Case Detail

CACC001449/1983

IN THE COURT OF APPEAL	1983, No. 1449
	(Criminal)

BETWEEN

THE QUEEN

AND

PANG BING YEE

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Coram: Silke, V.-P., Power & Macdougall, JJ.A.

Dates of Hearing: 3 & 4 January 1991

Date of Judgment: 13 September 1991

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. In the early morning of the 20th July 1981 Yeung Ka Po, a girl aged two years and three months, was certified dead at Kwong Wan Hospital.

3. Pang Bing Yee, a child minder, was indicted upon a charge of murder and, after trial before Mr. Commissioner Leathlean, she was on 26th July 1982, found guilty by the jury of that crime.

4. There had been indicted with her her husband Leung Hoi but on a count of manslaughter. He also was convicted. This court is not now, and has not been, concerned with matters relative to him.

5. No timeous application was made by Pang Bing Yee to appeal against her conviction. On 17th November 1983 His Excellency the Governor referred - under the provisions of section 83P(1) (a) of the Criminal Procedure Ordinance, Cap. 221; "the Ordinance" - the case to the Court of Appeal to be heard as an appeal. The grounds filed on behalf of the appellant contended that the trial judge had erred in ruling that the expert evidence of Dr. Green and Dr. Cantley was not admissible and, second, the trial judge had erred in failing to direct, or adequately to direct, the jury on the provisions of section 65A of the Ordinance.

6. The appeal was determined on 9th May 1984 when it was dismissed - [1984] HKLR 298.

7. The sentence of death passed on Pang Bing Yee was, on 10th September 1985, commuted to 25 years imprisonment of which she had by now served over 9 years.

8. On 6th June 1990 Pang Bing Yee again petitioned His Excellency and, on 14th July 1990 His Excellency acting for the second time under the provisions of section 83P(1) (a) of the Ordinance referred "the whole of the said case" to the Court of Appeal. In other words a second full appeal providing the defence with a bite at an entirely new cherry.

9. Fresh grounds were then filed which, for the first time, took points available both at the trial in 1982 and at the appeal in 1984. The first is that the trial judge erred in directing the jury to disregard the issue of provocation "while there is sufficient evidence of provocation fit to be left to the jury to consider". There then follow seven particulars of alleged provocation.

10. The second resulting from the first, alleged that the trial judge, in consequence of failing to leave provocation to the jury, also failed to give them the necessary directions including a suggested direction on Pang Bing Yee's "characteristics" relevant for the jury's consideration of the issue.

11. The third suggests that the trial judge should, in giving a direction on provocation, - which, of course, he did not - have brought to the attention of the jury "other relevant circumstances which aggravated the provocation".

12. The fourth, and last is, effectively, a roll up ground that the trial judge erred in failing to leave manslaughter as a verdict to the jury.

13. There was also before us, under the provisions of section 83V of the Ordinance, a motion that this court do receive the fresh evidence contained in a report from Dr. Green dated 21st February 1989. This is basically the same point that was taken in 1984 and which this court then rejected. It was not proceeded with.

14. We are aware that this second appeal emerges from what was originally a petition for clemency to His Excellency. Those who advise His Excellency on such matters drew the attention of the appellant's legal advisors to, in particular, a decision of the English Court of Appeal to which we shall refer later. It seems to have been suggested to them that a second petition be filed seeking a referral to this court and this was what was done.

15. We note that counsel who appeared for the appellant at trial expressly disclaimed provocation. This may well explain why - and he was led in the original appeal by Mr. Martin Lee, who also conducts this second appeal on behalf of the appellant - provocation, and the necessary directions, was not raised in the course of that first appeal.

16. The evidence at trial was that the dead child was an unwanted baby whose mother was a dance hostess. She got in the way of the mother's life and was farmed out to various foster parents and child minders. The appellant and her husband came on the scene on 18th June 1981 when, the previous fosterage arrangements having broken down, they took over the care of the girl. They were to be paid $1,000 per month and expenses and the child was to live with them. That payment played a significant role in their finances as neither the appellant nor her husband were well off. The child, not surprisingly, was a difficult one. A previous foster mother had described her as "retarded" - probably a better word would be "backward". The appellant, who was then aged 26, and her husband, who was then aged 60, had a seven year old child of their own. In June 1981 the appellant was again pregnant.

17. There was evidence from a close neighbour that, after the child went to live with the appellant, beatings were administered to the child with a stick. Several of those beatings took place on the days immediately prior to 19th July. As the neighbour put it, in reply to the question "Did these beatings strike you as being unusual,"

"Of course, it was unusual because she beat her every night."

18. He had considered informing the police but did not do so because he and the appellant were neighbours. On the Sunday prior to the death he had heard the appellant say to the child "I'm going to use some hot water to scald you to death." He heard the child crying.

19. On the 1st July another neighbour had heard the child crying and had heard the appellant scolding the child. At that time she had seen the child, who was wearing only a pair of shorts. She saw no marks of injury, or bruises, on her.

20. The appellant in statements made to the police said that, having taken the child in, she found the child failed to indicate when she wanted to go to the toilet and refused to take food. She took only one or two mouthfuls of food every night and that mainly liquid foods like milk. She refused solids. The appellant became angry and struck her with her hands. She spoke to the child's mother without receiving any assistance. As her dislike of the child grew she struck her the more and started using a stick to beat her.

21. In evidence she said that the beatings started about two weeks after the child had been taken into her care. The tempo of the beatings increased during the last few days of the child's life. Beatings with a cane became more frequent lasting about 10 minutes on each occasion. The appellant admitted that, at one stage, she broke a cane in the course of a beating.

22. She found the child, who was unable to talk, totally unresponsive to any sort of treatment, though for the first ten days when the child was in her custody and that of her husband she was able to cope without the use of any physical correction. It was only after about two weeks that her patience ran out and she chastised her. The appellant was particularly exercised by the incontinence of the child who refused to sit on that which she described as the "spittoon", by which we take it she meant a form of toilet commode. She had to force-feed the child because of the child's reluctance to eat. When asked to comment on the pathologist's evidence that most of the injuries he found on the dead child were very recent, being no more than four days old, the appellant said:

"I was very much annoyed because I had a discussion with her mother and asked her permission to feed the child with milk, and she refused. The living conditions there was (sic) very poor, and furthermore I was pressed by my principal tenant to pay her rent, and I was pregnant."

She accepted that the beatings had increased during the last days of the child's life because she, the appellant, was very annoyed at the outcome of the discussion with the mother.

23. The flat in which the appellant and her husband lived was a small one and did not have a window. It was necessary to keep the door open for the purpose of ventilation. The $1,000, which was the care money, had not been paid in advance by the mother and this left the appellant and her husband in difficulty in paying the rent. She had later been paid a first instalment of the care money of $500 on the 28th June and a further instalment of $700 on the 11th or 12th July.

24. The appellant also thought the child was deaf because she did not react to the telephone nor did she learn to speak despite the appellant's daughter being told to give her lessons.

25. On 19th July, the day before the child was taken to hospital, the appellant's husband was out celebrating a festival and at about 8.00 p.m. the appellant attempted to feed the girl with congee. Her own daughter was present at that time. The child refused to eat and when there was food inside her mouth she kept her mouth closed, refusing to swallow for over ten minutes. Having told the child to spit out the food, she re-fed her but the child still refused to swallow. The appellant got angry and scolded her. The child then soiled herself. The appellant said:

"I was very angry and I scolded her and asked her why she did not like to tell people that she was going to obey a call of nature. I was very angry and I then asked my daughter to go to the drawer to get a pair of shorts, and I changed her shorts for her."

The child still refused to eat and, although she had soiled herself shortly before, she had not urinated. The appellant, as she put it, "made her to urinate by asking her to sit on a spittoon."

26. While the child was sitting on the spittoon she used her hand to feel the cooking pots, and her hand became dirty. The child, in the course of playing with the pots, upset the spittoon into which she had urinated. The appellant said that she then cleaned up the floor after which she sat there watching TV and asked her daughter to get her a cup of water.

27. The appellant was asked to explain a statement she had given to the police in relation to this incident and in which she had told the police that "In a fit of rage I hit her thigh with hands first". She agreed that that was true. She had gone on to tell the statement taker that she kicked the child's private parts once. She accepted that that was also true. She described herself as being very impulsive when she kicked the child. In her statement she then said that she told the child to go to bed and, in the course of the night, hear a loud sound which she discovered to be the sound of the child falling onto the floor. The child was unconscious and she sent her to hospital.

28. The appellant maintained the story of the fall in her evidence in chief which may well explain why provocation was expressly disclaimed by her counsel. Further, the appellant denied that, when she kicked the girl in her private parts, she had any intention to either kill or cause severe, grievous bodily harm to the child. She concluded her evidence in chief by saying that when the police told her the child had died she felt very sorry. She also said that she had sought medical assistance for herself because of her pregnancy. She had told the doctor that she was very "temperamental" while pregnant. She had been so when having the first child. She could not control herself. She felt, after the event, that striking the child was wrong. With her own daughter she had had no difficulties.

29. When asked in cross-examination why her experience had differed from that stated in the evidence given by a previous minder, who had said that the dead child ate "greedily", she responded that she did not know whether the child was eating greedily or not before she came into her care but that she had never eaten greedily while in her care.

30. She was strongly pressed in cross-examination by counsel then appearing for the Crown in relation to the incident on the 19th and, in answer to him, she accepted that she had slapped the child on her head causing her to bump against the wall and to fall down. She had hit her again that evening and kicked her but did not remember the sequence of the blows. She had used force but did not know how much force she used. She did not "know" as she put it - we think she meant realise - that her actions could lead to serious injury to the child. And again that she was "so frustrated so angry that I did not know how much force I used." If she had realised that the result was so serious she would not have hit the child.

31. When shown the photographs of the body taken after death she accepted that she had, before the death, seen bruises on it, but only those on the face and not those on the chest for the child was always wrapped up with a towel when bathing.

32. There was evidence from a medical doctor who operated a clinic in Hing Hin Street, San Po Kong that he had on three occasions treated the deceased child for influenza. The last of those occasions was on 4th April 1981. He found no unusual marks on the body of the child at that time nor did he make any record that she was suffering from malnutrition. He would have recorded such a condition had he noticed it.

33. The doctor on duty at the Kwong Wah Hospital on 20th July at about 5.00 a.m. spoke of being brought to see a child in Casualty Unit. The child was then dead. There was a haematoma on the forehead and multiple bruises on the chest and abdomen and a clot of blood on her face. He particularly noticed a bruise in the pubic area which would have been about one to three days old. The blood clot on the face was fresh. He received a history of the child having fallen out of bed but he formed the view that it was impossible for a child to have a one to three days old bruise on the body caused by a recent fall from a bed. He was not, however, prepared to exclude the possibility that, apart from other factors which caused the injuries, there might also have been a fall from a bed.

34. The post-mortem examination was carried out by Dr. Yu, Senior Forensic Pathologist working then in the Kowloon Pathology Headquarters and employed by the Hong Kong Government. He produced his post-mortem report, copies of which were, with consent, available for the jury. There were also photographs of the body to which he correlated the contents of that report.

35. He started by stating that the body was that of a well-nourished child. He then went on to state the injuries he found on the head and face: a recent abrasion in the middle of the upper forehead; a reddish bruise on the left upper forehead; a bluish bruise on the middle lower forehead and a recent abrasion on the right forehead; a brownish-blue bruise on the right eye-lid with a recent linear abrasion on the right face together with a bluish bruise; two linear abrasions on the right face with extensive purplish bruising of the right ear and a laceration at the top of the junction of the right ear and scalp; a bluish bruise on the inner corner of the left eye and a small bluish bruise on the left upper eye-lid, a recent abrasion on the left face and another recent abrasion in front of the top of the left ear; reddish bruises and two small recent abrasions just behind the left ear with a few small reddish bruises on the left ear; a bluish bruise and three small recent linear abrasions just above the upper lip; bluish bruising of both lips.

36. In addition there was an old tear at the junction of the inner surface of upper lip with the gum involving the frenulum and with purplish bruising around it; three recent linear abrasions on the front of the chin; a recent abrasion and purplish bruise on the lower aspect of the chin and a small abrasion of the left front of the upper neck.

37. The trunk: multiple small purplish bruises on the front and sides of the chest; an old scar on the left front of the upper abdomen; purplish bruising on the navel; seven scattered small purplish bruises on front of the lower abdomen; reddish bruises on the pubic region and the inner aspect of groins; reddish bruises on the left upper back; reddish bruise on the middle back; reddish bruise on the middle lower back; a recent linear abrasion on the right lower back; reddish bruises on the left and right buttocks. There were no injuries to the private parts.

38. Limbs: on both the upper and the lower limbs were a multiplicity of bruises, either blue or purple.

39. Internal examination: extensive deep bruising of the scalp at the top and right side - the skull was intact -; a small amount of epidural haemorrnage at the left posterior cranial fossa - the brain was pale and slightly swollen; the right lung was collapsed with bruising of the front of the middle lobe; bruising of the middle front and back of the left lung with a small laceration at the root of the left lung; a bruise at the back of the left auricle of the heart; deep bruising of the middle front of the abdominal wall; blood clots were present in the abdominal cavity; a rupture of the inferior vena cava just above the diaphragm which itself was also ruptured; rupture of the liver.

40. He had found two shallow ruptures at the back of the junction of the right and left lobes of the liver, with another rupture in the upper back of the right lobe of the liver which caused a tear to the inferior vena cava.

41. He also found extensive bruising of the kidneys at the back; bruising around and inside the adrenal glands; extensive bruising of the mesentery of the transverse colon and upper parts of the small gut; bruising of the stomach and the lesser curvature. There were no bone fractures.

42. The cause of death was the rupture of the liver and of the inferior vena cava. The doctor went on to explain that the inferior vena cava is a very large vein present inside the abdominal and chest cavity. This large blood vessel lies along the spine in the abdomen and runs through the liver. Rupture of it is closely related to rupture of the liver.

43. The doctor was asked to give an indication of the age of the bruises. He explained that bruises could be aged, roughly, by their colours: reddish or purplish bruises are less than two days old; bluish bruises are less than four days old. Sometimes colouration could be unreliable. In relation to the bruising of the navel, where there was more than one bruise and with different colours, it was the doctor's evidence that those bruises would have been caused on different occasions. Generally, 90% of the bruises were less than four days old.

44. As to the force used, he was of the view that while the bruising of the pubic area required more than a moderate degree of force, some of the other bruises found resulted from the use of force of that degree.

45. The doctor, though unable to be precise, was of the view that death would have resulted from the rupture of the liver and of the inferior vena cava within three to four hours. The child, upon receiving those injuries, would have had severe pain over the abdomen, gone into shock and, while capable of moving, would prefer to stay still because of this severe pain. The doctor expressed the opinion that all the internal injuries were less than two days old. He accepted that some of the external and the internal injuries might have been caused by falling over or out of a bed. He thought that the bruising of the kidneys, the liver and the lung was unlikely to have been caused by a fall from a bed and that it was nearly impossible for the rupture of the liver and of the inferior vena cava to have resulted from such a fall. The deep bruising of the skull might have.

46. When he made reference to "an old linear scar" or "an old tear", those on the left face and the left trunk were over six months old. The tear at the junction of the lip and the gum was likely to have been one to three weeks old; the one at the upper abdomen was over six months old.

47. The jury were clearly of the view - a view they were entitled to take - that death was not caused by an accidental fall from a bed.

48. It is clear from the medical evidence and the general condition of the body that, while the dead child had received beatings over a period of at least ten days prior to death, the force, severity and number of those beatings had increased considerably in the two days prior to death.

49. We accept as a matter of principle that, even where the defence does not raise the issue of provocation, if there is evidence in the course of the trial which does admit of provocation being left to the jury then the trial judge is under a duty to take that course, just as he is with any defence which emerges from the evidence. A judge is, of course, placed in great difficulty, as was the commissioner here, when the defence expressly disclaims any reliance on provocation.

50. Section 4 of the Homicide Ordinance, which is in the same terms as section 3 of the Homicide Act 1957, provides:

"4. Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

51. In Phillips v. The Queen (1969) 2 AC 130 (P.C.) Lord Diplock said at p.137C-D:

"The test of provocation in the law of homicide is two-fold. The first, which has always been a question of fact for the jury assuming that there is any evidence upon which they can so find, is 'Was the defendant provoked into losing his self-control?' The second, which is one not of fact but of opinion, 'Would a reasonable man have reacted to the same provocation in the same way as the defendant did?'".

52. The Privy Council was there considering the Jamaican equivalent of our section 4 of the Homicide Ordinance.

53. In R. v. Camplin (1978) AC 705 (H.L.) the House had for consideration section 3 of the Homicide Act of 1957. There Lord Diplock said at page 716 - and it is this statement of the law by their Lordships House which bases the appeal before us -:

"Secondly, it makes it clear that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: whether a reasonable man might have reacted to that provocation as the accused did."

54. Great emphasis has been laid on the recent English case of R. v. Doughty (1986) 83 Crim App R 319. We have little doubt that those who, with the certainty of hindsight, advised the Governor did so on the basis of that which was held in that case bearing in mind the provisions of the Homicide Ordinance, of section 65A of the Criminal Procedure Ordinance and the words of Lord Diplock in Camplin.

55. In Doughty, Doughty's wife gave birth to her first child by Caesarean section on January 14, 1985. She was advised to remain in bed upon discharge from hospital. Doughty looked after his wife and the baby and ran the house. He was a conscientious father and cared for the baby well. But he became fatigued. On 31st January 1985 his wife found the baby dead. The death was caused by severe injuries. Doughty admitted responsibility and was charged with murder. In evidence at trial he said that during the night he was very tired and the baby had cried persistently despite being fed, changed and other attempts which had been made to settle him. As a result Doughty lost his temper and had tried to silence the child by covering his head with cushions and kneeling on them. In consequence of this the baby died.

56. At the trial counsel for the appellant had made a submission to the judge that he ought to leave provocation to the jury. This the judge refused to do. He considered that the perfectly ordinary, certain and natural episodes or events in the life of a 17 day old baby not to come within the meaning of the phrase in section 3 of the Homicide Act 1957 "Whether by things done or words said or by both together". He was further of the view that:

"civilised society dictates that the natural episodes occurring in the life of a baby only days old have to be endured and cannot be utilised as the foundation of subjective provocation to enable his killer to escape a conviction for murder."

Doughty was convicted of murder.

57. On appeal it was held (p.320):

"That since there was evidence which linked causally the crying of the baby with the response of the appellant, section 3 of the Homicide Act 1957 was mandatory and required the judge to leave the issue of the objective test of provocation to the jury."

58. The English Court of Appeal found that there had been a misdirection, quashed the conviction of murder and substituted one of manslaughter. In so doing it applied the dictum of Lord Diplock in Camplin.

59. It had been unable to accept the reasoning of the trial judge. Of it Stocker L.J. said, in delivering the judgment of the court, at p.326:

"The reasoning which the learned judge gave, understandable though it was, involves, in our view, adding in to section 3 words which are not there, presumably by way of restriction. It is accepted by Mr. Klevan that there was evidence which linked causally the crying of the baby with the response of the appellant. Accordingly, in our view, it seems inevitable that that being so the section is mandatory and requires the learned judge to leave the issue of the objective test to the jury."

60. Stocker L.J. went on:

"Mr. Klevan also referred us to what might, in shorthand, be called the 'floodgates proposition', that if the learned judge's direction was wrong it opens up the possibility that in any case in which there is a battered baby allegation and the baby dies, the argument based on provocation may be raised. We feel that even if that submission was right it could not be allowed to dissuade us from putting a construction on section 3 which, in our view, its wording plainly constrains. We also feel that reliance can be placed upon the common sense of juries upon whom the task of deciding the issue is imposed by section 3 and that that common sense will ensure that only in cases where the facts fully justified it would their verdict be likely to be that they would hold that a defendant's act in killing a crying child would be the response of a reasonable man within the section. That matter is, in our view, imposed by Parliament upon the jury, not upon a judge, and the common sense of juries can be relied upon not to bring in perverse verdicts where the facts do not justify the conclusion."

61. We must accept, as a matter of principle, that, as Lord Diplock put it in Camplin:

"... if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge,..."

then provocation must be left to the jury.

62. Here, Mr. Lee would have us find that "slight" provocation on the evidence to which we have referred and combined with the characteristics of the appellant herself. We accept that the appellant was pregnant and she testified, when in that condition, that she became, as she put it, "temperamental" and was unable to exercise control. We accept that the family was in financial difficulty and we accept that there was another child of the household to be taken care of. We accept that the family lived in very poor housing conditions and in close proximity one with the other. We accept that the child was a difficult child due, no doubt, to the appalling conditions in which she had been reared to the age of two and a quarter. We accept that the appellant was becoming more and more annoyed with the child because of that behaviour. Further, she had in evidence stated that she had been severely beaten and ill treated by her own mother during her childhood.

63. Mr. Lee has urged upon us that the overturning of the chamber pot - or spittoon as the appellant called it - was the breaking point for the appellant, given her characteristics. He urges upon us that this culmination was provocation within the meaning of section 4 and was causally directly linked to the response of the appellant. This was, he says, enough evidence to bring this case within the terms of Lord Diplock's dicta and to answer the objective test. It would then have been for the jury - and it should have been left to them - to form their own answer to the subjective test.

64. Bearing all that in mind we are not overly surprised, given the way the case was run before him, that the Commissioner did not take it upon himself to leave provocation to the jury. The issue, of course, is: should he have done so.

65. The evidence as to the time of death was not precise. It is therefore impossible to say that death could not have resulted from one or more of the blows that the appellant said that she had inflicted on the deceased on the evening of 19th July.

66. Had the evidence concerning the incident been confined to the appellant's testimony in chief, in which she had given an account of what had happened on the night of 19 July, and had agreed that what she had said in her statement to the police was true, we would have been disposed to accept that nothing which she said in her evidence had established a causal link between the alleged provocative behaviour of the deceased and the act of the appellant which caused the deceased's death. The violence which the appellant said that she had inflicted on the deceased as a consequence of the alleged provocative behaviour consisted of hitting her on the thigh with her hand and kicking on her private parts once. Neither of these blows was inflicted on the deceased's abdomen in the region of her liver.

67. However, the evidence did not stop there. The answers given in cross-examination brought the matter a good deal further. There was, emerging from this, a loss of control evidenced by repeated beatings a short time before death.

68. In the light of all the evidence it was, in our view - a view come to with great reluctance by one of us, in particular given the very late second thoughts by all concerned with this matter and the course of conduct of the appellant - incumbent on the commissioner to leave the defence of provocation to the jury. Had he done so, and assuming that they had concluded that the appellant's account of what had happened might reasonably be true, we think it was unlikely the jury would have thought that the provocation was enough to make a reasonable woman do as she had done. However, we are unable to say that they would inevitably have rejected that conclusion.

69. That being so, we are of the view that this appeal must succeed. We would quash the conviction for murder and substitute a verdict of manslaughter.

70. For myself I would add this: the delay in the delivery of this judgment in a difficult case is one which lies solely at my door and is one which I regret.

71. We are agreed that, subject to any submissions counsel may wish to make, the sentence to be imposed should be such as to effect the appellant's immediate release.

(William Silke)	(N. P. Power)	(N. Macdougall)
Vice President	Justice of Appeal	Justice of Appeal

Representation:

Martin Lee, Esq., Q.C. & Y.L. Wong, Esq. (D.L.A.) for Applicant

A.A. Bruce, Esq. for Crown/Respondent

CACC001449A/1983

[Admission of psychiatric evidence as to intent and credibility in child killing: battered baby syndrome]

IN THE COURT OF APPEAL

	1983, No. 1449
	(Criminal)

BETWEEN

	The Queen
	and
	PANG Bing-Yee
	________

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 9th May 1984

__________

JUDGMENT

__________

Silky, J.A.:

1. The applicant, PANG yew (f), was convicted by a jury of murder. She now appeals against that conviction.

2. A little girl, YEUNG Ka-po, aged two years and three months at her death, had been placed in the care of the applicant and of her husband, Leung Hoi. Leung was tried for and convicted of manslaughter in the same proceedings.

3. The child was that tragic being an unwanted baby. Her mother was a dance hostess. Who her father was we are not aware. From birth she was an encumbrance upon the mother's way of life and was farmed out to various foster parents.

4. On the 18th June 1981, after the then existing fosterage arrangements had broken down, the child was taken over by the applicant and her husband - the applicant having been introduced to the mother of the child by a mutual friend. The arrangement was that the applicant be paid $1,000 per month and expenses. The child would live with her.

5. The child was a difficult one. The previous foster mother had described her as "retarded". We think this really to mean "backward" - not surprising in view of her disorientated background. While she ate "greedily" in the care of the immediately previous foster mother, with the applicant she refused food, failed to digest the food that shaded take, could not speak properly and was incontinent.

6. The applicant who was aged 26 and her husband, aged 60, had a seven year old child of their own. In June 1981 the applicant was Seville months pregnant.

7. There was evidence from a close neighbour of hearing beatings being administered to the child with a stick. Several of those beatings took place in the days immediately prior to the 19th July. The witness heard the applicant shout that she wanted to kill the child.

8. The mother never visited the child while she was in the custody of the applicant though the applicant had, at an early stage, telephoned her to inform her of the difficulties she was having with Ka Po.

9. On the 20th July at 5 a.m. the child was brought,-by Leung to the Casualty Department of Kwong Rah Hospital.. She was dead. Many external injuries were seen.

10. A post mortem examination was carried out. While Ka Po was described as well nourished, a multiplicity of external bruises and abrasions were found upon her head, upon her trunk and upon her upper and lower limbs. In particular there was found a reddish bruise 10 x 4.5 cm on the pubic region and the inner aspect of the groin and a cut wound to the face.

11. It is, unfortunately, necessary in the light of the arguments advanced to us to set out in detail that which was found upon internal examination. This showed: deep bruising of the scalp at its top and right side; a small epidural haemorrhage at the left back cranium; blood and blood clots in both chest cavities; the right lung was collapsed with bruising of the front of the middle lobe; bruising of the middle back .and front of the left lung and with a tear at its root; bruising at the back of the left auricle of the heart; deep bruising of the middle front of the abdominal wall; blood and blood clots in the abdominal cavity; extensive bruising to the back of the kidneys; bruising around and inside the adrenals; extensive bruising of the transverse colon and the upper parts of the small gut and bruising of the stomach at its lesser curvature.

12. Some of the external bruises were less than two days old, some - about 90% - were less than four days old and some were between 'four to ten days old. Some of these, in particular the bruise seer on the pubic area, required more than a moderate degree of force to cause them. A similar degree of force would be required to cause some of the internal injuries. Others would require moderately heavy force.

13. In addition. to all this there was a rupture of the inferior vena cava - a very large vein present inside the abdominal and chest cavities - just above the diaphragm and there were ruptures of the liver. Death resulted from these injuries.

14. It was never the case for the Crown that any of the injuries referred to above were caused by the husband of the applicant. Nor was that suggested by the applicant herself. She admitted losing her patience after the child was about 10 days in her care and beating Ka Po or the hands and legs once or twice per week thereafter. She agreed she beat her more in the last days of her life and that she used a cane upon her more than once. She admitted she kicked her upon the pudenda.

15. It was the case for the Crown that the applicant intended to cause grievous bodily harm and that the nature and extent of the injuries was indicative of this intention. Not that she intended to kill.

16. At the outset of the trial the applicant purported to plead guilty to manslaughter. A plea the Crown refused to accept.

17. The issue for the jury was the applicant's intent or lack of it - was this murder or was it manslaughter.

18. The defence did not raise the issue of insanity, diminished responsibility or automatism.

19. Evidence was led from the applicant that she had had an unfortunate childhood being herself the subject, from the age of nine, of harsh treatment from her mother. She had run away on three occasions, on two of which she had been returned home and upon the third, when she finally escaped, she came into the custody of the man who eventually became her husband. He had educated her and had no sexual involvement with her until the applicant was about 17. It was her case, and this was accepted by the Crown, that she did not plan the death of the child. It was further her case, and this was not accepted by the Crown, that while her conscious mind went with her acts she did not intend their consequence: either to cause death or, more importantly, to cause serious bodily injury.

20. This appeal turns on one major point and that is the refusal by the trial judge, application having been made to him by Counsel then appearing for the applicant, to allow psychiatric evidence to be called in aid of the defence.

21. Mr. Martin Lee, Q.C., with him Mr. Hoo - who appeared below - set out his ground thus:

"The learned trial judge erred in ruling that the expert evidence of Dr. Green and Dr. Cantlay is not admissible. (a) In that such evidence was admissible in respect of credibility. (b) In that such evidence was admissible in respect of intent."

22. There was also a second ground of appeal argued by Mr. Lee and it will be convenient to deal with this before considering the main ground. It is this:

"That the learned trial judge failed to direct or to adequately direct the jury, on section 65A of the Criminal Procedure Ordinance Cap. 221 in respect of the evidence adduced by the prosecution."

23. Section 65A reads:

"(1) A court or jury, in determining whether a person has committed an offence -

(a) shall not be bound in law to infer that he intended or foresaw a result of his acts or omissions by reason only of its being a natural and probable comseuence of those acts or omissions; but

(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances."

24. It is correct that the trial judge did not "read out the section" nor did he make specific reference to its contents.

25. Mr. Lee accepts that Mr. Hoo in his final submission covered this aspect with care. It is his contention that the trial judge undid Mr. Hoo's good work and that in this case, while the jury could have come to the verdict they did upon the evidence, they were denied the help to which they were entitled up on this crucial point. He went on that the section attained great importance in view of the Crown's presentation of their case, in particular their reliance upon the injuries caused in relation to intent and that the trial judge failed to direct the jury that, as a matter of law, they were not bound, to infer the necessary intention from the acts of the applicant. Further the injuries the acts caused did not necessarily raise the inference that the applicant was aware of the natural and probable consequences of the acts. The jury were at large on this upon the evidence.

26. At the start of his summing-up the trial judge gave directions corrective of certain aspects of Mr. Hoo's final submission. These are not criticised but the passage immediately following is, both as to its content and as to its placing.

27. This went:

"Mr. Hoo told you that the injuries in this case cannot speak for themselves. You remember he read a section from the Criminal Procedure Ordinance to you. What that boils down to, for the purpose of this case, is that in deciding whether the 1st accused foresaw death or really serious bodily harm you must look at all the evidence, drawing such inferences as you think proper."

28. Mr. Lee complains that the judge, having left both murder and manslaughter to the jury - the latter in a somewhat erroneous form for he made reference to the applicant's attempted plea at the outset which, not having been accepted, was of course a nullity but nothing turns on this - said:

"In effect, the prosecution is asking you to say that no one could have inflicted those injuries without wanting to do the child really serious bodily harm, or at least without knowing that really serious bodily harm would probably result: 'Remember in deciding that you must look at all the evidence."

29. It is Mr. Lee's contention that there being but one defence - the non-realisation of the consequences of her acts by the applicant - the directions of the trial judge were inadequate in making it clear to the jury that as a matter of law, which they must take from him rather than Counsel, they were not bound to infer knowledge of the consequences from the nature of the injuries inflicted.

30. We do not think these criticisms to be justified. The jury were aware of the provisions of section 65A, which had been drawn directly to their attention by Counsel in the course of his final address. We do not consider that the directions of the trial judge, coming though they did after his corrective directions, in the light of the language used could have left the jury under the mistaken impression that these directions were also intended to be corrective. He did make it clear to them in the last passage quoted above that, in their consideration of the Crown's case, they must look at "all the evidence" which evidence goes beyond these acts and the injuries caused.

31. The directions were in our view sufficient as they stood so that the mind of the jury was directed to the correct approach.

32. The main ground arose thus: at the close of the case for the prosecution, and after submissions had been made in respect of Leung, Mr. Reid, who appeared for the Crown at trial, indicated to the trial judge that a matter of law arose which would affect the conduct of the defence of the applicant. It concerned the admissibility of evidence and the defence required a ruling before deciding on what, if any evidence, they would call.

33. Mr. Hoo then made submissions which related to the evidence of two psychiatric witnesses which he stated would go towards an issue in this trial, in fact the sole issue - namely, the intention of the 1st accused, whether she did intend to kill or cause grievous bodily harm at the time of these alleged beatings."

34. The two psychiatric reports were handed to the judge for, as Mr. Raid said, it would be impossible to rule upon the submissions until they had been read.

35. The reports having been read by the trial judge, Mr. Reid then went on to state his objections relying in the main on R. v. Chard⁽¹⁾ and R. v. Turner⁽²⁾. He stated that he had been informed by Mr. Hoo that each of the psychiatrists would orally say that they were of the opinion that the applicant did not form the requisite intent to kill or cause grievous bodily harm at the time she inflicted the injuries. The application was refused.

36. Generally, evidence as to the intent in the mind of a person accused of committing a crime must be proved directly by the prosecution. By directly we mean by evidence at the trial of that person which can lead the jury to find that person guilty.

37. Such intent can be negatived by evidence led to show the accused as being incapable of forming it. The obvious example is insanity within the meaning of the M'Naughton Rules. Also, by statute, diminised responsibility is now available in its context and, if the conscious mind does not go with the act, automatism - first brought into the field of criminal law in the summing-up of Barry J. in Charlson⁽³⁾ can also be availed of. Drunkenness is a less obvious form of defence with which I shall deal later.

38. The overriding characteristic of all of these is the lack in an accused. of a conscious mind by reasons of failure, due to disease or abnormality of the mind, to appreciate his acts. The category is limited and rightly so. It is for the jury to come to their conclusions and not for psychiatrists, however eminent, to try the case. This has been said in the past and remains true today.

39. It is Mr. Lee's submission that here, while the conscious mind of the applicant was with her acts her intent to kill or cause grievous bodily harm was, at the very least, obscured by her suffering from "battered baby syndrome" "the syndrome" - resulting from the treatment she herself had received when a child. He would say that the intent did not exist at all and that this was a factor which should have been before the jury so that they on the whole of the evidence could reach their verdict. By the refusal of the trial judge to allow the psychiatric evidence, the jury were prevented from considering a vital aspect of the defence and thus the applicant was deprived of the benefit of a verdict of manslaughter.

40. It is not Mr. Lee's contention that the syndrome is a general defence. He says that it is relevant as a defence in a child battering case. We do not think that it can be compartmentalized in this manner. A personality disorder is not, of itself, a defence in law. To succeed Mr. Lee would have to persuade us that the syndrome is a defence by reason of a mental disorder - mental abnormality or disease or the mind. This goes much further than the evidence as it stood before the ,trial judge at the time of his ruling and would be much further than we are prepared to go on that evidence.

41. In Turner⁽²⁾ - a case where upon a charge of murder the defence sought, and were refused, the calling of a psychiatrist to give his opinion based on information, culled from medical records, the defendant, his family and friends, that the defendant was not suffering from mental illness, that he was not violent by nature but that his personality was such that he could have been provoked in the circumstances and that he was likely to be telling the truth - a case very different from that here - Lord Lawton said at page 841:

"A man's personality and mental make up do have a bearing upon his conduct ....... These are matters of ordinary human experience. Opinions from knowledgeable persons about a man's personality and mental make up play a part in many human judgments. In our judgment the psychiatrist's opinion was relevant."

42. For the sake of the argument here we would go that far along Mr. Lee's road.

43. Lord Lawton continued:

"Relevance, however, does not result in evidence being admissible: it is a condition precedent to admissibility. Our law excludes evidence of many matters which in life outside the courts sensible people take into consideration when making decisions. Two broad heads of exclusion are hearsay and opinion."

44. The Court then posed itself the question "Was it (the psychiatric evidence) inadmissible because of the rules relating, to opinion evidence?" and went on to consider Folkes v. Chadd⁽⁴⁾; Lowery v. The Queen⁽⁵⁾ and to make references to that which lies at the centre of Mr. Lee's submission on admissibility: whether an expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge and jury. For it is his contention that the information which the psychiatrists could give on the syndrome is such as is outside that experience and knowledge.

45. It must be remembered that we are here considering the exercise by a judge of his discretion. While the arguments before us have been developed at much greater length - this is not a criticism - and in a somewhat ,different way than they were before the trial judge we are in possession of no greater evidence than he - with one exception. That exception takes the form of notes of a conference in which one of the psychiatrists took part and wherein he says that the applicant displayed the classic symptoms of a baby batterer - and why - that she was pregnant and went on to make reference to her "personality disorder" being affected by that pregnancy. The psychiatrist went on, as he did in the report read by the trial judge to give his direct opinion on a matter which lay solely for the consideration of the jury - that at no time did she intend to-kill or seriously injure the child.

46. We would therefore pose to ourselves the question: in the circumstances here - that is the continued beatings over a period culminating in a beating or beatings which caused such grievous injury to the young child that as a result of them she died - was there scientific information available relating to an abnormality or disease of the mind of the beater such as would be outside the experience and knowledge of a judge and jury and which would negative the intent - or at least allow the jury to consider it negatived - necessary for a conviction for murder? We think this to be the criterion for the admissibility of the psychiatric evidence.

47. Mr. Alderdice, with the fairness which we have come to associate with him, made a concession. He said if there were evidence available that the appellant suffered from battered baby syndrome and that that could have affected her capacity to form an intent or her realisation of the likely consequence of her acts then the jury would have required expert evidence of that state or syndrome before they could come to a verdict. He was concerned with whether or not the applicant had had a fair trial and, further, that all matters should be before the jury which would adequately equip them to consider their verdict.

48. In the circumstances here we would accept this as a concession on relevancy but not as a concession that the evidence was admissible.

49. There was nothing before the judge to suggest that the defence application was directed to anything other than intent. It is suggested here that it was also directed as to credibility but we do not think that the question of intent can be separated from the question of credibility in this way. For it all depended on whether or not the appellant was capable of forming the necessary intent which upon their view of the evidence as a whole, including that of the applicant herself, the .jury had to decide. There was nothing to suggest that the syndrome was anything greater than a personality disorder. It might be, and we put this no higher and express no decided opinion upon it, that the syndrome could be shown in a trial within a trial on the aspect of admissibility to come within one of the required definitions of mental abnormality, to use a ;neutral phrase. It is not enough for such evidence to be admissible to show that a person is "not quite normal” within the law as it now stands.

50. We accept the principle enunciated in Smith⁽⁶⁾ where psychiatric expert evidence called by the Crown was held to be relevant and necessary to help the jury determine whether Smith's defence of automatism was valid - that even if the flood gates are opened it is our concern to do justice and to see that the applicant is not deprived of a fair trial.

51. I promised to refer to the matter of drunkenness and its possible relationship to the evidence sought to be introduced here both on the issue of intent and of credibility. This also impinges, in the light of Hyam v. DPP⁽⁷⁾, on Mr. Lee's section 65A point.

52. At first blush we had thought there to be a possible correlation but upon a perusal of the authorities we do not think such correlation here exists. The applicant was fully aware of the nature of her acts, there was no suggestion of any recklessness, mistake or lack of a conscious mind. It is the ability to appreciate the effect of those acts which she attempted to call into question. The acts were clearly voluntary ones. The issue of intent was intermingled with that of credibility in that both lay for the consideration of the jury. Murder being a crime of specific intent uncontrollable impulse, if it exists, does not go as far as a defect of reason sufficient to negative intent by rebutting the presumption of sanity.

53. That having been said, we do not think the trial judge to have exercised his discretion wrongly nor do we think that, in the circumstances here, the psychiatric evidence was admissible evidence.

54. In the event the appeal is dismissed.

(1)	(1972) 56 Cr. App. Rep. 268
(2)	[1975] Q.B. 834
(3)	[1955] 1 W.L.R. 317
(4)	(1982) 3 Doug. K.B. 157
(5)	[1974] A.C. 85
(6)	[1979] 1 W.L.R. 1445
(7)	[1975] A.C. 55

Representation:

Martin Lee, Esq., Q.C. with A. Hoo, Esq. assigned by D.L.A. for applicant.

G.W. Alderdice, Esq for Crown/Respondent.

THE QUEEN v. PANG BING-YEE

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"(1)	A court or jury, in determining whether a person has committed an offence -
	(a)	shall not be bound in law to infer that he intended or foresaw a result of his acts or omissions by reason only of its being a natural and probable comseuence of those acts or omissions; but
	(b)	shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances."