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Luc Thiet Thuan And Others v R.

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date26 August 1993
Year1993
Judgement NumberCACC27/1992
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000027/1992 LUC THIET THUAN and Others v. R.

CACC000027/1992

IN THE COURT OF APPEAL

1992 No. 27
(Criminal)

HEADNOTE

There was evidence that the Applicant was suffering from a mental disorder which affected his power of self-control. There was no evidence that the suggested provocation was directed towards any characteristic of the Applicant. The Court was satisfied that the law both in English and Hong Kong was that provocative acts or words can only be relied upon if they are directed towards a characteristic of the accused and that even though an accused may have a mental condition which lessens his self-control, he cannot rely upon provocation unconnected with his characteristic.

IN THE COURT OF APPEAL

1992 No. 27
(Criminal)

____________

BETWEEN
THE QUEEN
and
(D1) LUC THIET THUAN
@ LUK SIK SHUN

(D2) CHEUNG HOI-MAN

(D3) LO SIU-KUEN
1st Applicant

2nd Applicant

3rd Applicant

____________

Coram: Hon. Power, V.-P., Macdougall, V.-P. & Mortimer, J.A.

Date of hearing: 3 August 1993

Date of judgment: 26 August 1993

_______________

J U D G M E N T

_______________

Power, V.-P.:

1. This is the judgment of the Court.

2. The applicant Luc Thiet-thuan, together with Cheung Hoi-man and Lo Siu-kuen, faced one count of robbery and one count of murder. We will refer hereafter to the applicant as D1 and to the others as D2 and D3. The robbery count charged that on 16th February 1988 at Room 101, Tsz King Court Villa, Block A, On King Building, 81-85 Hop Yick Road, Yuen Long, New Territories, Hong Kong, the three defendants robbed Leung Shuk-man of a necklace, a gold ring and approximately $2,000 Hong Kong currency. The murder count charged that the three defendants on the same day and at the same place murdered Leung Shuk-man. They were tried before Ryan J. and a jury. D1 pleaded guilty to robbery in the course of the trial and was found guilty of murder. He was sentenced to imprisonment for eight years on the robbery count and to death on the murder count. He now seeks leave to appeal against those convictions.

3. Miss Draycott, who appeared both here and below for D1, outlined the facts as revealed by his evidence. After an unhappy childhood, he met the deceased when she was 15 and they began living together in what he said was a fond relationship. She, however, eventually left him. He became unhappy and unsettled and began to take drugs. Later, they resumed their intimate relationship, but he found her to be more mature and independent and, as a result of a quarrel over her heroin habit, she again disassociated herself from him. They still occasionally met, however, and had sex together. He became aware that she was running a small brothel, and at times, went to visit her there, usually when he was influenced by drugs. The fact that she was running a successful "business" caused him to develop distinct feelings of inferiority, and he began to make a nuisance of himself. She discouraged him from visiting her, and when he telephoned her, he was told by a man's voice to stop doing so. On New Year's Eve, the evening of her death, he went with D2 to collect a debt which he said she owed him and took a knife in case he had to protect himself from the man who was then associating with her.

4. He told of an argument culminating in insults and abuse from the deceased as a result of which "some heat had popped up in my head" and provoked him into a making violent attack on her.

5. Miss Draycott then referred to the evidence of Dr. Peter Lee, a chartered clinical psychologist and a senior lecturer in medical psychology at the University of Hong Kong. Dr. Lee said that after conducting test to assess intellectual function he found "a widely scattered profile" which meant "that Mr. Luk's various abilities are very unevenly distributed across the different sides of the brain. This pattern is generally indicative of some form of organic brain problem." He went on to say that although D1 had a high score on a visual-spatial construction task, he had a score well below average in a test of conceptual and abstract reasoning. He said that such a pattern of results would not be expected in normal individuals. His conclusion was that D1's ability "was noted to be impaired, especially in the left side of his brain and towards the frontal areas."

6. The next medical witness was Dr. Chan Chee-hung, a Bachelor of Medicine and Bachelor of Surgery and a member of the Royal College of Psychiatrists, U.K. He said that he had carried out an electro-encephalogram to record the electrical activities of D1's brain and found that a persistent slow wave was recorded in the left frontal central area of the brain which indicated a possibility of dysfunction in that area. He said that such waves are indicative of persons with a cerebral lesion and that there was a very good correlation between his EEG findings and Dr. Lee's test as to the site of the brain damage.

7. D1 told Dr. Chan, and repeated when giving evidence, that in 1987 he had undergone a personality change as a result of having been injured in a fall in which he lost consciousness. Prior to that incident he had been timid and fair-tempered, but since its occurrence he had had several episodes of responding irritably to minor provocation in which he felt "a sense of hot flush rising from the abdomen and a certain limit of frustration, tolerance was exceeded". He would then experience an inability to keep control and acted explosively. Dr. Chan made the following comment on that information:

"Such a description I would like to highlight certain points. One is that he had described several episodes and in all these episodes, the events happened in a rather similar and stereotypical way, that is, every time it goes on the same sequence. The action was an explosive one which was out of proportion to the provocation. And at each time he felt a sense of hot gas coming from the abdomen and that was a typical expression of an aura which would happen in some patient (sic) preceding an epileptic attack. However, he has no other manifestations of an epilepsy. These findings are often found in patients with an organic brain damage who found difficulty in controlling an impulse."

8. The prosecution called Dr. Tsang Fan-kwong who stated that he graduated from the University of Hong Kong in 1984 with degrees in Bachelor of Medicine and Bachelor of Surgery and that he was elected as a member of the Royal College of Psychiatrists, U.K. in 1990. This doctor said that after interviews of 30 minutes and 50 minutes he had found no evidence of mental disorder in the applicant. However, under cross-examination, the following exchange occurred:

"Q. You suggest that the abnormality in the EEG is at the left anterior temporal region?

A. Yes.

Q. That is the region immediately next to the frontal region which the other two doctors have mentioned?

A. Yes.

Q. Do you agree that in both the regions that had been mentioned the control of aggression is situated or don't you know?

A. Yes, I agree that, not only aggression.

Q. Other things as well certainly.

A. Yes."

The following passage is also relevant:

"Q. Do you agree, Doctor, that all that Dr. Chan has talked about is typical of this kind of quasi epileptical syndrome?

A. This is actually one of the symptoms for epilepsy or either for the episodic dyscontrol that we seldom diagnose epilepsy or episodic dyscontrol by base on single symptoms.

Q. No, of course not but it is one of the symptoms, isn't it?

A. Yes."

9. While conceding that it was a matter for the jury, Miss Draycott submitted that the above evidence raised an issue as to a mental disorder affecting the power of self control and that the jury should have been told that this was a matter to which they would have to give consideration when determining whether the prosecution had negatived provocation.

10. The trial judge, after dealing with diminished responsibility (s.3 of the Homicide Ordinance), directed the jury as to provocation in the following terms:

"The other defence that the 1st accused puts before you for consideration comes from section 4 of the Homicide Ordinance where it says: -

'Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked, whether by things done or by things said or by both together, to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury. And in determining that question, the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.'

The approach then to the question of provocation is two-fold. You will, first of all, have to apply a subjective test, whether the words or acts or a combination of them were such as to cause the 1st accused to suddenly and temporarily lose self-control, making him at the time so subject to passion as to make him for the moment not the master of his mind. So that is the first test that you will have to apply when you come to consider the defence of provocation. Were the acts, words, or a combination of them such as to cause the 1st accused to suddenly lose his self-control and not be at that moment the master of his mind?

If you are satisfied that this might have happened, then you have to go on and consider the object of the test, the other limb, which is, were the words or the acts or a combination of them which caused the 1st accused to suddenly lose control such that a reasonable person in those circumstances would have been provoked not only to lose his self-control but to react to the provocation in the way that the 1st accused...

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