant had been talking nonsense over the telephone after the killing – and the fact that his attack on the deceased was inherently inconsistent with the good relationship which he had generally enjoyed with him.

31.The psychosis was a severe mental disorder, typified by the presence of hallucinations, hallucinations suffered even when the applicant was not intoxicated.

32.Dr Yu spoke also of long-term drug users reaching a stage where taking the drug may become irresistible and that stress was a factor which contributed to such a state of craving; relevant in this case because of the evidence of the stress imposed upon the applicant by the break-up with his wife only a matter of days before the killing.

33.There was an attempt by counsel for the applicant to adduce evidence to separate the two, that is to say, the long-term underlying condition (the psychosis) and the short-term intoxication caused, he was seeking to elicit, by consumption as a result of an irresistible urge or craving.  Whether he succeeded is doubtful but this was essentially a matter for the jury to determine.  The issue was clearly raised.  In terms of the long-term underlying condition of psychosis and the immediate impact of intoxication, Dr Yu thought that both would contribute to the applicant’s conduct at the time of the killing.  As to how he would evaluate the significance of the two, he thought that the psychosis was more significant “in determining the act of offence”.  The medical history suggested that the applicant had not acted violently during times of intoxication in the past so that the intoxicating effect of ketamine on its own should not have induced any violent acts.  The psychosis would itself reduce will-power and make the urge “even more difficult to resist”; and then he said: “I think in the days leading to the offence, … the fact that he was driven away from home by his wife would-- the stress would make it -- and of course the long history of substance abuse, the illicit use, would make it irresistible for him … to use the substance.”

34.Dr Amy Liu is a visiting psychiatrist at the Siu Lam Psychiatric Centre.  She submitted a report, and testified on behalf of the prosecution. Her opinion, based on the information before her, was that the applicant had likely suffered from ketamine dependence syndrome for about three years before the offence and from ketamine-induced psychotic disorder for about six months before the offence and that the psychotic symptoms had been much more intense during acute intoxication.  

Speeches

35.In his closing speech on behalf of the applicant at trial, counsel for the applicant – who did not appear upon this application for leave – expressly advanced the defence of diminished responsibility on two separate bases: first, that the applicant acted under the effect of drugs which he took as a result of an irresistible urge of such a kind as to constitute an abnormality of mind; and second, that at the time of the killing his responsibility for his acts was substantially reduced as a result of what counsel referred to as “the longer term condition that he was under, what is called the psychosis, or the recurring hallucinations.”  There was a third basis advanced, namely, a combination of the first two.

36.Counsel addressed the first two separate platforms for the plea of diminished responsibility quite extensively and there can be no question but that he invited the jury to consider the issue of diminished responsibility as the result of consumption on the night in question consequent upon an irresistible urge or craving.  Indeed, he complained that prosecuting counsel had ignored this as a discrete possible cause.

The summing-up

37.It is the suggested failure by the judge to leave for the jury’s consideration the possibility of an irresistible impulse, as a discrete foundation for the plea of diminished responsibility, that is the gravamen of one of the grounds of appeal which we have had to consider and is the basis upon which, in the event, we determine this application.

38.The judge instructed the jury correctly as to the ingredients of the defence of diminished responsibility, namely, that if the prosecution had proved the elements of the offence of murder, a verdict convicting the applicant nonetheless of manslaughter was to be returned if the applicant had proved on the balance of probabilities that at the time of the offence he was suffering from an abnormality of mind, arising from arrested or retarded development of the mind or an inherent cause or induced by disease or injury, which substantially impaired his mental responsibility for the killing. She informed the jury that they were to take into account his medical history, “the psychiatric examination and in this case the very long-term consumption of ketamine that he claims and the abnormality of mind must have substantially impaired his mental responsibility for what he did.”  The judge then said this:

“Assuming that a defence has established that he was suffering from a mental abnormality, the question is: Did the abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out killing the accused had taken ketamine. Drink or drugs cannot be taken into account as something which contributes to mental abnormality and to any impairment of responsibility arising from that abnormality. In other words, a single taking of the ketamine by itself would not be sufficient. But you may take the view that both the accused’s abnormality and drink or drugs played a part in impairing his mental responsibility for the killing and that he might not have killed had he not taken drink or drug.

So you have to take into account what he says happened and be satisfied on the balance of probabilities that it was more likely than not that he either - - that he had an abnormality of mind, which could be the long-term taking of ketamine which led to the psychosis, coupled with the taking of the ketamine on the night of the killing itself, so on the night of the killing itself, which triggered the events. In that context, in the context of ketamine that was taken on the evening of the killing, you have to be satisfied that he was acting under an irresistible impulse in taking it. In other words, he could not fight the craving for the drug.” (Emphasis added)

39.What the judge did not do was to separate the irresistible impulse as a possible basis in itself for a successful defence of diminished responsibility.

40.Well after delivery of this passage upon which the application for leave concentrates, the day’s sitting concluded with the summing-up to be resumed the following morning, though not before counsel then acting for the applicant raised one or two matters arising from the summing-up, inviting the judge to deal with them the following morning when the summing-up resumed.  Importantly, for present purposes, one of the exchanges went as follows:

“Mr Loughran: … the other matter which might be potentially problematic: you asked the question more likely whether he had the long-term psychosis and that he could not fight his craving or it was irresistible. It rather seemed – and maybe again I’ve got this wrong – but it rather seemed that these were left to the jury as cumulative conditions for diminished responsibility rather than as alternatives.

Court: I see.  Right.  Well, I propose to go over both of those again … before I send them out.”

41.It is a matter of considerable surprise to us that this exchange was not brought to our attention in any of the written or oral submissions advanced by counsel for the applicant.  It was a matter of common sense and experience for anyone raising this issue on appeal to ponder whether, given the gravamen of counsel’s speech to the jury, counsel had invited the judge to address these issues as alternatives after he had heard the direction of which complaint now made; and to check whether he had done so.  A member of this Court conducted that check himself after the conclusion of this hearing and the passage to which we referred the preceding paragraph is what was found.  Decisions can turn on such things and we are constrained, yet again, in the context of criminal appeals, to point out that is not the Court’s function to do counsel’s work for them.  See, further, in this regard, paragraph 48 below.

42.So it is clear that the two alternative bases for the defence of diminished responsibility were raised by the defence at trial.

Dependency syndrome and diminished responsibility

43.The decision in R v Wood [2008] 2 Cr App R 34 highlights the principle that whether or not brain damage has occurred, a live issue of diminished responsibility may nonetheless fall to be determined by the jury, namely, where there is evidence that alcohol or drug dependency has reached such an extent or nature in the particular case that it constituted an abnormality of mind and where there is evidence that that abnormality impacted upon responsibility for the criminal act in question.

44.Section 2(1) of the Homicide Act 1957, with which that decision was concerned, is in the same terms as section 3(1) of the Homicide Ordinance, Cap. 339:

“Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.”

45.Sir Igor Judge P (as he then was) said, at para 23:

“ Dealing with the point very broadly, the consumption of alcohol before a defendant acts with murderous intent and kills cannot, without more, bring his actions within the concept of diminished responsibility. On its own, voluntary intoxication falls outside the ambit of the defence. This is consistent with the general approach of the law that, save in the context of offences of specific intent and proof of that intent, criminal acts committed under the influence of self induced intoxication are not for that reason excused. Public policy proceeds on the basis that a defendant who voluntarily takes alcohol and behaves in a way which he might not have behaved when sober is not normally entitled to be excused from the consequences of his actions…. .

24. In the context of diminished responsibility, alcoholism has now been recognised as a disease which may fall within the ambit of s.2 of the 1957 Act. The principle was summarised in the Court of Appeal in Dietschmann by Rose L.J. [2001] EWCA Crim 2052:

‘The general rule that drink does not give rise to an abnormality of mind due to inherent causes was authoritatively established in R v Fenton (1975) 61 Cr. App. R. 261 and confirmed in R v Gittens (1984) 79 Cr. App. R. 272 [1984] QB 698.  In line with those authorities, R v Tandy (1988) 87 Cr. App. R. 45 established that drink is only capable of giving rise to a defence under section 2 if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary.’”

46.Then this at para 41 of Wood:

“… The sharp effect of the distinction drawn in Tandy between cases where brain damage has occurred as a result of alcohol dependency syndrome and those where it has not is no longer appropriate. Naturally, where brain damage has occurred the jury may be more likely to conclude that the defendant suffers from an abnormality of mind induced by disease or illness, but whether it has occurred or not, logically consistent with Dietschmann, the same question (i.e. whether it has been established that the defendant’s syndrome is of such an extent and nature that it constitutes an abnormality of mind induced by disease or illness) arises for decision. That is for the jury. If the syndrome does not constitute such an abnormality of mind, diminished responsibility based on the consumption of alcohol will fail. If, on the other hand, it does, the jury must then be directed to address the question whether the defendant’s mental responsibility for his actions at the time of the killing was substantially impaired as a result of the syndrome. In deciding that question the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily. Assuming that the jury has decided that the syndrome constitutes an abnormality of mind induced by disease or illness, its possible impact and significance in the individual case must be addressed. The resolution of this issue embraces questions such as whether the defendant’s craving for alcohol was or was not irresistible, and whether his consumption of alcohol in the period leading up to the killing was voluntary (and if so, to what extent) or was not voluntary, and leads to the ultimate decision, which is whether the defendant’s mental responsibility for his actions when killing the deceased was substantially impaired as a result of the alcohol consumed under the baneful influence of the syndrome.”

47.Further elucidation was provided by the judgment of Lord Judge CJ in R v Stewart [2009] 2 Cr App R 30, from which the following at paras 26 to 35 is specifically designed for the assistance of judges and juries in this complex area.  The principles are, of course, equally applicable to cases of drug dependence:

“26. … Whether or not brain damage is discernible, alcohol dependency syndrome is a disease (ICD-10) or disorder of the mind (DSM-IV-TR). It is not excluded from the operation of s.2, of the Homicide Act 1957. If the defence of diminished responsibility is to operate according to its statutory structure, the law must take account of advances in medical knowledge. Nevertheless, when the issue arises, it must be addressed in the context of a further principle, that the voluntary consumption of alcohol, and the defendant’s voluntary intoxication, does not provide a defence to murder, although it may, in an extreme case, bear on the question of the defendant’s intent (R. v Sheehan and Moore (1974) 60 Cr. App. R. 308). These principles have to be reconciled.

27. Alcoholism varies greatly in its nature and extent. As with other conditions, it involves different levels of severity. A heavy drinker does not necessarily suffer from alcohol dependency syndrome and someone suffering from it may very well have lengthy periods when he is either sober or when his mental responsibility is not significantly impaired by alcohol. Thus, for example, in the present case, the appellant’s condition did not preclude sensible, intelligent discussions both with a doctor and his probation officer not long before he killed the deceased. One of the criteria for ICD-10 purposes includes the “difficulty”, not, we emphasise, the impossibility of controlling the use of alcohol, and DCM-IV-TR acknowledges that unsuccessful efforts to cut down or control alcohol abuse may be an indication of the presence of the disorder, and, in other words, would allow for temporary improvements without undermining the overall diagnosis of alcohol dependency syndrome. In short, even if the diagnosis is agreed and correct, not every alcoholic is suffering from such abnormality of mind that his mental responsibility for his actions at the time of the killing is or must be treated as if it were substantially impaired. Thus, although the condition is a disease encompassed by s.2 of the 1957 Act, the defence is not established simply on the basis of the diagnosis of alcohol dependency syndrome.

28. …

29. The effect of Wood was to align the principles which apply when the defendant’s alcohol dependency syndrome has not (yet) caused discernible brain damage to those where it has. The consumption of vast amounts of alcohol may therefore reduce murder to manslaughter, first, when the effect of the intoxication is so extreme that the prosecution has failed to prove the necessary intent to kill or cause grievous bodily harm (R. v Sheehan and Moore) and second, assuming that the necessary intent is proved notwithstanding the consumption of alcohol, on the basis of diminished responsibility, provided the defendant proves that he was suffering from such abnormality of mind induced by the disease or illness of alcohol dependency syndrome that his mental responsibility for his actions in doing the killing was substantially impaired.

30. We offer these suggestions to trial judges structuring a summing up for the purposes of the defence of diminished responsibility based on alcohol dependency syndrome. At an early stage the judge may wish to reflect on the ordinary principles relating to voluntary intoxication. He should then outline the ingredients of the defence, effectively paraphrasing s.2 of the 1957 Act in the familiar way.

41. The jury should be directed to decide, first, whether the defendant was indeed suffering from an abnormality of mind at the time of the killing. For this purpose R. v Byrne (1960) 44 Cr. App. R. 246; [1960] 2 Q.B. 396 continues to be of assistance. The judge is likely to direct the jury that it does not necessarily follow from the fact that the defendant suffers from alcohol dependency syndrome that he has established the necessary abnormality of mind. This depends on the jury’s findings about the nature and extent of the syndrome and whether, looking at the matter broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink.

32. If the defendant proves the necessary abnormality of mind, the second question is, whether this was caused by disease or illness. In this class of case, the answer to this second question will normally follow from whatever answer is appropriate to the first question.

33. Finally, and assuming that the particular defendant’s alcohol dependency syndrome did indeed constitute an abnormality of mind due to disease or illness, which was present at the time of the killing, directions about whether the defendant’s mental responsibility for what he did was substantially impaired should be addressed in conventional terms. The jury should be assisted with the concept of substantial impairment, and may properly be invited to reflect on the difference between a failure by the defendant to resist his impulses to behave as he actually did, and an inability consequent on it to resist them.

34. In answering these questions, the jury should be directed to consider all the evidence, including the opinions of the medical experts. The issues likely to arise in this kind of case and on which they should be invited to form their own judgment will include (a) the extent and seriousness of the defendant’s dependency, if any, on alcohol (b) the extent to which his ability to control his drinking or to choose whether to drink or not, was reduced, (c) whether he was capable of abstinence from alcohol, and if so, (d) for how long, and (e) whether he was choosing for some particular reason, such as a birthday celebration, to decide to get drunk, or to drink even more than usual. Without seeking to be prescriptive about considerations relevant to an individual case, the defendant’s pattern of drinking in the days leading to the day of the killing, and on the day of the killing itself, and notwithstanding his consumption of alcohol, his ability, if any, to make apparently sensible and rational decisions about ordinary day to day matters at the relevant time, may all bear on the jury’s decision whether diminished responsibility is established in the context of this individual defendant’s alcohol dependency syndrome.

35.       We acknowledge that this decision will rarely be easy.  Indeed it is fair to say that diminished responsibility has always raised complex and difficult issues for the jury, not least because the defence usually involves conflicting medical evidence addressing legal, not medical concepts, for a jury of lay persons to decide.  The jury is often called upon to confront problems relating to the operation of the mind with which they will be unfamiliar.  Nevertheless the resolution of these problems continues to be the responsibility of the jury, and when addressing their responsibility they are inevitably required to make the necessary judgments not just on the basis of expert medical opinion but also by using their collective common sense and insight into the practical realities which underpin the individual case.”

48.It is regrettable that neither Wood nor Stewart was drawn to our attention by counsel.  We drew counsel’s attention to Wood before the hearing and uncovered Stewart after.

Analysis

49.It may now readily be seen why, in the event, the judge’s otherwise very careful and clear directions to the jury on the complex issues which arose for their determination, fell short of what was required in relation to this issue of drug dependency syndrome.  It was not an issue which was to be left only on the basis that it could be “coupled” with the psychosis.  The dependency was to be left to the jury as an issue for its consideration even if it were to reject the experts’ conclusion that the applicant had at the material time been acting under the influence of a drug induced psychosis.

50.Difficult an issue though it was, the judge ought to have directed the jury to decide, first, whether the applicant suffered from a dependency of such a nature and extent as constituted an abnormality of the mind; if so whether that was caused by disease or illness and, if so, whether the impact of that abnormality of mind due to disease or illness was present at the time of the killing and if so whether to an extent which substantially impaired the applicant’s mental responsibility for what he did.  Those were the steps to which the jury should have been invited and directed to such evidence as was said to establish each segment of the defence. It may be that the evidence adduced from the experts was not sufficiently comprehensive to cover each segment but whether or not that was so was pre-eminently a matter for the jury.  In the circumstances, there has been a material non-direction.

Result

51.The question which arises is whether to quash the conviction and order a retrial for the offence of murder or, pursuant to the provisions of s. 83A of the Criminal Procedure Ordinance, Cap. 221, substitute for the verdict found by the jury a verdict of guilty of manslaughter.

52.Mr Lee SC for the respondent has suggested that, in the event of a finding in favour of the applicant in relation to the directions concerning diminished responsibility, the justice of the matter would best be served by substituting a verdict of manslaughter.

53.In support of this approach, he points out that:

(1) there was considerable expert evidence that at the time of the killing the applicant was suffering from a disease of the mind such as substantially to impair applicant’s mental responsibility for his act, and there is no reason to suppose that the evidence would be any different upon a retrial;

(2) some hours after the jury were sent out to commence their deliberations, they notified the trial judge that they were deadlocked at 4:3 and it was after a few hours beyond that they returned a verdict by a majority of 5:2;

(3) there was circumstantial evidence which supported the defence: it was accepted that the applicant had been a long-time consumer of ketamine; that he consumed ketamine on the night of the killing; at least one of those to whom he afterwards spoke thought he was not sober; he had in the past been observed to behave bizarrely, talking to lampposts; there were no signs of a fight in the deceased’s apartment, suggestive of a one-sided unprovoked attack upon a man with whom the applicant generally enjoyed good relations.

54.In our opinion, there is merit in the approach advanced.

55.Accordingly, we grant the applicant leave to appeal against conviction, treat the hearing of the application as the appeal and substitute for the verdict of guilty of murder a verdict of guilty of manslaughter.

56.We order that the applicant be remanded in custody for the preparation of a psychiatric report and that upon its finalisation, the matter be re-listed before this Court for sentence.

Mr Robert SK LEE, SC, DDPP & Mr Michael TSANG, PP, of Department of Justice, for the Respondent

Mr Lawrence LOK, SC, Mr Caesar LO and Mr Joe CHAN, instructed by Messrs Cheung, Chan & Chung, for the Applicant