Hksar v Chiu Wai Kan Vicken

CACC438/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 438 OF 2009

(ON APPEAL FROM HCCC NO. 172 OF 2009)

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Hon Stock VP (giving the judgment of the Court):

Introduction

1. On 30 July 2008, the applicant killed his stepfather inside the stepfather’s flat in Kowloon City. He was then aged 23 years and the father 75. The cause of death was manual strangulation and massive blood loss from numerous wounds.

2. The applicant was indicted for the offence of murder and pleaded not guilty. On 8 December 2009, after a trial before Beeson J and a jury, the applicant was found guilty by a majority of 5:2. He now seeks leave to appeal that conviction.

3. It was common ground that before the killing the applicant had consumed ketamine. The defence at trial was diminished responsibility, although the issues of intent and provocation were also left to the jury for their consideration.

4. The prime question that falls for this Court’s consideration is the adequacy of the judge’s direction on the question of diminished responsibility.

Events before the killing

5. The applicant has never known his natural father. His mother, who owns a business, married the victim in 1988 but since 1998 they lived separately. The applicant was cared for by various people, sometimes his mother, sometimes others. His mother moved out in 1998 and the applicant continued to live in the flat with his stepfather (it is convenient from here on to refer to him as “the father”) and, according to his evidence, enjoyed a relationship with him better than previously. After he left school, he had a variety of jobs and worked for a few years in his mother’s company.

6. He started taking ketamine at the age of 16 years. According to his testimony, he was consuming it two to three times a week by the time he was 18 or 19 years. He managed to stop consumption for about nine months and then because of an emotional upset over a girlfriend, he relapsed and began to take the drug again. Eventually, according to his evidence, he began to consume the drug two to three times each day.

7. In May 2008, the applicant married and moved out of the father’s flat. He said that despite the fact that he sometimes quarrelled with the father, his relationship with him was, on the whole, good.

8. Because of his drug habit, the marriage floundered. Two to three days prior to the killing, there was a serious quarrel and his wife drove him out of the matrimonial home because of his ketamine problem. As a result, he returned to live in the victim’s flat in Kowloon City.

9. According to the uncontested evidence, at about 4 to 5 am on 28 July 2008, the applicant returned to the matrimonial home with some friends (Mr Lin and Mr Wong) to ask his wife to forgive him but the attempt was unsuccessful and he went with his friends for a drink and to a massage parlour. Thereafter he returned to his father’s flat.

10. He said that the situation with his wife made him very unhappy and that as a result he consumed more drugs. A few hours before the killing he left the flat and went down to the street nearby to obtain ketamine. When he left the flat, the father was sleeping inside his own bedroom. The applicant returned to the flat, sat on the sofa and consumed the ketamine. He said that because he was very unhappy he was unable to resist taking the drug.

11. Quite what then occurred is not clear because the applicant gave differing accounts of the events leading to the killing: accounts in his statements to the police and in his oral testimony.

Accounts of the killing

12. In his statements to the police, of which there were four (three were video-recorded), he said:

(1) that there had been a quarrel with his father about the television making too much noise and that the two of them then had a fight during which he, the applicant, took a screwdriver from a drawer and his father took a pair of scissors and that the applicant stabbed his father;

(2) in the first videoed-interview, much the same thing, save that the argument was triggered by his father’s complaint about his consumption of ketamine. He asserted that the ketamine which he had consumed rendered him semi-conscious and that under the influence of it, he had killed his father, and had then taken a bus to the airport because he did not know what he was doing. He telephoned his friend Mr Wong and told him that his father was in trouble and asked Mr Wong to go to his father’s residence and he also spoke to Mr Lin and told him that he had had a fight with the deceased;

(3) in the second videoed-interview, in which he spoke about events in the third person, that “the person” (himself) was in a crazy state and was very confused; he had used a pair of scissors which his father had snatched but that he had stabbed his father with a screwdriver and went to the airport when he regained consciousness and spoke to a friend saying that he might have killed his father. In the course of this interview, he demonstrated how the fight had occurred and, for the first time in his discussions with the police, he talked of having hallucinated in the small hours of 30 July 2008 after he had consumed the ketamine. At the time of the killing and shortly thereafter he did not know what he was doing.

13. He told the jury that he had a conviction for possession of dangerous drugs, namely, ketamine. He had started taking ketamine from the age of 16 years; eventually on a daily basis. He said that about six months to one year before the killing, a voice started to speak to him and told him that his father would hurt him. The voice would come to him even when he did not take drugs and he became aware, through the voice, that his father was performing black magic. He had told other people about the voice. When his wife threw him out of the matrimonial home, he became very unhappy, the voice continued to speak to him and his consumption of ketamine increased.

14. He testified that on the night of the killing there was in fact no dispute with his father. He purchased ketamine. He was not able to resist taking ketamine because he was very unhappy. He took it whilst he was sitting on the sofa and, soon after, he took a saw from a drawer and tried to hurt himself with it but he did not do that because the voice told him to kill his father instead, so he took a pair of scissors and stabbed his father who was in the bedroom. The taking of the drugs and the attack on the father followed closely upon each other. His father got up from the bed and followed him and the voice kept telling him to kill his father and that if he did not kill him, he would die himself. His father snatched the scissors and he himself took a screwdriver from the drawer. He was unable to control himself and he effected a frenzied attack on his father. He was out of his mind, stabbing with the screwdriver while trying to snatch the scissors from his father. He applied the saw to his father’s neck. Then a voice told him to get away and that someone would fetch him at the airport. He went to the airport.

15. He said that he had made up the story to the police about his father scolding him. The truth was that he had heard a voice; indeed he was still hearing voices during the interviews but he did not want to tell anybody about that because he did not want to end up in a psychiatric hospital.

Other witnesses

16. Mr Lin, who testified as a prosecution witness, was a friend of the applicant. He said that he was aware of the applicant’s ketamine habit. He frequently told the applicant to stop taking the drug but the applicant ignored him and consumed it in different places: at home, in a bar, in the park, at a pier. When the applicant consumed ketamine, his speech was slow and he would take a long time to answer questions. Sometimes his condition was such that he would talk to a lamp-post. The applicant had also told him that somebody was going to harm him (the applicant) and cause him to be unwell all over his body, that his father cursed him with black magic and that it was because of the pain from the black magic that he had to continue taking ketamine. Mr Lin noticed that the applicant’s condition deteriorated. However, in the two days before the killing, during which time he had seen the applicant, the applicant appeared to be acting normally.

17. At about 4 am on 30 July, Mr Lin was with Mr Wong and another friend when they received a call from the applicant. The applicant sounded incoherent. He called again later and said he was at the airport and that he had killed his father. The applicant said that he had stabbed his father once. Mr Lin thought that the applicant was talking nonsense and it was apparent to him that the applicant was speaking under the influence of ketamine. Mr Lin went to the father’s premises and there found the body. He then rang the manageress of a bar which the applicant used to frequent.

18. The manageress of the bar, having received the call from Mr Lin, told him to call the police and she then telephoned the applicant and spoke to him. She thought he was not very sober and advised him to go to the police station. At the time she spoke to him, the applicant’s wife was with her.

19. It is common ground that after this telephone call, the applicant went to Kowloon City Police Station at about 6:45 am and surrendered himself.

20. The evidence was that there was no sign of a struggle in the...