HKSAR v Siu Wai Cheong [2021] 3 HKLRD 29, [2021] HKCA 804

Steven Kwan appeared for the successful respondent in the Court of Appeal in HKSAR v Siu Wai Cheong [2021] 3 HKLRD 29, [2021] HKCA 804.

 

D was unanimously convicted of one count of the murder of his wife, V, following a trial before a Judge and a jury. There was no issue that D had killed V, who died from multiple stab wounds and manual strangulation. Nor was the truth and reliability of the prosecution evidence in any substantial dispute. The prosecution case was that D had lost his temper and killed V; and during the attack, D’s mind was clear and he intended to stab V to death. D’s case was that he had been living in a toxic environment, and on the day of the incident, he and V had an argument, during which V stabbed D’s hand with a pair of scissors, and that was “the last straw”. He further contended that he had been feeling unwell a few days prior to the incident and as a result of taking prescribed drugs and other over-the-counter medication, he was confused and muddle-headed, which was exacerbated by drinking red wine infused with onions on the day of the incident. D relied on the partial defence of provocation. D further attempted to raise diminished responsibility as a defence but eventually abandoned it when it became unrealistic and unarguable following the evidence of *30 the defence expert witness, who concluded that D did not suffer from any psychiatric disorders at the material time. The prosecution expert witness testified that whilst one of the drugs prescribed and one of the over-the-counter drugs had been associated with psychosis, such a consequence was very rare; and in the case of the over-the-counter drug (a commonly used decongestant), there were only two reported cases worldwide of users ever having had a psychotic episode. D sought leave to appeal against conviction, arguing that: (i) the Judge, having decided to mention the defence of diminished responsibility, should have told the jury what it meant rather than leaving the issue unexplained (Ground 1); (ii) the jury should have been directed as to D’s “possible psychosis”, being part of D’s “special characteristics”, in relation to the subjective first limb of the defence of provocation (Ground 2).

 

Held, refusing leave to appeal against conviction, that:

 

(1) Ground 1 had no merit. Although it was unnecessary for the Judge to mention diminished responsibility, it could not have done any conceivable harm or prejudice to the defence, given that the issue had clearly been abandoned. The jury received no instructions on the topic, because it was no longer a viable, live issue and the jury would have understood that it was no longer relevant. (See paras.38 – 39.)

 

(2) Ground 2 had no substance. There was simply no evidential basis for putting such a remote and speculative possibility of a psychotic episode before the jury. Therefore, D’s submission foundered on the absence of any evidence justifying any such “special characteristic”. Even if the Court were to have accepted there was such a possibility of a “special characteristic”, there was no suggestion in the evidence that V ever directed her allegedly provocative words at D’s supposed psychosis. Whilst intoxication was a relevant issue, given that there was no evidence of D experiencing any drug and/or alcohol induced psychotic episode at the time of the killing, it was not relevant to the question of whether such an episode could amount to a “special characteristic” of D. (See paras.44 – 48.)

 

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

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