HKSAR v. Ma Kwok Fai

Press Summary (English)

Press Summary (Chinese)

FACC No. 1 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2013 (CRIMINAL)

(ON APPEAL FROM CACC NO. 404 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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Mr Justice Ribeiro PJ:

1.I agree with the reasons provided by Mr Justice Fok PJ.

Mr Justice Tang PJ:

2.I agree with the reasons for judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

Introduction

3.The question of law raised in this appeal is how, in cases of violence, the jury should be directed in inferring the necessary intent for the offence charged.  Should the jury be directed to focus only on the blow or blows causative of the prohibited outcome or should they instead be directed to focus on all the circumstances, including all the blows struck or other matters capable of demonstrating the defendant’s intent?

4.In the context of this particular case in which the respondent was charged with murder (the facts of which are summarised below), the Court of Appeal[1] was of the former view, holding that the jury should be directed to focus only on the respondent’s intention when throwing the initial punch which ultimately caused the victim’s death.  The Judge[2], on the other hand, had directed the jury at the trial on the basis of the latter view, inviting the jury to consider all the circumstances including the kicks administered by the respondent to the victim after the initial punch.

The facts

5.On 11 August 2010, the respondent and two other men, Mr Ng Fuk Keung (the victim) and Mr Leung Kam Shing, were involved in a brawl during which the respondent punched the victim on the bridge of the nose, causing him to fall to the ground on his back.  The respondent then threw a second punch at Mr Leung, which although he dodged caught him on his left hand and fractured his left ring finger.  While the victim was lying on the ground unconscious and bleeding from his head, the respondent kicked him three or four times in the ribs with great force.

6.Mr Leung’s evidence, on which the prosecution case was based, was that he and the victim had seen the respondent hit a young man in a shopping centre who then abused the respondent.  While Mr Leung and the victim were walking back from the shopping centre to the housing estate where they lived, they encountered the respondent who verbally abused them.  The respondent punched the victim in the face, then threw a punch at him.  After that, the respondent kicked the victim in the ribs, accusing him of pretending to be dead.

7.Another prosecution witness, Madam Zheng, had been walking behind the victim and Mr Leung and saw them tell the young man not to get in a fight with the respondent.  She saw the respondent, who was ahead of them, turning round to look at them as they were discussing the respondent.  She heard the respondent ask them if they wanted a fight.  Although she did not see who struck the first blow, she saw the three men fighting and, after the victim had fallen and was lying on the ground, she saw the respondent kick him three or four times with great force.

8.The victim died the following day, 12 August 2010, and the post-mortem examination showed serious injuries to his skull with a fracture to the left orbital plate, which could have been due to a fall.  There were haemorrhages in the same area with damage to the brainstem.  The autopsy report gave the cause of death as traumatic head injury.  The victim had also suffered fractures to the right fourth, fifth and sixth ribs caused by a significant amount of force.  The pathologist opined that most of the deceased’s injuries were blunt force injuries caused by a fist, or a hard object, or a fall to the ground.

9.In short, the respondent’s punch to the face of the victim resulted in the victim’s head injuries which caused his death but the kicks to his body and resulting fractures to his ribs did not cause his death.

The proceedings below

10.The respondent’s defence was that he acted in self-defence but the jury did not accept that he did so and returned a verdict of guilty on the charge of murder.  The Judge properly left the alternative of unlawful act manslaughter to the jury but, as their verdict shows, they were sure that he had the necessary mens rea for murder.

11.There is now no doubt that the respondent was seriously mentally disturbed at the time of the offence (a point to which it will be necessary to return later in this judgment) but, although he had been prepared to plead guilty to unlawful act manslaughter (which plea the prosecution declined to accept), the defence did not proffer a plea to manslaughter by reason of diminished responsibility.

12.On appeal, the respondent’s conviction for murder was overturned and instead a conviction on the basis of unlawful act manslaughter was substituted.  After an adjournment, medical reports from a psychologist and two psychiatrists were obtained for the assistance of the Court of Appeal.  In view of his mental condition, he was made the subject of a hospital order under section 45 of the Mental Health Ordinance, Cap.136.

The Judge’s directions to the jury

13.On the issue of intention to commit murder, the Judge directed the jury on the basis that they could deduce an intention to cause really serious bodily harm from the respondent’s action in pushing or punching the victim followed by the substantial kicks which fractured his ribs and that both these actions were administered with significant force.  Specifically, she directed the jury that:

“… You decide intention by considering the evidence about what the accused did or did not do and by what he said or did not say. You should look at the actions of the accused as those actions appear from the evidence, before, at the time of, and after the incident, which was the killing incident. All these things may shed light on his intention at the critical time.”

The Court of Appeal’s judgment

14.The Court of Appeal rejected the prosecution submission that the punch to the face of the victim and the subsequent kicks to his body were part and parcel of the same transaction.  Yeung VP, giving the judgment of the Court, said:-

“41. … when the applicant kicked the deceased, the deceased was already lying on the ground with a fractured skull, which killed him. The kicks could be gratuitous, separate from and independent of the earlier punch to the deceased’s face.

42. This alternative scenario of the kicks being an opportunistic afterthought was clearly available on the evidence and impacts upon the issue of whether, in throwing the punch, the applicant had the intention to cause grievous bodily harm.  When it comes to inferring an intention to cause grievous bodily harm there is a very real difference between a one punch assault and a broader assault consisting of additional acts of violence.”

15.After citing R v Griffiths (1999) 103 A Crim R 291 (discussed further below), the Court of Appeal continued:

“44. It is true that the applicant continued to attack the deceased after he had fallen onto the ground. The fractures to the deceased[’s] ribs indicated that the force used by the applicant was considerable. Madam Zheng said that the applicant kicked the deceased on his waist three to four times with great force. Had the jury concluded that the subsequent kicking and the punch which preceded it were part and parcel of the one event in the sense that at the time the applicant punched the victim he intended to inflict further violence on him and the punch was just the beginning of the attack then such kicks could have supported an intent to cause serious bodily harm.

45. But, as emphasized by Mr McCoy, the kicks on the waist, separate and distinct acts of violence from the punch to the deceased’s face, did not kill the deceased.  Indeed when those kicks were delivered, the traumatic head injuries caused by the punch, which killed the deceased, had already been inflicted. In these circumstances it was incumbent on the judge to direct the jury to consider whether the attack was essentially a one punch attack as opposed to a broader assault upon the deceased.  The jury should have been further directed that should they conclude the former was the position then they should focus their minds on the applicant’s intention at the time he delivered his punch.”

16.The Court of Appeal considered that the Judge had erred in not dealing separately with the respondent’s intent in relation to the punch to the victim’s face, on the one hand, and that in relation to the kicks to his waist, on the other:

“47. In our view, the judge should have reminded the jury that the kicks to the deceased’s waist did not kill him and directed the jury to consider if the single blow with fist, which killed the deceased, was inflicted with the intention to cause grievous bodily harm. Without such a direction, the jury could have been misled into thinking that the intent with which the subsequent kicks were inflicted necessarily determined the intent of the applicant when he delivered his punch.

48. We were of the view that it was doubtful if the applicant could have the intent to cause grievous bodily harm to the deceased when he delivered a single blow to his face with his fist.  We had doubt about the safety of the murder conviction and in our view it was right and just to convict the applicant only of manslaughter.”

The appeal

17.On behalf of the prosecution, Mr Paul Loughran, appearing with Ms Vinci Lam, contended that the approach of the Court of Appeal was fundamentally in error in regarding the respondent’s punch to the victim’s face and subsequent kicks to his body as being other than one single transaction and instead capable of being viewed by the jury as discrete actions with possibly differing intents.  It was submitted that the Court of Appeal was wrong to regard the incident as a one punch attack.  Instead, although the attack involved multiple blows, it was one continuous transaction so that intent to kill or cause grievous bodily harm could be inferred from all the blows whenever delivered and whatever their precise effect.

18.On the other hand, Mr Gerard McCoy SC, for the respondent, sought to uphold the approach of the Court of Appeal.  He submitted that the focus must be on the particular act, where identifiable, which caused the death. Since, in the present case, the lethal act was the punch, it was necessary to consider the intent with which that was administered and not the respondent’s intention in delivering the subsequent kicks, which did not cause the death.  In short, on the facts, the killing could be disaggregated into two identifiable events, one lethal and the other non-lethal.  Since a single blow from a fist is wholly unlikely to raise an inference of intent to cause grievous bodily harm, as opposed to actual bodily harm, Mr McCoy submitted that it was unsafe to conclude that the act which caused the death, the punch, was administered with the necessary murderous intent.

Disposition of the appeal

19.At the conclusion of the hearing of the appeal, for reasons to be handed down in due course (which are now set out in this judgment), the Court:

(1) allowed the appeal against the Court of Appeal’s judgment substituting a conviction for unlawful act manslaughter in place of the murder conviction; and

(2) in light of the undisputed evidence as to the respondent’s mental abnormality at the time of the offence, directed that (a) there be entered instead a conviction for manslaughter by reason of diminished responsibility, and (b) the order for the respondent to be detained for an unspecified period in Siu Lam Psychiatric Centre be confirmed.

The relevant legal principles

20.It is a trite proposition of criminal law that there must be a temporal coincidence of the actus reus and mens rea of an offence.  This is referred to as the doctrine of concurrence.  As Lord Kenyon CJ stated, in Fowler v Padget (1798) 7 TR 509 (at p.514), 101 ER 1103 (at p.1106):

“The intent and the Act must both concur to constitute the crime”.

21.In Meyers v R (1997) 147 ALR 440, the High Court of Australia also emphasised the need, in a prosecution for murder, to focus on whether the defendant does the particular act which causes the death of the victim with the necessary intent.  At p.442, the High Court stated the proposition thus:

“An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide. If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.”

22.It is an established general proposition that a jury should be directed to take into account all of the circumstances in order to determine what inferences may be drawn regarding a defendant’s intention in relation to a particular act.  The following passage in R v Purcell (1986) 83 Cr App R 45 at p.48 sets out the appropriate direction:

“The direction which the judge would have given on intent had he had the opportunity (which the judge in this case did not), would have been as follows: ‘You must feel sure that the defendant intended to cause serious bodily harm to the victim. You can only decide what his intention was by considering all the relevant circumstances and in particular what he did and what he said about it.’…”.

23.The proposition that all the circumstances are relevant to the question of drawing inferences as to intention is also supported by the provisions of s.65A(1)(b) of the Criminal Procedure Ordinance, Cap.221.[3]

24.An example of how a similar attack to that in the present case was approached is provided by R v Roberts [2001] EWCA Crim 1594.  In that case, the three defendants, who included one Ian Day, had gone in search of a man who had abused their party in a club.  Ian Day punched the man’s head, probably three times, and this caused him to fall backwards where he hit his head on the kerb. At this point, Ian Day then kicked him three times to the head, apparently on the right-hand side.  The man died as a result of a kick or injury to the left-hand side of his head causing severance of the left vertebral artery leading to a subarachnoid haemorrhage.  The eyewitness evidence was that the blow was either perpetrated by Ian Day or one of the other two defendants.

25.On Ian Day’s appeal against his conviction for murder, the Court of Appeal rejected the argument that murderous intent was not established because of the pathologist’s evidence that the fatal haemorrhaging might have been caused by no more than a punch.  Laws LJ, giving the judgment of the Court, said (at §38):

“As regards the principal argument on Dr Acland’s evidence we regard Mr Saunders’ submission with respect as artificial. First, it involves a toothcomb approach to the Recorder’s words. Secondly, the jury had to look at the evidence as a whole, not just the evidence about what blow might have caused the death and what degree of force would have had to lie behind it. On the evidence as a whole Ian Day punched this man three times or so, knocking him to the ground and then kicked him when he got there. It is difficult to see that a reasonable jury could have concluded that he did not intend to inflict really serious injury.”

(Emphasis added)

26.Another example is Rachel Hegarty v The Queen [2012] VSCA 252. In that case, the defendant, who was intoxicated at the time and may also have injected heroin, assaulted the victim in the street by punching him and then kicking him when he was lying on the ground.  The victim’s death was the result of a fracture of his spine at the point where the neck joins the chest and the medical evidence established that the victim’s pre-existing spinal condition was such that a blow delivered with even minor force could have caused his death.  The most likely cause of the injury was a blow to the front of the head, but any force which caused the victim’s head to project backwards could have produced the injury.

27.In dismissing the appeal against the defendant’s conviction for murder, the Court of Appeal of the Supreme Court of Victoria, noted (at §21) that the circumstances attending the victim’s death were unusual in that the spinal fracture causing death could have occurred as a result of minimal force and accepted the Crown case (at §22) that the punches and kicks by the defendant comprised a single assault.  Since the evidence established that the acts constituting the assault were so closely related, it was appropriate to draw the inference that the defendant’s intention remained the same from beginning to end, so that the impossibility of distinguishing the action that caused death was not material.

Present case not an application of the single transaction rule

28.Where a subsequent act is part of the same transaction or series of events, the defendant’s intention to kill or cause grievous bodily harm when committing a prior act in that same transaction will be sufficient mens rea for the common law offence of murder.  This principle is known as the single transaction rule and was established by the Privy Council in Thabo Meli v R [1954] 1 WLR 228. 

29.The rule widens the scope of the concurrence rule in that it permits an earlier murderous intent accompanying a non-lethal act to be applied to a subsequent lethal act, thereby bringing about a concurrence of actus reus and mens rea.  This is achieved by treating the non-lethal act, which was accompanied by murderous intent, as part and parcel of the same transaction including the lethal act, which was not accompanied by murderous intent.  In the usual case, the lethal act is not accompanied by murderous intent because the defendant thinks the victim is already dead when he carries out the lethal act (e.g. dumping the body of a person in fact still alive into the sea in order to conceal the crime).  An example of this is R v Hui Yiu Fai [1993] 1 HKC 223 referred to in the appellant’s printed case.

30.The present case is not an application of the single transaction rule because, here, there is no question of applying the mens rea accompanying a prior act to a subsequent act committed without the necessary mens rea.  Instead, the present case is simply one of taking into account subsequent conduct in order to determine if the relevant mens rea for the offence charged can be inferred at the time of the earlier prohibited act from the totality of the evidence.  There is no question of non-concurrence between the required mens rea and the relevant actus reus of the offence (here, the punch to the victim’s face).

The approach in the present case

31.The present case involved an assault by the respondent on the victim and Mr Leung occupying a short period of time, occurring at the same physical location, without any interruption or hiatus and unaccompanied by any statement indicating a change of intention.  The respondent punched the victim in the face, lashed out at Mr Leung with his fist (fortunately not connecting with anything other than Mr Leung’s hand), and then immediately thereafter viciously kicked the victim as he lay on the ground.  This was all part and parcel of a single attack.

32.It was entirely proper for the Judge to direct the jury to consider the evidence of the attack as a whole in order to determine the respondent’s intention when he threw the fatal punch that ultimately caused the victim’s death.

33.I do not, with respect, agree with the view of the Court of Appeal that the kicks were gratuitous, or merely “an opportunistic afterthought”, and to be seen as separate from and independent of the earlier punch to the victim’s face.  The evidence shows that the respondent was “spoiling for a fight” with the victim and Mr Leung and, once the fuse had been lit, the assault played out as one piece.

34.Mr McCoy’s submission that the first punch to the victim’s face was not accompanied by the necessary mens rea for murder – and thus his characterisation of the assault as a one punch attack – assumes that fact without having regard to all the other relevant evidence.  The validity of that assumption is undermined when that evidence is taken into account.

35.I do not accept Mr McCoy’s submission that R v Roberts and R v Hegarty are materially distinguishable on the principle involved.  Those cases provide examples of situations in which evidence of an assault comprising the administration of several discrete blows was held to have been properly examined in order to determine the relevant state of mind of the assailant at the time of inflicting the fatal blow.  It does not follow, of course, that an assailant’s state of mind will necessarily be the same throughout but, whether it is or not, it is open to the jury to consider all the evidence in order to draw an inference as to that state of mind at the material time.  If the fatal blow is the first struck, then the jury may need to consider the evidence all the more closely in order to draw any inference as to whether the necessary intent was present at the beginning of the assault.

36.In the circumstances, the Judge’s directions to the jury on the question of the respondent’s intention when inflicting the fatal punch on the victim were entirely appropriate and fair.

Whether acquittal for murder justified because of material misdirection by the Judge

37.At §50 of its judgment, the Court of Appeal noted:

“… that the judge had, in the course of the summing up to the jury, used the terms ‘really serious bodily harm’ and ‘serious bodily harm’ interchangeably. The essential elements of murder are the unlawful killing with intent to kill or cause grievous bodily harm. Whilst ‘really serious bodily harm’ was considered a sufficient equivalent to ‘grievous bodily harm’, ‘serious bodily harm’ in many factual situations would not be sufficient to indicate the required intention for murder and the use of ‘serious bodily harm’ would amount to a mis-direction.”

38.After citing Prior J in R v Griffiths at p.293, where he held that if the expression “grievous bodily harm” was to be explained the explanation should be confined to the expression “really serious bodily harm”, the Court of Appeal continued:

“52. It would have been better for the judge not to use ‘really serious bodily harm’ and ‘serious bodily harm’ interchangeably in a murder case, but to adhere to ‘grievous bodily harm’ or ‘really serious bodily harm’.”

39.In the respondent’s printed case, Mr McCoy contended, citing well-known authorities to the effect that a direction that “grievous bodily harm” means “serious bodily harm” is wrong,[4] that this provided an additional or alternative basis for upholding the Court of Appeal’s decision to quash the respondent’s conviction for murder.

40.On a reading of the summing-up as a whole, the Judge clearly and properly directed the jury that the mental element for the offence of murder was either an intention to kill or to cause really serious bodily harm to the victim.  The Judge used the expression “really serious bodily harm” on no fewer than 10 occasions in her summing-up.  This phrase was also specifically used in the handout provided by the Judge to the jury as an aide-mémoire of the elements of the offence.  Although it is true the Judge also used the expression “serious bodily harm” without the qualification “really” on several occasions, there is no reasonable basis to think that this would have confused the jury or led them to apply an inappropriate definition to the required mental element of the offence.

Answering the certified point of law

41.I would answer the certified point of law as follows: in cases of violence involving a single assault consisting of multiple blows, the jury should be directed in inferring the necessary intent to focus on all the circumstances, including all the blows struck or other matters capable of demonstrating the defendant’s intent.

Manslaughter by reason of diminished responsibility

42.On the state of the evidence at trial, the verdict of guilty to the murder charge was, accordingly, a proper one for the jury to return and the Court of Appeal was wrong to set aside that verdict on the basis that the Judge had misdirected the jury.

43.However, as already indicated, it is clear that the respondent is, and was at the time of the offence, suffering from a serious mental abnormality. This is supported by two medical reports of Dr Chow Kit Wan and Dr Liu Ching Yung, Amy, both Visiting Psychiatrists at Siu Lam Psychiatric Centre, dated 19 and 23 April 2013 respectively and obtained for the purposes of the appeal to this Court.  Both psychiatrists opine that the respondent was suffering from paranoid schizophrenia at the time of the offence and from such abnormality of mind arising from schizophrenia that substantially impaired his mental responsibility for his acts.  They also opine that further psychiatric in-patient treatment remains necessary.

44.Moreover, it would appear that the respondent has a history of mental illness and has received psychiatric treatment since 1993.  After the respondent was arrested for this offence on 11 August 2010, he was admitted to Castle Peak Hospital where he was diagnosed as having a delusional disorder.

45.But none of this emerged at trial.  The respondent gave instructions to his legal representatives refusing to permit the plea of diminished responsibility to be advanced at his trial for murder and instead his instructions were that he acted in self-defence.  The prosecution itself would only have been permitted to adduce evidence of diminished responsibility if the respondent had put his own soundness of mind in issue: see Jimmy Johnson v R [1983] HKLR 344 at p.350D.

46.Although, notwithstanding the respondent’s instructions, the Judge would have had a discretion, exceptional and to be exercised with care, to raise the issue of diminished responsibility and call psychiatric evidence of her own motion if the interests of justice demanded such a course,[5] it is not necessary in view of the way the case has proceeded to consider whether the Judge should have done so in the present case.

47.Since the Court of Appeal’s verdict of unlawful act manslaughter was substituted in error for the jury’s verdict of murder and in light of the various medical reports received by the Court of Appeal demonstrating the respondent’s mental illness, it is appropriate for this Court to exercise its discretion[6] to admit the further medical evidence of Dr Chow and Dr Liu in their reports dated 19 and 23 April 2013 as fresh evidence, the conditions of s.83V(2) of the Criminal Procedure Ordinance, Cap.221, being clearly satisfied in respect of that evidence.

48.In the light of those reports, it is appropriate to substitute, for the jury’s verdict, a verdict of manslaughter by reason of diminished responsibility. The proper sentence remains that imposed by the Court of Appeal, namely a Hospital Order under section 45 of the Mental Health Ordinance for the respondent to be detained in Siu Lam Psychiatric Centre for an unspecified period.

Mr Justice Chan NPJ:

49.I agree with the reasons for judgment of Mr Justice Fok PJ.

Lord Clarke of Stone-cum-Ebony NPJ:

50.I agree with the reasons for judgment of Mr Justice Fok PJ.

Mr Paul Loughran, instructed by the Department of Justice, and Ms Vinci Lam, Ag SADPP of that Department, for the Appellant

Mr Gerard McCoy SC, instructed by W.K. To & Co., assigned by the Director of Legal Aid, for the Respondent