HKSAR v. Nancy Ann Kissel

CAC C 66/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 66 OF 2012

(ON APPEAL FROM HCCC NO. 55 OF 2010)

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BETWEEN

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Hon Yeung VP (giving the Judgment of the Court):

1.On 3 December 2013, we handed down our judgment dismissing the applicant’s application for leave to appeal against a murder conviction.

2.There is now a Notice of Motion which asks this Court to certify under section 32(2) of the Hong Kong Court of Final Appeal Ordinance Cap 484 that the following three points are points of law of great and general importance, namely:

“1. On a charge of murder, where (a) the Defendant pleads guilty to manslaughter on grounds of diminished responsibility but such plea is rejected by the Prosecution; (b) the Defence calls expert evidence from a number of medical experts which unanimously support the Defendant’s plea of diminished responsibility; (c) the Prosecution does not challenge the appropriateness or admissibility of calling expert evidence to establish the relevant mental disorder; (d) the Prosecution does not challenge the expertise of the Defence experts; and (e) the Prosecution does not call any expert evidence to contradict or rebut the Defence expert evidence, whether the trial Judge is under a duty to give special directions to the jury as to the importance of expert evidence and the need to proceed with great caution before rejecting it. In particular, whether the Judge should give the jury directions that :-

(1) mental abnormality is a matter on which psychiatrists are particularly qualified to speak;

(2) the absence of any prosecution expert rebuttal evidence is a relevant and/or significant factor for the jury’s consideration on the issue of diminished responsibility;

(3) they should be cautious before rejecting the unanimous medical evidence that the Defendant did suffer from the relevant mental disorder at the relevant time;

(4) they should not take an unduly skeptical approach towards the defence of diminished responsibility, even though there appears to be a component of rationality in the conduct of the Defendant; and

(5) it is relevant that the expert evidence does not depend solely on factual assertions made by the Defendant.

2. In the circumstances described in Question 1 above, whether:-

(1) the Prosecution is entitled to put forward a positive case and/or positively assert that ‘the defendant was not suffering from clinical depression at the time of the killing’; or that she ‘was not suffering from any clinical illness’; or exclude the existence of mental disorder without calling any expert evidence to support such assertions; and

(2) the Prosecution is permitted to invite the jury to take a layman’s approach and to reach a positive finding or conclusion that the Defendant was not suffering from mental illness.

3. In the circumstances described in Question 1 above, and where the Prosecution has in its possession a psychiatric expert report (commissioned by the Prosecution itself) which supports the existence of mental disorder at the time of the killing but that expert is not called as a witness by the Prosecution, whether:-

(1) the Prosecution has a duty to disclose to the jury the fact that the Defendant was examined by a psychiatrist instructed by the Prosecution, who concluded that the Defendant did suffer from mental problem at the time and he wrote a report confirming to and stating that opinion, before inviting the jury to reject the defence case of diminished responsibility; and

(2) whether the Defence experts are entitled to refer to the fact that such a report exists and support their views as to the presence of mental disorder at the relevant time;

(3) Or alternatively whether Defence counsel are themselves entitled to refer to the fact that such report exists and supports the presence of mental disorder at the relevant time.”

3.We have considered both the written and the oral submissions urged upon this Court.  We are not persuaded that the points posed for our consideration are arguable points of law of great and general importance.  The issues in our view are facts-sensitive and there is no valid basis upon which we can grant the certificate as sought.

4.The application is therefore dismissed.

Mr David Perry, QC and Ms Betty Fu, SPP(Ag), of the Department of Justice, for the respondent

Mr Derek Chan and Mr Benson Tsoi instructed by Boase, Cohen & Collins, for the applicant