Case Detail

HCCC 329/2018

[2021] HKCFI 19

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2018

_________________

	HKSAR
	v
	NG Yan‑kin	Defendant

_________________

Before: Hon Campbell‑Moffat J in Court

Date of Hearing: 2 November 2020

Date of Ruling: 3 November 2020

________________________

R U L I N G

________________________

Introduction

1. This is an application by Mr Percy on behalf of the defendant, Ng Yan‑kin, who is charged with one count of Murder, in that it is alleged that he killed Li Sin‑heng on 16 September 2017, by stabbing her multiple times. He does not dispute that he killed Ms Li. The defendant maintains that he was suffering from diminished responsibility at the time of the killing. He has no memory of the immediate events surrounding her death.

2. Mr Percy objects to handwritten notes (“the Notes”) made by the defendant, and currently identified as MFI/16, going before the jury as an exhibit. He does not however object to reference being made to the contents of the Notes, either in chief or under cross‑examination. His objection is simply that they should not be copied and placed before the jury. Mr Percy objects on that basis that:

(i) The disclosure of the notes to Dr Wong Yee‑him, a psychiatrist and to Ms Felicia Lau, a clinical psychologist, was made inadvertently by the then defence instructing solicitors and without instructions so to do; and
(ii) The prejudicial effect of the contents of the notes outweighs any probative value.

He therefore asks the Court to exercise its discretion not to allow the jury to have sight of the Notes even although they will have heard the contents.

3. In strictly procedural terms, this application is somewhat problematic as the Notes have been relied upon by Dr Wong and Ms Lau in their reports of 19 and 20 September 2019 respectively, which have been served upon the prosecution by the defence under section 65DA of the Criminal Procedure Ordinance, Cap 221. As such they form the basis of their expert opinion. The defence have served copies of the Notes upon the prosecution. Ms Lau will be a defence expert witness. Dr Wong has since been abandoned by the defence and has been called as a prosecution witness. As expert witnesses, it should matter not for whom they are called as their overriding duty is to the Court.

Background

4. The notes are referred to by Dr Wong as item xii) of his report dated 19 September 2019 at page 2 and by Ms Lau as item 4 of her report dated 10 September 2019 at page 1. The Notes were purportedly made by the defendant on or about February or March 2019, which was some five months after committal of this matter to the High Court, by which stage I assume the defendant was in possession of the committal bundle. There should, therefore, be in existence an original of the Notes and a record on file of how and in what circumstances his instructing solicitors came to be in possession of them. Discovery of that original and of any note as to how it came to be in possession of the solicitors has been problematic. The chronology may become important to this application because it appears that the document provided to the prosecution during this trial, and upon which they wish to rely, has been edited.

5. In February/March 2019, the defendant was represented by Messrs Fan, Wong & Tso. They had the handling of this matter during committal from July 2018 to 23 April 2019, at which time their services were dispensed with. Mr Percy has at all times represented the defendant as counsel since 2018. He informs the Court that he was provided with a translation of the documents by Fan, Wong & Tso but has never seen the original, which was presumably in the hands of his instructing solicitors as it was in Chinese. Miss Li attended court on behalf of Fan, Wong & Tso to answer for their conduct in this matter. She was not the handling solicitor. That was her supervising partner Mr Daniel Wong. She told the court that all relevant documents were sent to Tang, Lai & Leung when legal aid was re‑assigned to them on 23 April 2019 and that all originals would have been forwarded at that time. Only copy documents remain in their hands, one of which is a photocopy of the Notes in edited form. They do not have the original Notes and they do not possess a copy of the notes in unedited form.

6. On 23 April 2019, Messrs Tang, Lai & Leung took over as defence solicitors, also instructed by the Director of Legal Aid. At this stage all relevant papers and files, according to Ms Li, should have been passed to this new firm of solicitors. The Court has not been provided with any evidence as to when Dr Wong or Ms Lau were instructed. Their respective reports post‑date the introduction of Messrs Tang, Lai & Leung but as the assessments took place upon the 12 and 26 July 2019 respectively, Dr Wong and Ms Lau may have received their bundles before or after the handover from Fan, Wong & Tso to Tang, Lai & Leung. Nevertheless, the Court would expect these instructions to be upon any file raised by one or other solicitor and a copy of what was served to be attached.

7. The issue of exactly what was served upon Dr Wong and Ms Lau may become important as the document currently before the Court is a copy and is edited. If this is the state of the document provided to Dr Wong and Ms Lau then it is to this document in its current form that the court must have regard. If, however, the document which was disclosed was the unedited version, then it is to that document the Court must have regard. The date of any such editing therefore falls to be considered. Mr Percy submits that his client edited the document himself. That begs the question as to when he did so and why he should have done so, if the basis of this current application is that there were no instructions for the onward transmission of the Notes beyond his legal representatives. In any event, Mr Wong of Tang, Lai & Leung attended court to answer for his handling of the matter. He was the partner in charge. He has no independent recollection of events but has confirmed that his firm no longer retains an original of the Notes and that, in accordance with normal practice, he would have expected to pass them on to Francis Kong & Co who took over from them on transfer of the legal aid certificate on 25 February 2020.

8. Ms Pannu of Francis Kong & Co attended court to answer for their handling of the matter. She is not the partner in charge. She maintains on behalf of Francis Kong & Co that they are not in possession of the original of the Notes either. It is most unfortunate that when this matter was first raised some days ago that this firm of solicitors did not progress the query properly. They made no effort to ascertain the whereabouts of the original document to the satisfaction of the court such that the court had, by its own direction to seek the attendance of other members of the law profession in order to ascertain the whereabouts of the original of this document. The handling of this matter throughout does not appear to have been carried out in the professional manner to be expected of a member of the Law Society of Hong Kong. The lack of specificity in handling client documents is most disturbing. However, there is nothing more that can be done and the Court must proceed on the basis most favourable to the defendant, that the current edited copy document is the only one which was in the possession of the solicitors and therefore in the possession of the relevant expert witness.

The Prosecution Case

9. The prosecution wish to put the Notes before Dr Wong and reserve their right to put the Notes before Ms Lau and before the Defendant, should he choose to give evidence. The prosecution maintain that the Notes are prima facie admissible as they provided information upon which the experts formed an opinion. Mr Percy does not gainsay this. Mr Lai on behalf of the prosecution submits this application is without merit as the majority of the contents of the Notes are already known to the parties and will be known to the jury as they have been referred to within the various reports. Moreover, he submits the Notes should not be distinguished from other materials relied upon in the expert reports before the jury including those where it has been agreed no witness will be called. This is perhaps a step too far as clearly handwritten notes by the defendant himself as opposed to medical reports or tests, do stand in a category of their own. They are akin to an interview by the police except that the defendant would not have had the benefit of being advised that he may remain silent. This is not an issue raised or relied upon here by the defence and the Court has not been asked to consider it, albeit it is conscious of the distinct nature of these documents.

10. The prosecution argue that the Notes are both relevant and admissible. Relevant because they show the different instructions given by the defendant to different expert witnesses at different times and that goes to credibility. They are also relevant because they set the scene, according to the defendant, as to what occurred leading up to the killing even though he says he can give no evidence beyond his arrival in the taxi at the Island Resort Mall. Lastly, it evidences his emotional state of mind in the preceding days. It is against this background as a whole that the prosecution submits the jury should be allowed to assess the weight to be given to the opinion of Dr Ho as well as to those of Dr Wong and Ms Lau.

11. Perhaps the most cogent evidence put forward by Mr Lai is that the content of the whole document will be before the jury in any event as Mr Percy does not object to it being put to the relevant witnesses including his own client. He accepts it is relevant and prima facie admissible. The onus is therefore on him to show that either the prejudicial effect of the Notes being placed before the jury or the interest of justice require that I exercise my discretion to disallow that to be done.

Conclusion

12. If this evidence is relevant and admissible and it is accepted that the jury are entitled to listen to evidence and to attach what weight to it they consider appropriate in all the circumstances of the case, I find it wholly artificial to say to them that they are not entitled to have the document itself before them unless there is something which is actually prejudicial contained within it and which, in my discretion, I consider they should not see. However, I have not been provided with any such evidence of prejudice by way of submission. Indeed, Mr Percy concedes there is none. He submits it is simply unfair for this document to be before the jury within the prosecution case when it should be before the jury as part of the defence case when the defendant can explain it to them. That may be his preferred course but that argument provides no basis in law for the Court to exclude it. It has been relied upon, it has been disclosed and it contains nothing which suggests any prejudice to the defendant. Indeed, it appears on the face of it to be consistent with the general basis of his case. The defendant accepts he made it and he accepts he edited it but according to Mr Percy he gave no instructions for it to be provided to the defence solicitors although I have heard no evidence on this point even though Mr Percy had the opportunity to raise it when the court required the relevant solicitors to attend and when two out of three firms of solicitors ignored that request and sent junior members of the firm without first‑hand experience of the handing of the documents. That was a matter for the defence to raise and to establish on the evidence and they have not done so despite being provided with ample opportunity.

13. In all the circumstances, the prosecution may produce this document to Dr Wong and if proved, may have it exhibited and placed before the jury for ease of reference for them to understand the purport of what is being asked and, in due course, what the defendant says about it, if he chooses to give evidence, which of course he is not obliged to do.

14. The defence have leave to re-visit this application if it becomes appropriate in due course.

(A P Campbell‑Moffat)
Judge of the Court of First Instance
High Court

Mr Derek Lai SADPP and Mr Gary Leung SPP, of the Department of Justice, for HKSAR

Mr Duncan Percy and Ms Josephine Chiu, instructed by Francis Kong & Co, assigned by the Director of Legal Aid, for the defendant

HCCC 329/2018

[2020] HKCFI 2693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 329 OF 2018

________________________

	HKSAR
	v
	NG Yan-kin	Defendant

________________________

Before: Hon Campbell-Moffat J in Court

Dates of Hearing: 12, 14-16 October 2020

Date of Ruling: 19 October 2020

________________________

R U L I N G

________________________

Introduction

1. The defendant, Ng Yan-kin, is charged with one count of Murder, in that it is alleged that he killed Li Sin-heng on 16 September 2017, by stabbing her multiple times. Ms Li was 20 years old at the time of her death and a student of the School of Nursing at Hong Kong Polytechnic University. She lived with her parents at Island Resort in Siu Sai Wan. The defendant was 22 years of age, had just graduated with a degree in civil engineering from the same university and had been working as a civil engineer since July 2017. He lived with his parents in Tin Wan House on the Shun Tin Estate in Kwun Tong.

2. The defendant and Ms Li had been in a relationship since July 2016 and were still together at the material time in September 2017. The relationship had not been going smoothly for some time. The evidence suggests that the defendant was a possessive boyfriend, who was jealous of Ms Li mixing with other men and who attempted to control with whom she associated. She was not happy about this. In the early hours of 16 September 2017, the couple had been together and had a meal during which the conversation had returned to a number of issues over which they disagreed, including a continuing issue of whether Ms Li should attend the university orientation camp and also, the return (or destruction) of video clips of an intimate nature. The audio evidence at P1 & P5, suggests that the relationship deteriorated over a period of three hours in the early morning of 16 September 2017. By the afternoon of the same day it had deteriorated further as it appears that Ms Li had scolded the defendant for not destroying a particular intimate clip which he must have suggested he had already done at some earlier stage. Not everything has been recorded of the events that night but one reading of the audio tapes and CCTV suggests that the relationship had run its course and they were splitting up although there is no direct evidence of this. Certainly their body language on the videos captured at that time do not suggest a couple in love but equally neither does it suggest a couple at odds with each other.

3. At 15:43 on the afternoon of 16 September 2017, the defendant purchased a large kitchen knife from a JHC store within the Island Resort mall. At 15:55, Ms Li left home and went to the Island Resort bus terminus in order to make her way to her part-time job as a waitress. The CCTV at P7 shows the defendant also in the bus terminus but some distance behind Ms Li. She enters the bus first followed by the defendant. It is not known at what stage she is aware of the defendant’s presence or, indeed, whether this meeting was pre-planned, but they eventually sit together on the upper level. This is at 15:58. Between then and 16:04, they appear to be talking to one another. At 16:04:22, the defendant, without warning, takes out the kitchen knife and stabs Ms Li repeatedly over a period of just 20 seconds and then stabs himself, breaks a window and jumps out of the top floor of the bus onto the pavement below.

Application

4. The defence have served expert evidence in the form of a psychiatric report of Dr Robyn Ho dated 18 June 2020, upon the prosecution under section 65DA of the Criminal Procedure Ordinance, Cap 221. They had originally also served expert reports from Dr Wong Yee-him, a psychiatrist and Ms Lau Lok-yan, a clinical psychologist, but they no longer seek to rely upon those. They seek to rely upon Dr Ho’s expert opinion alone in respect of the partial defence of diminished responsibility. This is the only defence to be advanced.

5. This is an application by Mr Derek Lai on behalf of the prosecution, to be allowed to call rebuttal evidence at the end of the defence case in respect of that issue. That evidence is to consist primarily of psychiatric reports by Dr Harriman and Dr Liu. There is a possibility of a third psychiatric expert but whether or not that evidence will be relied upon does not affect this ruling. Within this ruling, I will simply refer to all such evidence, both from the defence and the prosecution, as expert evidence.

6. Mr Lai submits that there is ample authority for the course of action he seeks. He maintains that it has become a practice in the High Court for experts on this issue to be called after the close of the defence case by way of rebuttal. He supports that contention by reference to HKSAR v Jutting CACC 361/2016; HKSAR v Husnain Safdar CACC 39/2018; HKSAR v Fok Lap Yin Ian Lee Christoffer CACC 291/2014 and HKSAR v Lau Kai Hoi CACC 62/2011, relying upon references therein to evidence given ‘in rebuttal’ but which do not actually allude to the timing of the calling of that evidence or to any submissions as to the propriety of such a course of action. For that he relies upon R v Clough [2009] QSC 231 in the Supreme Court of Queensland (a trial at first instance); R v Hughes [2012] QCA 208, an appellate decision of the Queensland Court of Appeal and R v Hanson [2005] EWCA Crim 1142, a decision of the Court of Appeal of England and Wales. Only in Clough supra, does the Court allude to the timing of the evidence as being after the close of the defence case and that case can, in any event be distinguished. In Clough, it was accepted that the defendant was suffering from a psychotic disorder. The real issue before the Court was one of self-induced intoxication, which, under section 28 of the Criminal Code of Queensland, did not allow the defendant to avail himself of a defence of diminished responsibility unless he could show on a balance of probabilities that the mental disease was of such severity that it deprived him of capacity regardless of the intoxication. How this issue arose, whether it was foreseen prior to trial and the extent of any admissions as to his abnormality of mind, cannot be ascertained from the judgment and therefore this court does not know why or in what circumstances the rebuttal evidence arose such as to warrant an exercise of judicial discretion to allow it to be called at the end of the defence case.

7. The prosecution was given the opportunity to address the Court further upon this application and provided a helpful submission relying upon further authorities from Australia and a decision of the Hong Kong Court of Appeal in HKSAR v Y.H.M. CACC 82/2016 (“YHM”). Unfortunately, YHM is of little assistance to the Court in the present circumstances as the underlying offence was that of indecent assault. The issue before the Court was in respect of the mental capacity of two very young vulnerable witnesses and not that of the defendant and there was no issue of the burden of proving any defence upon the defendant. For the reasons approved by the Court of Appeal, the judge at first instance allowed the calling of evidence in rebuttal at the end of the case for the defence. In coming to that view, perhaps the most important aspect of the decision of the Court of Appeal was that ultimately, the issue was whether or not the Judge’s approach was unjust to the defendant and therefore rendered the trial unfair?

Common law principles

8. There is a general and well-established principle that the prosecution will call all of the evidence upon which it seeks to rely within its own case, “if it then be available”. This has been referred to both as the ‘ex improviso’rule. This should be distinguished from series of cases where the prosecution has sought to ‘split its case’for they are not the same and yet the two appear to have been the subject of some overlap. No matter how it is referred to or the purpose for which it is to alter the usual chronology for the calling of evidence, the established legal principle is that if the prosecution can reasonably foresee that a particular piece of evidence has to be adduced to prove the offence, they must produce the evidence to the court as part of their case and should not wait until the defendant has finished giving evidence[1]. The discretion of a trial judge to allow evidence in rebuttal, which is an exception to that rule falls within the ex improviso rule. There have also been situations in which it has been ruled in the interests of justice for the prosecution to split its case but the discretion of the trial judge in either situation is not unlimited. It is confined primarily to cases where the prosecution could not reasonably have been expected to produce the evidence as part of their case[2] but has been extended to situations where the prosecution has shown good reason for not producing the evidence within their own case, otherwise the trial judge should generally not allow it to be called. Where an application is made at the beginning of the proceedings, it clearly does not arise ex improviso. There must be some other good reason to allow the prosecution to split its case. It would appear that the Court should ask itself the following:

a.  Is the evidence in question required as part of the prosecution case to establish a fact in issue or to establish evidence in support of a fact in issue? If so, then it should generally be called within the prosecution case.
b.  Was this evidence foreseeable? If so, it should generally be called within the prosecution’s own case.
c.  For what purpose is the evidence to be called?
d.  If it does not arise ex improviso, is there some other good reason to allow the prosecution to split its case and to call the evidence sought to be produced at the end of the defence case?
e.  Where does the interest of justice lie? Should that evidence be allowed to be called after the close of the defence case under an exercise of judicial discretion.

Is the evidence required to prove the prosecution case?

9. In considering whether the common law rule should be abrogated where the partial defence of diminished responsibility is to be raised, as is submitted by Mr Lai, the Court should first consider whether the prosecution should properly call such evidence in order to prove their case or to disprove or undermine the case for the defence.

10. In strict terms, it is possible that the prosecution does not require expert psychiatric evidence to prove their case of murder save that they may only prove intent to kill or to cause grievous bodily harm by asking the jury to draw an inference from proven facts. They have no direct evidence of intent. Indeed, the evidence is to the opposite i.e. an intention to kill himself rather than to kill or harm the deceased. If all other things were equal and no defence was raised by the defendant, they may very well approach a straight forward case of murder in that way. But all other things are not equal in this case and the issue of his mental capacity has been raised. Whether that is raised by means of the partial defence of diminished responsibility, or in some other manner which brought into play the defendant’s mens rea, it might very well have been necessary for the prosecution to rely upon psychiatric evidence in support of their case especially as we know the defendant was hospitalised after the incident, initially in Castle Peak Hospital Psychiatric Unit and thereafter on 18 October 2017, he was remanded to Siu Lam for a short period of time until 24 February 2018. The defendant’s state of mind was and is in issue. It cannot be ignored. The facts of the case place it squarely before the jury. It is therefore incumbent upon the prosecution to adduce a case sufficient to be able to ask the jury to draw an inference from proven facts, which must be the only reasonable and irresistible inference to be drawn. Unless it seeks to do that in reliance upon the cross-examination of the defendant and/or the defence expert, the prosecution could not properly seek to ask the jury to draw that inference without more. Any such evidence would have obviously been the expert evidence of the state of mind of the accused immediately after the events in question from Dr Harriman or at least within a reasonable period thereafter from Dr Liu.

11. If I am correct in that then the prosecution should properly call such evidence within its own case.

Was it foreseeable?

12. Even if I am wrong in taking the view, on the facts of this case, that it should have been foreseen by the prosecution that there was a need to advance evidence of the state of mind of the defendant in this case where it sought to prove the intention of the defendant by the drawing of an inference, the issue of diminished responsibility was raised very early in the proceedings. The prosecution were aware in advance that this was the only defence to be run. They knew this was to be an effective trial and that there was no suggestion that the defendant intended to plead guilty to murder. They accept that they would need to rely at some stage upon the evidence of Dr Liu and, as events have unfolded, now foresee that they will also need to rely upon the evidence of Dr Harriman. They must do so in order to ask the jury to find that the defendant has not proved on a balance of probabilities that he was suffering from an abnormality of the mind such that his mental responsibility for the killing was diminished. There is therefore no question but that this issue was foreseen. This application does not therefore fall to be considered under the ex improviso principles but instead as an application to split its case.

13. The prosecution simply submit that its proper place is after the defence case and not as part of their own case because they do not need it in order to prove their case against the defendant. They say they do not need to call either expert to prove their case. They say they can do that by calling the medical evidence and evidence adduced by way of admitted facts and ask the jury to infer the necessary intent given that the defendant admits killing Ms Li. The prosecution submits that they are entitled to call the evidence of Dr Liu and Dr Harriman in rebuttal i.e. at the close of the defence case because it is just that, rebuttal evidence and rebuttal evidence must go last. The argument is a simple one. It is for the defence to prove on a balance of probabilities that the defendant’s mental responsibility for his acts was diminished at the time of the killing and so their answer to that, once raised, must be evidence in rebuttal. I think that is, with the greatest respect to Mr Lai, far too simplistic, as can be seen from the comments above. In all other situations, where an evidential burden is placed upon the defendant, there is no question of splitting the prosecution case only when such burden has been satisfied. I see no good reason why, without more, there should now be an accepted practice that the prosecution may do so automatically where the legal burden shifts in cases of diminished responsibility.

For what purpose is the evidence to be adduced?

14. As already mentioned, Mr Lai seeks simply to answer the matter of diminished responsibility once raised by the defence, which is why he says this is clearly rebuttal evidence and as rebuttal evidence it should properly be adduced after the defence case. But what Mr Lai additionally seeks to show is that the defendant had the requisite intent. Why else would he wish to rebut the evidence of diminished responsibility. He does that, he says, by calling his own psychiatric experts to undermine the defence evidence upon the issue to show they have not established, to the standard required, the burden placed upon them. He maintains his duty goes no further than that. There is no requirement to negative it or to disprove the defendant did not suffer any abnormality of mind to any other standard and not, he says, to the criminal standard.

15. But implied in that argument is that such evidence is adduced to show that the defendant had the necessary intent for murder and therefore he has placed upon his shoulders the usual burden and standard or proof in that regard. If that is so, I cannot see why that should not be done within his own case unless there is good reason to do otherwise.

Is there good reason for the Court to exercise its discretion to allow the prosecution to split its case?

16. What prejudice would the prosecution suffer in being required to call their expert evidence within their own case? Mr Lai submits that, without hearing the defendant and without hearing the defence expert, they do not know what issues they need to address in chief. He submits that matters may take an unforeseen turn during the defence case which cannot be met within his own case. Mr Lai underestimates his own ability. This is the very situation Counsel faces in every criminal case in Hong Kong. Indeed, Counsel are often in a worse position as they have not been provided with defence evidence in advance, as they must now do in the courts of England and Wales by means of a defence statement. In this case however, the prosecution has in its hands no fewer than five opinions, one from a clinical psychologist and eight from four psychiatrists. All of them have dealt with the defendant directly. One of them has dealt with him consistently over the last three years. Realistically, there will be very little that the defendant has not already disclosed to those individuals meticulously detailed in their several reports. The prosecution is therefore aware of what the defendant has to say upon the matter and is in a position to cross examine him should he alter his evidence.

17. Unfortunately, the report of Dr Ho has been poorly worded in places and has allowed in a significant amount of what could be described as inappropriate comment from lay witnesses. It is also true to say that the clinical aspect of the report details the defendants current state of mind but there has been something of a leap of faith by the doctor in forming an opinion from that current assessment to extrapolating the situation at the relevant time and there will inevitably need to be some examination of that leap of faith. But that is something Mr Percy must also address and no doubt Mr Lai will have an expert in attendance when that comes to pass. If evidence is placed before the court which could not be foreseen and which requires a response from the prosecution to assist the jury in their deliberations, at that stage it is open to the prosecution to ask to recall their expert witnesses to address it in the normal way.

Where does the interest of justice lie?

18. The practice, if indeed it is a practice, to automatically call expert evidence in rebuttal (or to split its case) in cases of diminished responsibility, gives the prosecution the last bite of the cherry in circumstances which may not necessarily be laid at the door of the defence for raising issues at the last minute and without warning which might give rise to ex improviso principle. This is not a situation where the defendant raises an issue at the last minute which the prosecution could not possibly have foreseen. This was known by both parties and both parties have prepared for it by seeking expert evidence. The prosecution has had ample opportunity to formulate its case against the defendant and it does have the burden of proving it. Why should this exceptional course be allowed? Is it in the interest of justice to do so or can justice be achieved by some other route?

19. The important issue is that the jury are given all of the facts required in as simple and straightforward a manner as possible so that they can properly and fairly decide upon the guilt or innocence of the accused. In a case where the partial defence of diminished responsibility is raised that necessarily requires assistance from expert witnesses. In this case from both the prosecution and defence for there is little agreement between the two sides now that the defendant seeks to rely upon Dr Ho alone. I can find no good reason why the usual common law principles for the calling of evidence should not be followed in the circumstances pertaining to this case. There may be good reason in other cases where the better course is to call evidence in some other order but I do not find any such reason here. It is clear on the papers that the burden placed upon the defendant will be properly raised and sufficient to go before the jury. I see no disadvantage to the prosecution in adducing their evidence as to this issue within their own case. They are not prejudiced by so doing and should any issue arise within the defence case which has not be foreseen then an application to recall a witness can be made and considered in the appropriate manner. I do not take the same view as Andrews SPJ in R v Pateman (1983) 33 A Crim R 212 at page 218 that the fact such evidence is called last is of no effect. For the prosecution to be allowed to call their expert evidence at the end of the trial without good reason and to be heard last on the issue, significantly alters the dynamic of a criminal jury trial, which may not be the case before a single judge. It leaves the jury with the prosecution evidence (and expert evidence at that, and in this case two experts) resounding in their ears, when the defendant has done nothing to warrant it save for having a burden placed upon him in law by reason of section 3 of the Homicide Ordinance, Cap 339, which is already an exception to the usual rule as to the burden and standard of proof. That is no doubt why this well-established rule has always required the prosecution to show good reason for its application.

Conclusion

20. The Court thanks the prosecution for their considerable work in this application but must refuse it. The prosecution may call their expert evidence in respect of the mental capacity of the defendant, whether on the issue of intent generally or upon the issue of diminished responsibility, within their own case. They have leave to re-visit their application having heard the defence evidence.

	(A P Campbell-Moffat)
	Judge of the Court of First Instance High Court

Mr Derek Lai SADPP and Mr Gary Leung SPP, of the Department of Justice, for HKSAR

Mr Duncan Percy and Ms Josephine Chiu, instructed by Francis Kong & Co., assigned by the Director of Legal Aid, for the defendant

[1] R v Scott [1984] 79 Cr App Rep 49; HKSAR v Y.H.M. CACC 82/2016

[2] Shaw v R (1952) 85 CLR. 365

HKSAR v. NG YAN KIN

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