THE QUEEN v. MA ON
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CACC000636/1989
| IN THE COURT OF APPEAL | 1989, No. 636 (Criminal) |
BETWEEN
THE QUEEN
AND
MA ON |
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Coram: Hon. Silke, V.P., Power & Penlington, JJ.A.
Date of hearing: 21 November 1990
Date of delivery of judgment: 21 November 1990
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JUDGMENT
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Penlington, J.A.
1. This is an application for leave to appeal against a conviction on a charge of murder before Ryan, J., and a jury.
2. Mr. Sedgwick, leading counsel for the applicant both here and the trial, appears with Mr. Ramanathan, also his junior at the trial. He informs us that following the conviction he was asked to advise by the Director of Legal Aid as to whether there were arguable. grounds of appeal. His advice was that there were no such grounds. However, as this was a capital offence and because of the nature of the evidence, the Director of Legal Aid very properly sought advice from other leading criminal counsel. 'That advice was the same. Clearly therefore everything possible has been done to see that, if there were any grounds that could be argued, they would be before us today. Mr. Sedgwick, however, in accordance with the traditions of the Bar, appears to assist in any way that we might request.
3. The facts of this matter were tragic in the extreme. There was no dispute that on the 30th January 1989 a young girl, Ho Pui Wah, aged 16, was on her way home when she was approached by the applicant who asked for her assistance in filling in some travel documents. She agreed to do so and she went back with the accused to his home. There was no suggestion of any sexual advances or anything of that nature but clearly tile girl became frightened, tried to leave, and the applicant then attacked her and killed her. There is no point here in going into further details of the matter as it could only cause distress to the girl's family. The applicant tried to dispose of the body and these efforts came to the attention of an alert police officer, a constable Yim, who together with his colleague sergeant Chan, made investigation.
4. When questioned the applicant made a full statement admitting the offence and that statement was in no way challenged at the trial. The sole issue was the question of diminisned responsibility, in accordance with Section 3 of the Homicide Ordinance. There are two requirements in that section which, if met, would have the effect of reducing murder to manslaughter. The first is if the accused was suffering from an abnormality of the mind; the second is whether that abnormality substantially impaired his mental responsibility for his acts and omissions. Medical evidence was called oh these two aspects. That evidence came from a Dr. Singer, called by the defence, and Dr. Law for the Crown. Dr. Singer was of the view that there was an abnormality of the mind and indeed from the background of this matter that would be a proposition with which the jury probably would have had little difficulty in agreeing. Dr. Law was not as certain in his opinion but nevertheless would not disagree with that conclusion. However on the question as to whether the abnormality substantially impaired the applicant's mental responsibility both doctors indicated that this was really a question of fact and was a difficult one for expert medical opinion. Certainly, however, Dr. Singer when directly asked on this question declined to state that he thought that the abnormality did substantially impaired the applicant's mental responsibility. Dr. Law was firmly of the view that the abnormality did not so impair the applicant's mental responsibility.
5. The law related to the question of diminished responsibility and the evidence were clearly and fully set out by the trial judge in his summing up and no complaint could be made of those directions. The jury were perfectly entitled to, and indeed it was perhaps inevitable on the evidence, come to the conclusion that the defence of diminished responsibility had not been made out.
6. The applicant, speaking on his own behalf, has asked us to reduce the charge to one of manslaughter so that he can receive a definite term of imprisonment. We are however satisfied that this was a proper conviction and one with which we have no reason to interfere. The application is therefore refused.
7. We are grateful to counsel for their assistance in this matter.
Justice of Appeal |
Representation:
I.G. Cross, Q.C., & W.S. Cheung for Crown
A. Sedgwick, Q.C., & K. Ramanathan (D.L.A.) for Applicant