Case Detail

CACC 54/2021

[2023] HKCA 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 54 OF 2021

(ON APPEAL FROM HCCC NO 114 OF 2020)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Lee Wai Man (李偉民)	Appellant

________________________

Before:

Hon Macrae VP, M Poon and A Pang JJA in Court

Date of Hearing:	3 March 2023
Date of Judgment:	3 March 2023
Date of Reasons for Judgment:	16 March 2023

_______________________________________

REASONS FOR JUDGMENT

_______________________________________

Hon Macrae VP (giving the Reasons for Judgment of the Court):

1. By a judgment handed down on 30 September 2022[1], we allowed the appellant’s appeal against conviction and, by exercising our powers under section 83A(2) of the Criminal Procedure Ordinance, Cap 221, substituted a verdict of manslaughter on the basis of diminished responsibility for that of murder. We then called for an updated psychiatric report on the appellant and adjourned the matter for submissions on sentence. On 3 March 2023, having obtained and read the report, and having heard arguments from both parties, we sentenced the appellant to a period of 12 years and 9 months’ imprisonment. These are the reasons for our sentence.

The background to the case

2. This was an appeal from a retrial on an indictment for murder, which had been ordered by this Court, differently constituted, in June 2020[2]. A full recitation of the facts of the present case appears in our own judgment at the appeal against conviction in the second trial[3].

3. It is sufficient for present purposes to note that the offence took place in the early hours of 9 December 2016 at an open area outside the shopping centre of Fu Heng Estate in Taipo, New Territories. Following a drunken quarrel and physical altercation between the appellant and the deceased, who were before that evening strangers to each other, the appellant stabbed the deceased in the abdomen with a knife resulting in the latter’s death. Under caution following his arrest, the appellant said he was drunk and did not remember what happened.

4. The appellant’s plea to the lesser offence of manslaughter simpliciter was not accepted by the prosecution; accordingly, he was tried and convicted before Toh J (“the Judge”) and a jury for the original offence of murder.

5. There was contrasting expert evidence at trial from both sides suggesting that the appellant suffered from substance induced psychotic disorder, severe alcohol use disorder and multiple stimulant use disorder. Both sets of experts were agreed, however, that the appellant suffered from alcohol dependency syndrome; in simple terms that he was a chronic alcoholic, which constituted an abnormality of mind. However, where they appeared to diverge was whether the symptoms of that abnormality were self-induced or self-inflicted.

6. This Court held that the complete judicial direction, in accordance with the Specimen Directions in Jury Trials (Vol 2) at 106-7 and 106-8, had not been given by the Judge. This may have unfortunately led the jury to believe that if there was any suggestion of voluntary consumption on the part of the appellant that evening, which one of the prosecution experts, Dr Chan, had indeed initially suggested, the defence of diminished responsibility could not be made out. Accordingly, we held that there had been a misdirection and allowed the appeal, substituting a verdict of guilty of manslaughter on the basis of diminished responsibility.

The appellant’s background

7. The appellant was born in 1968, and was a divorced man with a son by his ex-wife. Prior to the offence, he worked as a construction site worker. He had 15 criminal convictions involving 12 court appearances. Only two of those convictions might be said to be connected with violence: his first conviction in 1989 for fighting in a public place, when he was bound over to keep the peace for 12 months; and assaulting a police officer in 1996, for which he was fined $1,000. Many of the remaining offences were drug-related, the appellant having served a sentence of 6 years’ imprisonment for trafficking in dangerous drugs in the year 2000.

The latest psychiatric report

8. An updated psychiatric report on the appellant dated 14 October 2022 was prepared by Dr Siu, who had been a prosecution expert witness at trial. The history of the appellant’s substance and alcohol abuse was set out in the report as follows[4]:

“LEE reported having polysubstance misuse with active use of heroin, amphetamine, cannabis and dormicum before the index offence. He also reported use of other substances including cocaine, ketamine, MDMA, valium, halcion, cough mixture quite a couple of years ago. He reported having started to use heroin since 1993-1994 under peer influence by smoking and then chasing the dragon and he used it 1-2 times per week and each time spent around HK$100 on it. He reported use of amphetamine since around 2005 and he used it 3-4 times per week and would spend around HK$100-200 each time on it. He reported cannabis use since 1980s and he used it several times per month. For the use of dormicum, he said to have used it since a few months before the index offence and he would consume 2-3 tablets each time.
He reported to have consumed alcohol since the age of 7-8 years under influence of his parents and he started to use alcohol daily since from 16-17 years old to 24-25 years old and he would drink up to 20 cans of beer or 3-4 bottles of red wine, or 2 bottles of brandy per day. He said that a few years before the index offence, he drank alcohol daily, up to 10 cans of beer plus whisky and Chinese wine at times. LEE had symptoms of alcohol dependence syndrome. He reported that he would drink alcohol the first thing after he woke up, and he had hand tremor and restlessness before he drank, and would have a relief of his hand tremor and restlessness after drinking. He had the sense of loss of control of the amount of alcohol he drank once he started drinking and he had primacy of drinking alcohol over other activities. He had decreased physical tolerance of alcohol in the recent years. He reported having history of being absent from work because of drinking. He also reported having history of head injury and blackouts after drinking alcohol.”

9. Concerning the appellant’s psychiatric history, Dr Siu noted[5]:

“LEE had not been known to mental health service before the index offence. After the index offence, he was transferred to the SLPC for psychiatric assessments. He presented with unsatisfactory sleep and hearing non-existent voices around 2014-2015 and he at times saw images of animals/human head floating with secondary vague paranoia. He was opined to have alcohol dependence syndrome with history of polysubstance misuse and substance-induced psychosis. He had been prescribed psychiatric medications and arranged follow-ups at SLPC regularly.”

10. According to Dr Siu, the appellant “had limited insight (in)to his alcohol use problems” and he was not confident that the appellant “would not re-instate into alcohol use in future”[6]. In Dr Siu’s opinion, the appellant still suffered from alcohol dependence syndrome, even though he was currently required to abstain from alcohol in a protected prison environment. While the appellant was assessed to be mentally stable and no psychiatric in-patient treatment was required, Dr Siu recommended that in due course he should attend a psychiatric outpatient clinic for management of his alcohol dependence syndrome; and that he might benefit from a detoxification programme and psychological treatment to enable him to cope with stress[7].

Decision

11. There are two issues we need to address in sentencing the appellant: the first is the appropriate starting point for this offence; the second is the discount (if any) to be accorded the appellant for having offered an original plea of guilty to manslaughter, which, although being rejected by the prosecution, we have seen fit to substitute on the basis of diminished responsibility in place of his conviction for murder.

(i) Starting point

12. It was said by Bokhary JA (as Bokhary NPJ then was) in R v Szeto Ken[8] that:

“[M]ore than any other offence, the circumstances in which the offence of manslaughter can be committed are infinitely various. And that is so even within just one category of manslaughter…”

Although Mr Young has drawn our attention to various sentences in other cases of manslaughter by diminished responsibility, one must be cautious, as he also recognised, before drawing more than perhaps the more obvious comparisons. In particular, he drew our attention to the decisions of this Court in HKSAR v Chiu Wai Kan Vicken (No 2)[9] and HKSAR v Husnain Safdar[10] for the proposition that a sentence of 10 years’ imprisonment was appropriate where the two appellants in those cases had originally indicated their willingness to plead guilty to manslaughter and subsequently been found guilty of manslaughter by diminished responsibility on appeal; and for the proposition that the appellant was entitled to a full one-third discount for his earlier indication of a plea of guilty to manslaughter. In both cases, Mr Young argued that the facts were worse than the present case.

13. Yet, there were significant differences between the facts of each case and the present case. Both Chiu Wai Kan Vicken (No 2) and Husnain Safdar concerned appellants who were addicted to hard drugs, where their responsibility for their respective killings was significantly diminished by a drug-induced psychosis: this appellant was a chronic alcoholic. The actions described in Chiu Wai Kan Vicken (No 2) and Husnain Safdar were certainly brutal and unprovoked in their psychotic states: the actions of this appellant were the result of the needless and mindless aggression of a drunk. We note that the Judge described the appellant’s conduct on the evening in question as follows:

“The slight confrontation you had with the deceased was minimal compared to what you then did to him. This matter could have been resolved by you just going to bed, going home, and going to bed. As it can be seen from the CCTV footage, you went in twice and out and changed your clothes twice.
Your reaction to the very slight, slight confrontation you had with the deceased was wholly out of proportion to what you did to him. As … can be seen by the evidence of the son, he was in fact very concerned for the safety of his father as you seemed to be fierce, your behaviour was fierce that evening.
Tragically, this son who was there has lost his father, seemingly before his wedding. He, as you have heard, deeply regrets, though it is not his fault, that he did not stay with his father until the end that evening. This was a tragic case of which the deceased died upon your revenge attack on him. You murdered, you killed the deceased only approximately some three hours after you met him.”

14. Although it must be accepted that the Judge was sentencing in respect of the jury’s conviction for murder, which we have earlier set aside, many of her comments are apposite. It is clear that there was a considerable element of premeditation on the appellant’s part, all resulting from a very minor slight, which a normal, sober individual would have ignored or brushed aside. Unfortunately, aggressive alcoholics do not act in a normal way.

15. Mr Young also relied on the judgment in R v Chan Wing[11], decided almost 30 years ago, where the applicant had been sentenced by the trial judge to 8 years’ imprisonment on his own plea to manslaughter by reason of diminished responsibility for the unprovoked killing of another meat stall employee after drinking heavily. The Court of Appeal upheld the sentence. However, we do not find this rather short judgment of very much assistance. Nor do we derive any utility from the two cases to which the Court therein referred: one, a first instance decision in Hong Kong of 1992; the other, the English appellate decision of R v Norman[12] decided more than 40 years ago, which the Court in Chan Wing understood, not entirely correctly with respect, to have held “that in cases of diminished responsibility the top of the scale was seven years”[13]. Furthermore, we do not think that any of these cases are consistent with modern sentencing practice for this offence in either jurisdiction. The current Sentencing Council’s Definitive Guideline for Manslaughter by reason of diminished responsibility (effective in the United Kingdom since 1 November 2018) suggests that Norman would not survive scrutiny today in that jurisdiction. Even if we were to apply the Definitive Guideline, which has not been adopted and applied in this jurisdiction, Mr Young accepted that the category range for the appellant’s level of what is described as “medium” responsibility should have been between 10 and 25 years in custody, with a usual starting point of 15 years’ imprisonment.

16. We should make clear that we considered the appellant’s state of mind in this case to have bordered on murderous intent. That is clear from the deliberate actions he took in returning home twice, changing his clothes and arming himself with a knife before setting off in search of the deceased. Had it not been for the directions to the jury on diminished responsibility, which we have earlier held to be deficient, we would have upheld the appellant’s conviction for murder. That we did not do so does not mean we accept the entire defence basis of his diminished responsibility. In any event, having reduced the conviction to manslaughter, it falls to this Court to determine the appellant’s culpability and the extent of the diminution of his responsibility in the light of all the relevant evidence.

17. We are particularly concerned that the appellant has limited insight into his problem and is likely to relapse into alcoholism for the remainder of his life. We note from the second report of Dr Chan, dated 16 April 2018, which was adduced at trial, that the appellant[14]:

“…has been admitted to detoxification facilities many times but these failed to help him achieve abstinence from using street drugs. His latest admission was said to be between July and October 2016 in Shek Kwu Chau. After his release he rapidly reinstated in use of heroin and methamphetamine, and coupled with his alcohol use, he was evicted from a hostel that was originally arranged for him.” (Emphasis supplied)

He had emerged from Shek Kwu Chau, therefore, barely two months before the present offence took place.

18. As an alcoholic, who obviously becomes truculent and aggressive when fuelled by drink, he will remain at best a nuisance and menace, at worst a risk and danger, to society for the rest of his active life, unless and until he takes serious steps to address his problem. In our judgment, the appropriate staring point should be 16 years’ imprisonment.

(ii) Discount

19. Mr Young sought to rely on the Court’s acceptance in Husnain Safdar of the one-third discount from a starting point of 15 years’ imprisonment, where it substituted a verdict of manslaughter by reason of diminished responsibility for one of murder, notwithstanding that the appellant had also relied on the defence of self-defence, which if it had been accepted by the jury would have seen him acquitted altogether. However, it should be understood that the Court in Husnain Safdar was aware it was not dealing with a “normal” case. It said in terms that the offer of a plea of guilty to manslaughter by reason of diminished responsibility ought to have been accepted by the trial judge, having already been accepted by the prosecution, in which case there would have been no need for a trial. It was “in these quite unusual circumstances” that the Court felt the appellant should be granted a full one-third discount for his plea[15].

20. However, the Court in Husnain Safdar also made it clear that[16]:

“…if an offender whose plea offer is rejected goes to trial relying on a defence which, if successful, will result in his complete acquittal, then the law is equally clear that he will not normally be accorded the full one-third discount, but instead something less.”

21. The practice and procedure for entering a plea to an alternative or lesser offence, which is then later relied upon to obtain a discount, has been authoritatively (and more recently) described by this Court in its judgment in HKSAR v Lam Kai Man[17]. Both Husnain Safdar and Chiu Wai Kan Vicken (No 2) should, therefore, be read subject to that which the Court has now laid down in Lam Kai Man. For this appellant to receive a full one-third discount from this Court for the plea he offered, but which was rejected by the prosecution, it was necessary to comply with the formalities set out in Lam Kai Man, a decision handed down some seven months before the commencement of the trial with which we are concerned.

22. However, rather than pleading guilty on the record upon arraignment to manslaughter by reason of diminished responsibility, the appellant pleaded guilty to manslaughter simpliciter[18]. Rather curiously, the record of the Judge’s clerk also has a reference to defence counsel raising the issue of self-defence at the time of arraignment. In the event, the appellant proceeded to run several ‘defences’ at trial, namely accident, self-defence, intoxication, manslaughter by way of an unlawful and dangerous act, manslaughter by reason of provocation and manslaughter by reason of diminished responsibility. The first three of these defences would have resulted in the appellant’s complete acquittal, while manslaughter by way of an unlawful and dangerous act would have involved a mental state short of that required for provocation and diminished responsibility. It is not surprising, therefore, that we should have remarked in our judgment on conviction, at the outset of our discussion of the merits of the appeal[19]:

“This was not an easy case for the Judge to sum up, given the sheer number of sometime disparate, sometimes inter-related, lines of defence being run.”

23. Instead of this case providing a simple, single issue for the jury to determine, the jury were faced with a combination of very different defences and a number of different possible verdicts, all of which required the Judge to sum up and present for them. Given that the appellant did not adhere to an explicit, stated position throughout the proceedings before the Judge, we are of the view that he was not entitled to a full one-third discount, even though we have now substituted a verdict of manslaughter by way of diminished responsibility for that of murder.

24. In our judgment, the appropriate discount for plea in the circumstances of this case should have been in the region of 20%. Applying that discount to the starting point of 16 years’ imprisonment and rounding the resulting sentence down slightly, we arrived at a sentence of 12 years and 9 months’ imprisonment, which was the term we duly passed for the substituted offence of manslaughter by way of diminished responsibility.

(Andrew Macrae)
Vice President

(Maggie Poon)
Justice of Appeal

(Anthea Pang)
Justice of Appeal

Mr Kelvin Tang SPP, of the Department of Justice, for the Respondent

Mr Simon N M Young, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the Appellant

[1] HKSAR v Lee Wai Man [2022] 5 HKLRD 138.

[2] HKSAR v Lee Wai Man [2020] 3 HKLRD 310.

[3] HKSAR v Lee Wai Man [2022] 5 HKLRD 138.

[4] The psychiatric report, at [3].

[5] The psychiatric report, at [4].

[6] The psychiatric report, at [6].

[7] The psychiatric report, at [7].

[8] R v Szeto Ken (Unrep., Cr App No 687 of 1996, 6 June 1997), at p6.

[9] HKSAR v Chiu Wai Kan Vicken (No 2) [2011] 5 HKLRD 422.

[10] HKSAR v Husnain Safdar [2021] 3 HKLRD 509.

[11] R v Chan Wing (Unrep., Cr App No 447 of 1993, 10 March 1994).

[12] R v Norman (1981) Cr App Rep (S) 377.

[13] Ibid., at p2.

[14] AB, pp 226-232, at [4].

[15] Husnain Safdar, at [119].

[16] Ibid., at [118].

[17] HKSAR v Lam Kai Man [2020] 4 HKLRD 107.

[18] It is to be noted that at his first trial, the appellant had pleaded guilty to manslaughter on the basis of either provocation or diminished responsibility.

[19] The Court’s judgment, at [40].

CACC 54 /2021

[2022] HKCA 1459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 54 OF 2021

(ON APPEAL FROM HCCC NO 114 OF 2020)

________________________

BETWEEN
	HKSAR	Respondent
	and
	Lee Wai Man (李偉民)	Applicant

________________________

Before:

Hon Macrae VP, M Poon JA and A Pang JA in Court

Date of Hearing:	18 May 2022
Date of Judgment:	30 September 2022

____________________

J U D G M E N T

____________________

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

1. The applicant was indicted for the murder of Mr Ting Yun-kwong, also known as “Kwong Suk” (“the deceased”), contrary to common law. He was convicted before Toh J and a jury and sentenced to life imprisonment. He now seeks leave to appeal against his conviction.

2. The alleged offence took place in the early hours of 9 December 2016 outside a shopping centre in the Fu Heng Estate in Taipo, New Territories where, after a night of drinking, the applicant stabbed the deceased. There was no dispute at trial that the deceased was stabbed in his abdomen with a knife, from which injury he died later that day.

3. The prosecution alleged that the applicant had stabbed the deceased intending to kill or cause him serious bodily harm. The defence put forward a number of defences, of which some were complete defences to the offence of murder, such as accident, self-defence and intoxication so as to be unable to form the requisite intent; while others were partial defences, such as provocation, diminished responsibility and unlawful act manslaughter.

The prosecution case

4. Mr Ting Ka-wai (“Ting”), the son of the deceased, testified that, earlier in the evening of 8 December 2016, the applicant had tried to interrupt his conversation with his father on some three occasions while they were talking in the vicinity of the shopping centre. When the applicant then tried to rush at them, someone intervened and told the applicant that the deceased was the uncle of “Ka Ho”. A person referred to by the witnesses as “Man Jai” then went to buy some green bamboo leaf liquor, after which the deceased poured three quarters of the bottle for the applicant, keeping the rest for himself. Ting described the applicant at that time as being drunk, unsteady on his feet and talking incoherently. This earlier altercation was referred to at trial as “the 1^st quarrel”. Ting left his father at about 1:30 am^{^[1]}.

5. The evidence of Madam Kung Yuet-ngan, Angel (“Angel”), was partly adduced by the reading to the jury of her two police witness statements, under section 65B of the Criminal Procedure Ordinance, Cap 221, and supplemented by her oral evidence. In her two witness statements, she described being on the podium level of the housing estate from where she saw the deceased and the applicant quarrelling below and coming to blows. This was obviously a description of the 1^st quarrel. She therefore went down from the podium to an open space outside a convenience store intending to try and pacify them. However, on the way she was stopped by Man Jai who told her that it was none of her concern. When she tried to make a telephone report to the police, Man Jai again stopped her, telling her that he would handle the matter^{^[2]}. Angel later saw the applicant wearing a mask, but he was not carrying anything in his hands^{^[3]}.

6. In her oral evidence, Angel described how a group of men, of which the applicant was latterly one, would drink outside the shopping centre at Fu Heng Estate every night into the early hours and, in the summer months, sleep there as well.

7. Mr Chan Yin-lo (“Chan”), who was 16 years of age at the time of the offence, explained how, following the 1^st quarrel, the group split into two groups to look for the applicant. He then heard shouting from a staircase and ran over to see that Man Jai had pinned the applicant down on the stairs. However, Man Jai released the applicant, who then ran off. He testified that the applicant came up to him and asked him to get a “tool” (or “tools”) for him. Chan understood this to be a reference to a weapon. Chan refused and told him to go home. He said the applicant’s speech was slurred^{^[4]}. Chan said he told the deceased of the applicant’s intention to get tools or weapons, whereupon the deceased became very angry^{^[5]}.

8. Man Jai, whose formal name was Ng Wing-man, was the only person to have actually witnessed the act which resulted in the death of the deceased. Unfortunately, he was deceased by the time of the trial, with the result that his statements were similarly adduced under section 65B of the Criminal Procedure Ordinance. Man Jai explained how the applicant had initially gone away, only to return at about 1:45 am. He said of the applicant, “He looked hideously drunk and acted crazily” and that he was talking nonsense and claiming to be a triad member. The deceased told the applicant to go home but this was ignored and the two ended up having a fight. The group tried to separate them but the deceased struck the applicant, which caused him to fall to the ground^{^[6]}. This was his description of the 1^st quarrel. He said the applicant then left but he and the group carried on drinking.

9. Shortly after 2 am, the deceased was informed that the applicant was looking for a “tool”. The deceased became very angry and said he “would get even with” the applicant. Four of them, including the deceased, then carried out a search of the estate looking for the applicant before returning to the shopping centre^{^[7]}.

10. Man Jai, in one of his statements, said that he later encountered the applicant in a stairwell and that he was wearing a mask and a hood. This was referred to in evidence as “the 2^nd quarrel”. He described how the deceased, who was with him, stopped the applicant and became sandwiched between himself and the applicant in the stairwell. A struggle followed in which the applicant was pushed down the stairs by the deceased. Man Jai then pinned the applicant down on the ground, whereupon the deceased declared, “I got stabbed by a knife”^{^[8]}. Man Jai turned and saw a knife sticking into the deceased. He was asked by the officer taking his statement if, when he saw the applicant coming down from the podium, he was holding anything, and he said he did not notice^{^[9]}.

11. Upon his arrest, shortly after 10 am on 9 December, the applicant said under caution, “Ah sir, I did quarrel with someone in the shopping centre, but I was drunk, I do not remember what happened”^{^[10]}. The applicant subsequently participated in a video recorded interview (“VRI”), which was played to the jury. Essentially, he claimed he did not remember how he had come by his own injuries[11]; and, when asked about the assault on the deceased, he said “I have no impression, really”[12]; as to whether there was a fight, he responded, “I don’t know. (I) have forgotten”[13]. However, he seemed to suggest that at 2:30 am on 9 December 2016 he had been “perhaps sleeping at home”[14].

12. The applicant described his alcohol consumption as “at least ten odd cans” daily[15], mainly dark beer, although he drank all kinds of alcohol[16]; that he would drink anywhere and go to the market if he had nowhere to go[17]; that he always lost his memory after drinking[18]; and that other people said he became impetuous after drinking alcohol”[19] and had told him to stop drinking[20].

13. The prosecution also relied on footage from closed circuit television cameras (“CCTV”). Emphasis was placed on the fact that at 2:16 am when the applicant was leaving his home, a knife could be seen falling from his clothing, which he bent down to pick up and tuck into his body before exiting the lift. When he returned home at 2:27 am, the knife was not visible. Having returned home, he changed and went out again at 2:39 am wearing shorts, a white shirt and black jacket with a hood (but he was not wearing a mask)^{^[21]}. Telephone records were also produced (Exhibit P50) showing calls being made on the morning of 9 December from the applicant’s mobile telephone number, one of which lasted for 86 seconds. CCTV footage also showed how the applicant had input his door code in order to access his flat. The telephone call and input of the door code were characterised by the prosecution as “goal oriented” activities, which were indicative of the applicant’s state of mind^{^[22]}.

14. The prosecution called Dr Oliver Chan (“Dr Chan”) and Dr Bonnie Siu Wai-man (“Dr Siu”) in order ostensibly to rebut the evidence of the defence expert, Dr Li Cheuk-wing (“Dr Li”). Dr Chan had prepared two reports, in September 2017 and April 2018, and appears to have seen the applicant on the most number of occasions as his handling psychiatrist. He considered that the applicant had an abnormality of mind derived from alcohol dependency syndrome, but disagreed it was from disease or injury, since his drinking was voluntary and his symptoms self-induced. However, it is important to note the following exchange between the witness and defence counsel in cross-examination[23]:

“Q. And now talking about cravings, if the psychiatric illness overtakes the defendant’s will to resist drink, that’s involuntary, isn’t it?
A. Yes.
Q. And that’s a matter for the jury.
A. Yes.”

15. Dr Chan also agreed that the applicant’s mask, the hood and the carrying of the knife could be consistent with paranoia^{^[24]}. He acknowledged that the applicant “displayed a problematic pattern of alcohol dependency such as tolerance, withdrawal, primacy and failure to cut down his drinking that occurred within a 12-month period. He also accepted that the applicant displayed features of repeated intoxication with associated behavioural disturbances upon alcohol consumption”^{^[25]}.

16. Dr Siu’s reports, which were similarly written in September 2017 and April 2018, were also adduced before the jury as the basis of her oral evidence. In her view, the applicant had alcohol dependency syndrome with a history of polysubstance misuse and substance-induced psychosis. She agreed that the applicant was suffering from an abnormality of mind at the time and that his alcohol abuse substantially impaired his ability to form rational decisions. The judge said of Dr Siu’s evidence, when summarising it for the jury^{^[26]}:

“So basically she agrees that he had an abnormality of mind which did substantially impair his rational judgment and self-control and his mental responsibility. However, she disagreed with Dr Li on this that this condition was as a result of any arrested or retarded development of mind or any inherent causes or induced by disease or injury.”

The defence case

17. The applicant did not give evidence. It was argued on his behalf that a group of men were looking for the applicant in order to seek revenge^{^[27]}, and had gone out with the intention of harming him^{^[28]}. The evidence that the applicant had asked for a weapon was challenged^{^[29]}. It was suggested that the applicant had delusions of paranoia and this was perhaps why he was carrying a knife^{^[30]}. It was noted that the applicant and the deceased were strangers and had met for the first time on the evening of the offence itself^{^[31]}.

18. Accordingly, self-defence was raised and it was argued that the applicant had been accosted, cornered and trapped on the staircase and was reasonably defending himself. In the heat of the moment, he could not be expected to weigh precisely the amount of force he should use in defending himself^{^[32]}. Alternatively, it was suggested that this was an accident, in which it was not known how the knife was inserted, only that there was a struggle^{^[33]}.

19. The defence further raised intoxication and relied on the evidence of Dr Li, who interviewed the applicant on two occasions; first in August 2018, and again in November 2020, for a total of 4 hours. Dr Li said he had based his opinion on his interviews with the applicant and his review of the court documents, the CCTV footage and the expert reports of Dr Chan and Dr Siu.

20. Dr Li assessed the applicant as suffering from Substance Induced Psychotic Disorder (“SIPD”). He said this would intermittently disturb the applicant’s perception and thinking. The applicant was also suffering from severe alcohol use disorder, which in simple terms meant that he was an alcoholic, as well as multiple stimulant use disorder^{^[34]}. Dr Li considered that the applicant’s history of intermittent psychotic symptoms in the preceding five years, in the context of the continual use of alcohol, methamphetamines and other hypnotics, as well as his treatment in Siu Lam Psychiatric Centre in the six months following the offence, would suggest that a diagnosis of SIPD was warranted^{^[35]}. He noted that the applicant had been diagnosed with psychosis at Siu Lam Psychiatric Clinic soon after being taken into custody and that the onset of this condition predated the alleged offence. Since alcohol would exacerbate substance induced psychosis, it was likely that psychotic symptoms were present at the time of the offence^{^[36]}.

21. On examining the CCTV footage from the night in question, Dr Li accepted that the evidence “showed that (the applicant) had enough cognitive capacity and physical coordination to go in and out of home. This is not surprising because chronic drinkers with high tolerance often have attenuated intoxication symptoms”^{^[37]}.

22. The witness concluded^{^[38]}:

“I opine that the issue of diminished responsibility should be considered. Alcohol intoxication can cause mood change, impaired judgement and impaired self-control. He had been suffering from substance-induced psychotic disorder which disturbed his perception and thinking intermittently. He drank because he has severe alcohol use disorder which is a mental disease. He has strong cravings for alcohol and he will develop withdrawal symptoms if he didn’t drink. According to him, he has never been able to resist alcohol on his own accord over the last thirty years.”

23. Dr Li said the length of treatment the applicant received in Siu Lam Psychiatric Centre was an indication of the degree of psychosis from which the applicant was suffering. Treatment for six months meant his psychosis after arrest was not mild^{^[39]}. The carrying of a knife for protection was consistent with a state of paranoia, which would also explain why he went home twice to change his clothes^{^[40]}. It was put to Dr Li in cross-examination that the applicant’s wearing of a mask and a hood over his head was an attempt to hide his appearance, to which proposition Dr Li agreed. However, in re-examination, he agreed that this could be related to his existing paranoia^{^[41]}.

24. It was also put to Dr Li in cross-examination that SIPD was self-inflicted, with which proposition Dr Li agreed; however, he said of the applicant that the “inherent vulnerability that he developed – it was his inherent vulnerability that brought about his psychotic symptoms”^{^[42]}.

25. It was suggested to Dr Li in cross-examination that his consumption of alcohol that evening was something in which the applicant had a choice, but Dr Li responded that the applicant would have had a reduced ability to resist. He was then asked, “But it’s still his choice?”; to which Dr Li answered, “Yes”^{^[43]}.

26. Finally, the applicant also raised the issues of provocation, as well as manslaughter by a dangerous and unlawful act, but we are not concerned with either of these issues or the correctness of the judge’s directions on these matters, which the applicant accepts.

The applicant’s grounds of appeal

27. Mr Simon Young, who appeared for the applicant at this appeal but not the trial, has advanced essentially two grounds of appeal. First, it is said that the judge failed to direct the jury in clear terms that if the applicant was incapable of forming the requisite intent for murder, he could not be guilty of the offence. Secondly, complaint was made about the correctness and completeness of the judge’s directions on diminished responsibility.

Applicant’s submissions

28. We do not intend to spend time addressing Mr Young’s submissions on the first ground of appeal, in particular as to whether the judge should have said more on this issue, because this ground could not conceivably unsettle the conviction. The simple fact is that the applicant did not give evidence as to his intent (or lack of it), or his ability (or inability) to form such an intent. There was thus no direct evidence as to his state of mind at the time the offence was committed. The only evidence came in the form of the unsworn and untested assertions in his VRI, in which he claimed that, although he was drunk and did not remember things, he was actually sleeping at home when the offence was committed and did not go to the location of the offence.

29. On the contrary, there was abundant evidence to suggest that despite having consumed alcohol, the applicant was able to return home to change his clothes twice before the offence; put on a surgical mask; retrieve a dropped knife in the lift and hide it under his jacket; make a telephone call lasting some 86 seconds; punch in the entrance code for the gate where he lived; and ask Chan for a weapon. The submission that he was so intoxicated as to be incapable of forming the necessary intent has no proper factual foundation and is utterly fanciful. We do not propose to say anything further about it.

30. In respect of his second complaint, Mr Young began by observing that all of the psychiatrists agreed the applicant was suffering from an abnormality of mind at the material time, and that none of them was prepared to say that such abnormality did not substantially impair the applicant’s mental responsibility for the killing. Where they disagreed was whether the abnormality of mind had been induced by disease.

31. Mr Young then identified, what he contended was a misdirection in law (“the impugned direction”)^{^[44]}:

“As I said, Dr Chan initially said he thought that although the defendant suffered from alcohol dependence syndrome, the alcohol he consumed that evening was self-induced and voluntary. But on cross examination he also accepted that it was possible that his craving for alcohol overrode his willpower. So that was his evidence. Because the law is that in putting forward a defence of diminished responsibility, the defendant is not entitled to rely on the effects of voluntary consumption of alcohol. So that why it is a very important factor which you have to consider. Was his consumption of alcohol a voluntary one or did his condition make his action of consuming alcohol, his compulsion of consuming alcohol one which he had no control? So at the end of the day, members of the jury, as I said, you have to take a broad common sense view in view of all the evidence which you have heard.”

32. It was submitted that the judge, by using such absolute terms in telling the jury that the applicant was “not entitled to rely on the effects of voluntary consumption of alcohol”, but that they should decide whether his “consumption of alcohol was a voluntary one or … one which he had no control”, had left the jury with the erroneous impression that the choice was ‘black or white’, and that if the applicant had any control over his alcohol consumption so that any of his consumption was voluntary, he would not be able to rely on any defence of diminished responsibility arising from alcohol dependency syndrome.

33. He argued that it was significant that the November 2020 Specimen Directions in Jury Trials (Vol 2) recommended differently worded directions depending on whether the disease inducing the abnormality of mind was alcohol dependency syndrome or another disease of the mind such as SIPD.

34. He further noted that his predecessor at trial had himself appeared to fall into the trap that “the defendant may not rely on this partial defence of diminished responsibility if you, members of the jury, considered that the defendant drank the alcohol voluntarily”[45]. However, he invited the judge to ignore voluntary intoxication when considering SIPD as the basis for the defence of diminished responsibility^{^[46]}; and, in due course, addressed the jury along the same lines in his closing address^{^[47]}.

35. Mr Young argued that there was sufficient evidence from the psychiatrists, the applicant, the CCTV evidence, the witnesses at trial and the applicant’s post-offence treatment for psychosis for nine months at Siu Lam, to provide a realistic basis for the defence of diminished responsibility.

36. The impugned direction had the effect of removing the defence altogether should the jury find there to be any voluntary intoxication causative of the abnormality of mind; which was contrary to the views expressed by the House of Lords in R v Dietschmann[48].

The respondent’s submissions

37. Mr Jonathan Man, for the respondent, submitted that the impugned direction was fully consistent with the specimen direction under section “D.Alcohol/Drug Dependency Syndrome” in Specimen Directions in Jury Trials (Vol 2).

38. He drew the Court’s attention to an earlier direction by the judge^{^[49]}:

“Now, as to his choice, whether he has a choice whether to drink or not. As I said, Dr Li, in his opinion, said the defendant suffered from a condition which causes him an irresistible craving for alcohol which therefore he concluded it was an alcohol dependence syndrome, which is a disease, in his opinion. And so, he says, it affected the defendant’s judgment and willpower and it therefore affected his mind to make it an abnormality of mind. And therefore, it affected defendant’s mental responsibility for his action that night and therefore, his mental responsibility for his actions that night were substantially reduced.”

39. This direction immediately precedes the impugned direction. Accordingly, Mr Man argued that, when the two passages were read together, it was made sufficiently clear that the judge was referring to alcohol dependency syndrome rather than SIPD when explaining the relevance of the applicant’s ability to make voluntary choices about his drinking.

Discussion

40. This was not an easy case for the judge to sum up, given the sheer number of sometimes disparate, sometimes inter-related, lines of defence being run. Moreover, directions on diminished responsibility, particularly in the context of a defendant who is suffering from alcohol dependency syndrome, can raise difficult questions for judges and juries alike. Of a jury’s decision in respect of diminished responsibility, Lord Judge CJ said in R v Stewart[50]:

“We acknowledge that this decision will rarely be easy. Indeed, it is fair to say that diminished responsibility has always raised complex and difficult issues for the jury, not least because the defence usually involves conflicting medical evidence addressing legal, not medical concepts, for a jury of lay persons to decide. The jury is often called upon to confront problems relating to the operation of the mind with which they will be unfamiliar.”

41. The problem may be accentuated with alcohol dependency syndrome for, as Lord Judge CJ had earlier pointed out[51]:

“Alcoholism varies greatly in its nature and extent. As with other conditions, it involves different levels of severity. A heavy drinker does not necessarily suffer from alcohol dependency syndrome and someone suffering from it may very well have lengthy periods when he is either sober or when his mental responsibility is not significantly impaired by alcohol.”

42. The legal difficulty with a condition which may not be said to be ‘black and white’ had been discussed a year earlier by Sir Igor Judge P (as he was at that time) in R v Wood[52]:

“As a matter of practical reality the bar the defendant is required to surmount before diminished responsibility can be established in the context of chronic addiction to alcohol may have been set too high. In our judgment neither Tandy[53] nor Inseal[54] establishes that it is a pre-requisite to the availability of diminished responsibility to a defendant suffering from alcohol dependency syndrome that he never does anything other than drink alcohol. Even a true alcoholic stops drinking sometimes. He will get dressed, or wash, or perform everyday functions without necessarily keeping a glass or bottle to his lips. He will stop drinking and go to bed. In one sense these actions all represent a deliberate choice not to drink and, if so, that implies that the defendant makes a further choice about when he will resume drinking. Yet the defence does not require proof that the alcohol-dependent defendant is subject to, or acting under, some form of automatism, either when he is drinking or when he is behaving violently. That might provide a different defence.”

43. In other words, there is a problem for judges in directing juries on diminished responsibility where there is a suggestion (as there was here) that a defendant’s consumption of alcohol may have been voluntary. And it was this problem which led to the allowing of the appeals in both Wood and Stewart; the Court in the latter case holding[55]:

“We have reflected on the directions to the jury. Leaving out of account that the judge was applying the principles as explained in Tandy rather than Wood, we have confined our attention to the effect of his directions. In our judgment their effect was that the defence would not be available if the jury found that any of the appellant’s drinking was voluntary. Save semantically that is indistinguishable from the direction in Wood, and for the same reasons set out in that case, constituted a misdirection. Accordingly, the appeal against conviction for murder must be allowed.”

44. Both Wood and Stewart have been approved and applied in this jurisdiction in HKSAR v Chiu Wai Kan Vicken[56]. Having quoted extensively from both English authorities, Stock VP (as Stock NPJ then was) summed up the position on behalf of the Court in Chiu Wai Kan Vicken as follows[57]:

“Difficult an issue though it was, the judge ought to have directed the jury to decide, first, whether the applicant suffered from a dependency of such a nature and extent as constituted an abnormality of the mind; if so whether that was caused by disease or illness and, if so, whether the impact of that abnormality of mind due to disease or illness was present at the time of the killing and if so whether to an extent which substantially impaired the applicant’s mental responsibility for what he did. Those were the steps to which the jury should have been invited and directed to such evidence as was said to establish each segment of the defence. It may be that the evidence adduced from the experts was not sufficiently comprehensive to cover each segment but whether or not that was so was pre-eminently a matter for the jury. In the circumstances, there has been a material non-direction.”

45. In the case before us, there was no real issue about the fact that the applicant suffered from alcohol dependency syndrome, which constituted an abnormality of mind. Not only did the applicant clearly reveal himself in his VRI to be an alcoholic, but both Dr Siu, for the prosecution, and Dr Li, for the defence, agreed that he suffered from alcohol dependency syndrome, and that it constituted an abnormality of mind. The other expert witness for the prosecution, Dr Chan also agreed with the diagnosis but seemed to suggest, at least as his initial view, that the alcohol the applicant had consumed that evening was self-induced and voluntary; although he accepted in cross-examination what we think ought to have been obvious in the applicant’s case that his craving for alcohol could have overridden his power to resist it, which would have made his consumption involuntary. It was unfortunately here that the seeds of the problem which led to the impugned direction were sown. For it was clearly in light of Dr Chan’s initial reservation that the judge gave her direction that[58]:

“…the law is that in putting forward the defence of diminished responsibility, the defendant is not entitled to rely on the effects of voluntary consumption of alcohol. So that is why it is a very important factor which you have to consider. Was his consumption of alcohol a voluntary one or did his condition make his action of consuming alcohol, his compulsion of consuming alcohol one (over) which he had no control? So at the end of the day, members of the jury, as I said, you have to take a broad common sense view in view of all the evidence which you have heard.”

46. As the judgments in Wood and Stewart make clear, voluntary consumption of alcohol by someone suffering from alcohol dependency syndrome does not necessarily negate the defence of diminished responsibility. Yet that, with respect, was the unmistakeable message of the learned judge’s instructions.

47. Unfortunately, the judge was not as assisted as she might have been by either counsel at trial: indeed, defence counsel, who we emphasise was not Mr Young, apart from giving the judge the wrong reference in the specimen directions on diminished responsibility, submitted that the ratiodecidendi in Stewart “has been squarely incorporated into the Specimen Directions in Jury Trials Chapter 105-5 (sic) – B. Alcohol or drugs voluntarily consumed”[59]. In fact, as the note to the section in the specimen direction which counsel meant to refer to made clear, namely, section 106-5, the direction was concerned with the position “where self-induced intoxication was present at the material time in conjunction with an abnormality of mind (but no alcohol dependency syndrome or none sufficient to constitute abnormality of mind)” (our emphasis). Rather, the appropriate part of the specimen direction, which he did not refer to but should have cited, was section “D. Alcohol / Drug Dependency Syndrome” at 106-7 and 106-8, where the relevant part of the sample direction approved is as follows:

“The abnormality of mind relied upon by the defendant in this case is the effect of his chronic alcoholism. Alcohol dependency syndrome is a recognised psychiatric condition. [Here, it is not suggested that the defendant had suffered brain damage of such a degree that would itself constitute an abnormality of mind. Rather], the main effect of alcohol dependency syndrome upon the mind is to damage or destroy the individual’s choice whether to drink or not.[60]
The consultant psychiatrist Dr A, who was called on behalf of the defendant, told you that in his opinion the defendant suffered from a condition which causes in him an involuntary and irresistible craving for alcohol; that this condition, known as alcohol dependency syndrome, is a disease; that in the defendant’s case, it so affected his judgment and willpower as to be an abnormality of mind and that, in his opinion, the defendant’s mental responsibility for his actions at the time of the attack on V was, as a result of that abnormality, substantially reduced. Dr B, on the other hand, whilst accepting that the defendant suffers from the condition known as alcohol dependency syndrome, told you that in his opinion, the alcohol consumed by the defendant that night was consumed by choice and not compelled by his syndrome.
The law is this. In putting forward a defence of diminished responsibility, the defendant is not entitled to rely on the effects of voluntary consumption of alcohol. That is because the law holds all of us responsible for the effect upon us of alcohol which we choose to drink.[61]
On the other hand, the defence of diminished responsibility can apply as a result of the effect of an involuntary and irresistible compulsion to drink. What the defendant would have to show is that it was more likely than not that at the time of his attack on V:
1. he suffered an abnormality of mind – meaning, in this case, a loss of rational judgment or the ability to exercise normal self-control or both;
2. that abnormality was caused by disease – meaning, in this case, the involuntary or irresistible consumption of alcohol referred to by the evidence as alcohol dependency syndrome;
3. with the result that his mental responsibility for the killing was substantially impaired.
If the defendant shows that it is more likely than not all those factors existed at the time of the killing, then he is not guilty of murder but guilty of manslaughter.
If, on the other hand, he fails to show that it is more likely than not that all those factors existed at the time of the killing, then he is guilty of murder.
Taking a broad, common sense view, you need to consider how much of the defendant’s consumption that night he could not resist and how much he consumed because he wanted to. You are not expected to arrive at some scientific or mathematical conclusion in this regard, but, rather, to reach a sensible conclusion on a balance of probabilities. If you accept the evidence of Dr A, then it was all involuntary. If, on the other hand, you accept the testimony of Dr B, it was, or was mostly, voluntary. In reaching a conclusion you should, of course, take account of the defendant’s description of his condition to the doctors and to you when he gave evidence.[62]”

48. In the event, the last four paragraphs of the above specimen direction (commencing with “On the other hand…”) were not given by the judge and their effect was never satisfactorily explained to the jury. Had their meaning been properly conveyed, then the jury would have been required to assess, taking a broad, common sense view, not how much of his consumption of alcohol was voluntary and how much was involuntary in scientific or mathematical terms, but whether the applicant’s consumption before the killing could fairly be regarded as the involuntary result of an irresistible craving for or compulsion to drink because of his alcohol dependency syndrome, thereby constituting an abnormality of mind caused by disease; with the result that his mental responsibility for the crime was substantially impaired.

49. This was not a realistic case, on the evidence of the experts and, indeed, all the other relevant evidence, of voluntary consumption of alcohol: it was a case of involuntary and irresistible compulsion to drink by an alcoholic defendant suffering from alcohol dependency syndrome. Indeed, we are somewhat puzzled as to the purpose of Man Jai and the deceased giving the applicant no less than three-quarters of a bottle of green bamboo leaf liquor when he was already heavily intoxicated, a point which was made by defence counsel in his closing address to the jury[63].

50. It seems to us, therefore, that the jury were unfortunately led to believe that if there was any suggestion of voluntary consumption of alcohol on the part of the applicant that evening, his defence of diminished responsibility could not be established. However, the law is not so stark or ‘black and white’, as indeed the judgments in Wood and Stewart make clear.

51. For these reasons, we consider that the issue of diminished responsibility was not correctly or fully put to the jury; and that there was a real danger that the jury could have rejected the applicant’s defence on this issue based on Dr Chan’s initial view, which does not seem to us to be a sound basis for the jury’s conclusion and which, to his credit, he later adjusted in cross-examination.

52. Accordingly, we grant the applicant leave to appeal against conviction on this ground, treat the hearing of the application as the hearing of the appeal, allow the appeal and substitute for the verdict of guilty of murder, a verdict of guilty of manslaughter on the basis of diminished responsibility. In order for us to properly consider the appropriate sentence in this case, we order that a further updated psychiatric report be prepared within four weeks from today and the matter thereafter brought back before this Court for sentence, in accordance with the diaries of both counsel.

(Andrew Macrae)
Vice President

(Maggie Poon)
Justice of Appeal

(Anthea Pang)
Justice of Appeal

Mr Jonathan Man DDPP (Ag) and Ms Phenix Tse SPP, of the Department of Justice, for the Respondent

Mr Simon N M Young, instructed by Johnnie Yam, Jacky Lee & Co, assigned by the Director of Legal Aid, for the Applicant (re: Conviction)

The Applicant appeared in person (re: Sentence)

[1] Appeal Bundle (“AB”), p 64L-U.

[2] AB, p 65N-R.

[3] AB, p 66G-I.

[4] AB, pp 67S-68I.

[5] AB, pp 68S-69B.

[6] AB, p 71G-M.

[7] AB, pp 71M-72B.

[8] AB, p 72N.

[9] AB, p 72Q-S.

[10] AB, p 69P-R.

[11] VRI, AB, p 636, Entries 393-394.

[12] VRI, AB, p 638, Entries 409-410.

[13] VRI, AB, p 640, Entries 427-428.

[14] VRI, AB, pp 625-626, Entries 271-272.

[15] VRI, AB, p 631, Entries 329-332.

[16] VRI, AB, p 630, Entries 317-322.

[17] VRI, AB, p 704, Entries 1149-1152.

[18] VRI, AB, pp 700-701, Entries 1109-1120.

[19] VRI, AB, p 703, Entry 1140.

[20] VRI, AB, p 703, Entry 1146.

[21] AB, p 76L-R.

[22] AB, pp 77O-78G.

[23] AB, p 356D-F.

[24] AB, p 358P-R.

[25] AB, p 229.

[26] AB, p 81H-K.

[27] AB, p 395L.

[28] AB, p 397M.

[29] AB, p 395R.

[30] AB, p 399O.

[31] AB, p 403F-G.

[32] AB, p 405A-D.

[33] AB, p 405K-O.

[34] AB, p 251, at [21] and [22].

[35] AB, p 252, at [23].

[36] AB p 253, at [28].

[37] AB, p 77O-Q.

[38] AB p 253, at [29].

[39] AB, p 78G-K.

[40] AB, p 78L-O.

[41] AB, p 80B-E.

[42] AB, p 79R-U.

[43] AB, p 79C-E.

[44] AB, p 43B-J.

[45] AB, p 411Q-R.

[46] AB, pp 265-266.

[47] AB p 413Q-R; p 414T-U.

[48] R v Dietschmann [2003] 1 AC 1209.

[49] AB, pp 42O-43B.

[50] R v Stewart [2009] 2 Cr App R 30, at [35].

[51] Ibid., at [27].

[52] R v Wood [2008] 2 Cr App R 34, at [37].

[53] R v Tandy (1988) 87 Cr App R 45.

[54] R v Inseal [1992] Crim LR 35.

[55] Stewart, at [24].

[56] HKSAR v Chiu Wai Kan Vicken [2011] 2 HKLRD 643.

[57] Ibid., at [50].

[58] AB, p 43E-J.

[59] AB, p 266.

[60] Crown Court Bench Book, p 350.

[61] Ibid, p 350.

[62] Partly from Crown Court Bench Book, p 350.

[63] AB, p 413G-K.

HKSAR v. LEE WAI MAN

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