HKSAR v Liang Yaoqiang (2021) 24 HKCFAR 193, [2021] HKCFA 26

Robert Pang SC (leading Denise Souza) appeared for the successful appellant at the Court of Final Appeal in HKSAR v Liang Yaoqiang (2021) 24 HKCFAR 193, [2021] HKCFA 26.

In 2009, D attacked and killed V, a woman with whom he cohabited, chopping her 213 times with a knife. D offered, at all times, to plead guilty to manslaughter by reason of provocation. D was tried for, and convicted of, V’s murder twice. Those convictions were each overturned on appeal with two retrials ordered. For the first trial and retrial, D relied upon a defence of provocation. On the second retrial, D ran a fresh defence of diminished responsibility supported by newly obtained psychiatric evidence. During the second retrial, the Judge provided counsel with draft written directions to the jury, which did not identify the relevance of the psychiatric evidence to the defence of provocation. Although defence counsel did identify for the Judge its relevance to one element of the defence of provocation, neither defence nor prosecution counsel alerted the Judge to the relevance of that evidence to the question whether D had or might have lost his self-control under the defence of provocation (the Question).

D was subsequently convicted of V’s murder, for the third time. D then successfully ran the argument before the Court of Appeal that the Judge had misdirected the jury in failing to draw their attention to the relevance of the psychiatric evidence to the Question, and his third conviction was quashed (see [2021] 1 HKLRD 26). The majority then exercised the discretion, pursuant to s.83E of the Criminal Procedure Ordinance (Cap.221), to order a third retrial, taking into account, inter alia, the following considerations: (i) that defence counsel’s failure to draw the Judge’s attention to the relevance of the psychiatric evidence to the Question contributed to, or was “partly responsible” for, the Judge’s error; (ii) that the decision not to draw the Judge’s attention to its relevance was a deliberate, tactical one; and (iii) that the running of the new defence of diminished responsibility also partly contributed to the misdirection. D appealed to the Court of Final Appeal against the order for a third retrial.

Held, unanimously allowing the appeal, quashing the order for retrial, entering a conviction against D for manslaughter on the basis of provocation and imposing such sentence as would allow for his immediate release from custody, that:

(Per Cheung CJ, the other Judges agreeing)

• (1) The majority of the Court of Appeal misapprehended what happened at the trial and took into account irrelevant considerations when exercising the discretion to order a third retrial such that the exercise of discretion miscarried. The inference that counsel was deliberate in not drawing to the Judge’s attention the relevance of the psychiatric evidence to the Question, and that this was a tactical decision, was not justified, nor was the supposed tactical advantage comprehensible. Moreover, even if counsel’s omission was deliberate, the extent to which D should be held vicariously responsible was highly debatable. Additionally, it was not a valid criticism on the question of retrial to suggest that raising the new defence of diminished responsibility was partly responsible for complicating the defence of provocation (HKSAR v Zhou Limei (No 2) (2020) 23 HKCFAR 169 applied). (See paras.31 – 42.)
• (2) Exercising the discretion afresh, the interests of justice did not require a further retrial. Amongst other relevant considerations, the following matters decidedly tilted the balance against ordering a third retrial: (i) D had already undergone three full trials and multiple appeals over the course of 11 years — there must come a point where to order another retrial would simply be oppressive; (ii) D had been remanded in custody for almost 12 years, equivalent to a starting point of almost 27 years’ imprisonment on a conviction for manslaughter, given a discount for plea and remission for good behaviour — if, upon retrial, he were only found guilty of manslaughter, that starting point would be way beyond the higher end of the usual range, even taking into account the circumstances of the killing; (iii) while the public interest in seeing the murder charge resolved by a jury was great, the quality of the evidence and demeanour of witnesses were bound to be affected by such lapse of time and the Court was slow to suggest that any prejudice to D could be satisfactorily remedied by appropriate jury directions; (iv) although D was thrice convicted of murder, each trial process was flawed, and provocation remained at least reasonably arguable such that a murder conviction was not a foregone conclusion; and (v) on the facts of the present case, the errors of counsel in previous trials which contributed to the appeal history carried little, if any, weight in considering how the discretion should be exercised (Au Pui Kuen v Attorney General of Hong Kong [1980] AC 351 considered). (See paras.43 – 50, 52.)

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