HKSAR v Li Cheung Choi (李長再) (2025) 28 HKCFAR 1, [2025] HKCFA 1 (Tien Kei Rui)

Phil Chau SC and Tien Kei Rui represented the appellant in HKSAR v Li Cheung Choi (李長再) (2025) 28 HKCFAR 1; [2025] HKCFA 1.

D was convicted of murdering his wife after trial before a Judge and jury. He did not give evidence at the trial and ran the partial defence of diminished responsibility. D’s case was that he experienced delusions and hallucinations prior to the killing as he suffered from stimulant psychosis (an abnormality of mind for the purpose of such defence). D relied on the evidence of his psychiatrist, but D’s assertions of delusions and hallucinations were only made to the psychiatrist 18 months after the killing. They were also inconsistent with what he told the psychiatrists at a psychiatric centre where he was detained pending trial, who opined that D suffered from drug intoxication (not an abnormality of the mind). The Trial Judge directed the jury that D’s statements to the psychiatrists and set out in their expert reports were hearsay; and that it was for the jury to determine whether D suffered from an abnormality of the mind at the time of the killing, after considering the psychiatric evidence as expert opinion evidence and the surrounding circumstances of the offence. D’s appeal was dismissed by the Court of Appeal, which held that the Trial Judge’s directions were in accordance with the current state of the law (see [2021] 4 HKLRD 423). However, based on an analogy with the direction for mixed statements in R v Sharp [1988] 1 WLR 7, the Court of Appeal suggested that it would be better to direct the jury that the whole expert report was before them to determine where the truth lay, including the medical history recited by a defendant to the psychiatrist. Where the defendant did not give evidence at trial in support of the medical history, the jury may be directed that they were entitled to take that into account when determining the weight to be attached to the medical history which may affect their assessment of the expert opinion founded on it. The jury may also be directed that they may attach less weight to the defendant’s out-of-court statement not subject to cross-examination; and that the defendant could have provided evidence to prove the medical history had he chosen to do so. However, these comments would not be appropriate where the defendant was medically unfit to give evidence (the Proposed New Approach). On D’s appeal before the Court of Final Appeal, the question of law was “Are the statements of an accused to a medical practitioner regarding his or her background and state of mind at the time of the offence, and the circumstances of a relevant event or events, hearsay evidence and inadmissible when he or she does not testify at trial and, if so, does this also render inadmissible the expert opinion of the medical practitioner?”

Held, unanimously dismissing the appeal, that:

(Per Lam PJ, the other Judges agreeing)

(1) The established principle was that it was for the legislature, not the judiciary, to create new exceptions to the hearsay rule. Whilst there had been developments in other common law jurisdictions, the suggestion to create a new exception to the hearsay rule under the Proposed New Approach was rejected (R v Blastland [1986] AC 41, HKSAR v Hung Wai Yip (2016) 19 HKCFAR 187, Wong Wai Man v HKSAR (2000) 3 HKCFAR 322 applied; R v Smith [1989] 3 NZLR 405, Walton v The Queen (1989) 166 CLR 283, R v Khan [1990] 2 SCR 531, R v Finta [1994] 1 SCR 701, R v Starr [2000] 2 SCR 144, R v Rongonui [2000] 2 NZLR 385 considered). (See paras.34-40, 65.)

(2) The rationale for endorsing the mixed-statement approach was not applicable to an out-of-court statement by a defendant to a psychiatrist. In a trial, admissions were deployed to prove or disprove facts relevant to factual issues raised. In contrast, expert opinion was deployed to assist the jury in analysing an issue involving special knowledge or expertise outside the experience and knowledge of a judge or juror. Additionally, an expert did not vouch for the credibility of the factual information provided by the defendant since such information was not within his personal knowledge. Here, the prosecution did not rely on any out-of-court statement by D to the psychiatrists as evidence of its truth as opposed to evidence that a defendant had made those statements to the psychiatrist (HKSAR v Poon Hoi Wing [2001] 1 HKC 363 considered; R v Sharp [1988] 1 WLR 7 distinguished). (See paras.41-45.)

(3) The Proposed New Approach did not contain proper threshold requirements for permitting out-of-court statements to be admitted as evidence of their truth. There was nothing unique in the relationship between a psychiatric expert and an accused that provided sufficient safeguards in this respect. Such approach would open the door to the objectionable forensic manoeuvre whereby unproved assertions and unsubstantiated opinions were placed before juries and relied upon by the defence. It also failed to pay due regard to the underlying rationale for the hearsay rule if the jury had to assess the weight to be attached to a factual assertion without the benefit of cross-examination (R v Turner [1975] QB 834, R v Gordon (NSW Crim CA 44/1981, 13 August 1981), R v Blastland [1986] AC 41 applied). (See paras.46-47.)

(4) Moreover, adopting the Proposed New Approach would not lead to a different outcome in this case. The Trial Judge’s direction that it was for the jury to decide if they could act upon the opinion of D’s psychiatrist based on D’s unsworn assertion that he had suffered from earlier hallucinations and delusions was perfectly comprehensible to the jury, was adequate in safeguarding D’s legitimate interests and more helpful than a direction under the Proposed New Approach. (See para.48.)

(5) Where it was established that the defendant was unfit to testify, the trial judge should direct the jury to take evidence of such unfitness into account in assessing the weight to be attached to the expert opinion even though it may be based on the out-of-court statements of such defendant. Further, it was wrong in principle to re-characterise the hearsay nature of a piece of evidence simply because the defendant suffered from a condition that rendered him unfit to testify. Even where no meaningful testimony could be obtained from the defendant, it was possible for an expert to form an opinion on abnormality of mind and substantial impairment based on other evidence. It was rare that the expert opinion would be inadmissible. (See paras.49-50.)

(6) Statements made by an accused to a psychiatrist concerning his medical history or his past state of mind for the purpose of an expert opinion were not original evidence, lacked independent evidentiary value and did not fall within any common law exception to the hearsay rule. These statements were different from a person’s contemporaneous statement regarding his or her current health or feelings which could be the best original evidence of such condition or sentiments. In the present case, there was no basis for suggesting that D’s statements to the psychiatrists had the requisite degree of spontaneity, or came within the scope of original evidence of his state of mind (Walton v The Queen (1989) 166 CLR 283, R v Andrews [1987] AC 281, R v Gordon (NSW Crim CA 44/1981, 13 August 1981) applied; R v Pangallo (1989) 51 SASR 254 not applied). (See paras.51-59.)

(7) Here, apart from the out-of-court statements, there was other evidence relevant to the defence of diminished responsibility which the psychiatrists duly took into account. In the circumstances, the Trial Judge was obliged to leave the issue of diminished responsibility to the jury and let them decide on the weight to be attached to the evidence of each expert. (See para.60.)

(8) The answer to the question of law was as follows:

• • (i) An accused’s out-of-court statement to a medical expert regarding his background and state of mind at the time of the offence was a hearsay statement by nature insofar as it was deployed to prove the truth of its contents. However, if it was admitted only for the purpose of showing what the accused had said to an expert, it was not deployed for a testimonial purpose and was admissible without infringing the hearsay rule (Oei Hengky Wiryo v HKSAR (No 2) (2007) 10 HKCFAR 98, HKSAR v Milne John (2022) 25 HKCFAR 257 applied). (See paras.28, 66.)
  • (ii) It was very rare that an expert’s opinion was proffered solely on the basis of the out-of-court statement of an accused. Where an expert’s opinion was based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter was purely one of weight. When diminished responsibility was raised as a defence, it would rarely be appropriate for a judge to rule that an expert opinion relied upon by the defence was inadmissible when its factual foundation was in dispute (HKSAR v Kissel [2014] 1 HKLRD 460 considered). (See paras.61-64, 66.)

[The above is excerpted from the headnote to the report in HKCFAR.]