COURT OF APPEAL
CRIMINAL APPEAL NO. 169 OF 2010
（ON APPEAL FROM HCCC 312 OF 2009）
HKSAR Respondent and
TAM HO NAM Applicant
Before ： Cheung and Hartmann JJA and Lunn J
Date of Hearing ： 25 January 2011
Date of Judgment ： 21 February 2011
Hon Lunn J （giving the Judgment of the Court） ：
1. The applicant seeks leave to appeal against his conviction on 17 May 2010 after trial by a judge and jury for the offence of the murder of Lau Shuk Fan on 29 April 2009.
The prosecution case
2. There was no dispute at trial that in the early evening of 29 April 2009 the applicant had attacked the deceased with a chopper in his family home. She was his girlfriend and they lived together at his home. No less than 50 blows were inflicted upon her with great force. Two ambulancemen， who attended the scene of her killing soon afterwards， found her to be dead.
3. It was the prosecution case that the applicant had lost his temper and killed the deceased in a rage because he suspected that she was having an affair with his older brother. The prosecution relied on the evidence of the two ambulancemen who attended the scene of the killing and who testified that the applicant had said to them that there was an affair between his elder brother and his girlfriend， “so I chopped my girlfriend”。 Also， the prosecution pointed to statements made by the applicant in two records of interview in which he explained the circumstances in which he had come to suspect the affair. The prosecution suggested that， in consequence of his concerns about his girlfriend having an affair with his elder brother， he had become very angry and， having lost self-control， had killed the deceased. The injuries sustained by the deceased evidenced the applicant‘s violent rage at the time he had attacked the deceased.
4. The prosecution invited the jury to reject the applicant‘s testimony that， at the instigation of internal “voices”， he had chopped the apparition of a pig’s head into which his girlfriend‘s head had had mutated in his presence. That evidence was fabricated. In consequence， the evidence of the psychiatrists called on behalf of the applicant was irrelevant and to be ignored.
The defence case
5. The primary case advanced by the applicant at trial was that， at the time of the killing of the deceased， he was suffering from an abnormality of mind induced by disease that substantially impaired his mental responsibility for his acts in causing her death. Alternatively， he relied on the partial defence of provocation.
6. The applicant testified at his trial， as did two psychiatrists called on his behalf. He said that he consumed “ice” about two or three times a month. He had done so two or three days before the date of the death of the deceased. He accepted that he harboured suspicions that his girlfriend was having an affair with his elder brother. However， he denied that was connected in any way to the death of the deceased. He said that whilst he was talking to his girlfriend he heard voices telling him that nobody liked him and it was better that he die. Then， his girlfriend‘s head metamorphosised into that of a pig. Having obtained a chopper from the kitchen he struck the deceased some blows with the chopper. Then， he desisted in his attack. Whilst he was making a telephone-call to the police the deceased attacked him with the same chopper. He testified that it seemed that his assailant wanted to take his life. In his first record of interview （counters 444-450） he had said that in consequence he felt， “very angry” and could no longer control his emotions. He regained possession of the chopper and resumed his attack on the deceased.
7. Dr C.H. Yuen and Dr Sylvia Chen were the two psychiatrists called in the defence case. Dr Yuen， who had examined the applicant as early as 11 May 2009 and on thirteen subsequent occasions， expressed the opinion that the applicant was not schizophrenic but that he might have been psychotic at the time of the offence. In his opinion， it was possible that the applicant was suffering from such an abnormality of mind as substantially impaired his responsibility for what he had done.
8. Dr Sylvia Chen， who examined the applicant once only on 30 April 2010， was of the opinion that the applicant was definitely suffering from an abnormality of mind such that his mental responsibility for his acts was substantially impaired.
GROUNDS OF APPEAL AGAINST CONVICTION
9. The single ground of appeal against conviction advanced on behalf of the applicant by Mr Surman， who did not appear for the applicant at trial， is that the judge erred in directing the jury that the issue of provocation arose only “in respect of wounds inflicted on the applicant by the deceased” and thereby failing to invite the jury to have regard to the evidence in relation to the applicant‘s suspicion of infidelity on the part of the deceased.
10. In support of that ground he submitted that， firstly the judge has a duty to place the defence of provocation before the jury， even if it is not raised by the parties or is inconsistent with the defence advanced at trial. [See Ho Hoi Shing v HKSAR （2008） 11 HKCFAR paragraphs 12 and 14-15.] Secondly， the judge has a duty to identify the evidence that might support the conclusion that the defendant lost his self-control， unless such evidence was obvious. [See HKSAR v Tsui Chu Tin  1 HKC 518 at paragraph 19.]
11. Whilst it was accepted that the judge had correctly directed the jury， in the context of the issue of provocation， to consider the evidence of the applicant‘s response， as he asserted in his first record of interview and in his testimony， to being attacked on his neck with a chopper by the deceased， it was submitted that the judge erred in not directing the jury also to have regard to the evidence relating to the applicant’s suspicion of the deceased‘s infidelity， in particular to things said and done to arouse that suspicion. On the contrary， the judge’s direction to the jury as to evidence relevant to the issue was restrictive （page 10M-O） ：
“It follows， members of the jury， that you only need to consider the issue of provocation if you accept his evidence that those neck wounds were inflicted on him by Ms Lau. If you do not accept that the question of provocation does not arise.” [Emphasis added]
The judge went on to emphasise the point （page 11J-K） ：
“… the conduct which is said to caused the provocation is the accused‘s testimony that it was Ms Lau who had chopped him on the right neck with the chopper.”
12. Finally， it was submitted that the fact that， in his testimony， the applicant denied some of the conduct evidencing his suspicion of the infidelity of the deceased that he had asserted in his video record of interview （page 34A-H）， in particular the suspicion of her infidelity was the reason that he killed， made it all the more important that the judge identify the out-of-court statements as being evidence that could be relied upon by the jury in respect of the issue of the applicant‘s loss of self-control.
A CONSIDERATION OF THE SUBMISSIONS
13. It is appropriate to point out at the outset that the basis upon which the issue of provocation was left to the jury， namely in relation to the applicant‘s testimony that the deceased had attacked him with a chopper which had caused him to lose self-control and kill the deceased， was that which counsel for the applicant at trial had specifically requested.
Counsel‘s closing speeches
14. Obviously， it was on that basis that counsel for both the prosecution and the applicant addressed the jury in their closing speeches. Counsel for the prosecution said， “If… that girl did not grab the knife and attack him， then provocation completely falls away.” （Transcript 14B.） Nevertheless， of the circumstances in which the deceased had been killed and the relevance of the evidence of the applicant‘s suspicion that his brother and the deceased were having an affair he said earlier （Transcript page 2H-J） ：
“…… whether well founded suspicion or not well founded… he got angry over his suspicion that his girlfriend and his brother were having an affair… He got very， very angry over this， so angry that he lost his self-control.”
15. Counsel went on to invite the jury to reject the applicant‘s testimony that his suspicions of an affair between the deceased and his older brother had nothing to do with the killing of the deceased. On the contrary， he suggested （page 7O-P） ：
“It is in fact on a true analysis of the evidence which set off his uncontrollable anger. It is in fact the only factor and the only fact leading to his anger was this perception.”
16. Counsel went on to suggest to the jury that invitation that they view the facts in that way was supported by the evidence of the police officer and two ambulancemen who dealt with the applicant at the scene of the killing and escorted him to hospital， in particular that he had told the latter that he had chopped the deceased because of her affair with his older brother （transcript 7Q-8H）。
17. Although counsel for the applicant reminded the jury of part of the evidence relating to the applicant‘s suspicions of an affair between the deceased and his older brother， he did so in the context of a consideration of diminished responsibility， suggesting that the applicant had a paranoid suspicion of that relationship. Of the issue of provocation， counsel suggested that it arose in these circumstances ： “（after） the initial assault on the girl； he had desisted before it proved fatal； he was attempting to make a phone call； the girls attacked him from behind and that， as he said in his interview， caused him to lose his self-control” （transcript 31T-32A）。
The various accounts of the applicant
18. The judge‘s observation to the jury of the applicant’s various versions of what had happened in the events that led up to the death of the deceased as being of an “evolving nature” was an apt description. It is useful to consider the chronological sequence in which the applicant gave his accounts of the circumstances of the killing.
（i） 29 April 2009
19. As noted earlier， the applicant had told the two ambulancemen who attended the scene of the killing， in effect， that he had chopped the deceased because of her affair with his older brother.
（ii） 7 May 2009—3：50 p.m.
20. At 3：50 p.m. on 7 May 2009 he was arrested and cautioned in respect of the murder of the deceased. In response， he said ：
“Ah Sir， I did not kill her with intent. At the beginning， it was with a view to scaring her， but I didn't expect that she would react in such a way upon seeing me holding a knife.”
7 May 2009， 17：29—first record of interview
21. The explanation that the applicant had given the two ambulancemen， namely that he killed the deceased because of her affair with his older brother， played a prominent part in his first record of interview， in which account he gave details of the basis for that suspicion. After he had finished work that day at about 5 p.m.， and after he had spoken to the deceased on the telephone， he received an **S from her， “your elder brother has come back” （counter 176）。 As a result， he felt anxious and returned home in haste. He used the stairs to do so lest， if they were having an affair， they were watching out for him on CCTV （counters 178-194）。 His suspicions had first been aroused in mid-March 2009 when he had observed the deceased playing “footsie” with his older brother‘s chair （counter 762）。 Also， at around the time he heard noticed that his brother had written on drawings made in a notebook by the deceased.
22. The applicant said that there came a time that he had confronted the deceased in their bedroom with his suspicions that she was having an affair with his older brother. Having denied that suggestion， she remained silent. He took the silence to be a tacit confession （counters 222-264）。 For his part， he went to sleep. Then， the deceased wept， denying the affair emotionally （counters 306-8）。 At counter 350， he said that he had searched his brother‘s bed on the upper bunk and， having found cigarette butts of a brand smoked by the deceased and having found the bedding to smell strongly of sweat， the applicant went on to say ：
“… （if） he just arrived home why would there be such a big smell of sweat on the bed？ Then， I thought and thought and became confused. Then afterwards， I then —— became angry. At that time I was very angry. I thought （that） what I thought were not-would not be wrong. I then took out a knife and asked her if she had done that. Then， she said， ‘No’。 Very excitedly she reacted as she pushed me away saying， ‘No. Why did you take out a knife？’ Afterwards， I chopped her.”
23. During that interview he said for the first time that the deceased had attacked him with a chopper， after he had desisted in his attack. Then， he resumed his attack upon the deceased， having become “ mad again”。 He became “very angry” and “could no longer control my emotions”。 He kept striking her with a chopper （counters 444-450）。
（iv） 8 May 2009—second record of interview
24. In his second record of interview， conducted on 8 May 2009， the applicant repeated his account of harbouring suspicions of an affair between the deceased and his older brother， repeating the details that constituted the basis of that suspicion. On his return to his home he had enquired of the deceased what she had been doing that day and she had told him that she had been drawing and watching television. He saw a single sheet drawing， which he recognised had been drawn by the deceased on which his brother had written in graffiti style， “Century Fuck You”。 That made him feel “unhappy” （counters 250-267） and “very confused， very irritated” （counter 276）。 He agreed with the suggestion that he became “very angry， very confused” （counter 287）。
25. The applicant resiled from the allegation that he had made in his first record of interview that the applicant had attacked him with the chopper. He admitted that， after he had finished chopping the deceased， he had chopped himself on both his neck and his leg （counter 374-6）。 The deceased had not taken hold of the chopper and chopped him. He explained that in the previous interview he had asserted that she had done so because he was frightened and very confused （counter 384）。
（v） The applicant‘s testimony at trial
26. In his evidence， the applicant repeated his account of his suspicions that the deceased and his older brother were having an affair， albeit that he now denied that was the reason that caused him to lose control and to start chopping her. Rather， he said that while he was together with the deceased at his home he had heard voices in his head asking him to die， after which the deceased‘s head had mutated into that of a pig. He obtained a chopper from the kitchen and chopped that apparition. However， he desisted and， having picked up the deceased’s mobile phone in order to call the police， was then attacked from behind with a chopper on his neck by the deceased. He retrieved the chopper from her and attacked her. He said that his withdrawal， in his second record of interview， of the same account that he had given in his first record an interview and the account that he had given of the injuries he had sustained as being self-inflicted， was a lie.
27. The applicant confirmed what he had said in his first record of interview， namely that on his brother‘s return to the family home， after he had chopped the deceased， he told him that he had killed someone and asked him if he had had an affair with the deceased.
28. The single issue in the appeal is whether or not the judge erred in directing the jury in respect of the ambit of evidence that was relevant to the issue of provocation. Was he wrong to direct the jury ：
“You only need to consider the issue of provocation if you accept as evidence that those neck wounds were inflicted on him by Miss Lau. If you do not accept that then the question of provocation does not arise.”
29. Conversely， was he required to direct the jury to have regard to all the evidence in respect of the issue of the applicant‘s suspicions of infidelity by the deceased and his reaction thereto， as being relevant to the issue of provocation？
The ambit of the evidence relevant to the issue
30. The judge directed the jury correctly that even if they rejected the testimony of the applicant that did not relieve the prosecution of the burden of proving the guilt of the applicant （page 15E-G）。 He went on to direct them that， in determining the applicant‘s credibility and what weight they could give to his evidence， they were entitled to have regard to his out-of-court statements to the police in records of interview and to the testimony of the psychiatrists called in the defence case of what he had said to them. Of the evidential status of those out-of-court statements， he said （page 15Q-S） ：
“However， the statement itself， the earlier statement， is not evidence of the truth of its content， except for those parts which the accused has also told you in court are true.”
31. Although the judge went on to direct the jury that was of particular importance in respect of the evidence of the psychiatrists， whose testimony of what the applicant had told them was not to be regarded as proof of the truth “… unless the accused has also told you in court， in his evidence that it is true”， the judge gave no qualification of his direction in respect of the status of the out-of-court records of the applicant‘s records of interview with the police.
32. A short while later， the judge directed them in respect of the applicant‘s records of interviews， that it was for them to determine （page 17Q-S） ：
“whether you should rely on the contents of the interviews and， if so， what weight you should attach to it.”
33. The directions dealt with two different issues， namely the relevance to an assessment of the credibility of the applicant of inconsistent out-of-court statements and their admissibility in respect of the issue of truth of out-of-court statements by the applicant. With respect to the judge， a clear distinction between the two directions was not drawn. The juxtaposition of the two directions may have led the jury to understand that they were not to have regard to an account given by the applicant in an out-of-court record of interview with the police as proof of the truth if it was inconsistent with his evidence， unless during his evidence the applicant confirmed it to be true. Accordingly the jury might have understood that， to the extent that his out-of-court statements in records of interview of， and the basis for， his suspicion of an affair between his brother and the deceased and his response was contradicted by his testimony， the out-of-court statements were not evidence of the truth.
34. Generally， the out-of-court statements of a witness are hearsay and inadmissible as to the truth of the assertions that are made. Where the out-of-court statement is inconsistent with testimony of the witness， that fact is relevant to the issue of the credibility of the witness. An out-of-court statement made by an accused， in which admissions against interest are made， or in which some admissions are made in a “mixed” statement， is admissible as an exception to the hearsay rule. All of the contents of the statement are admissible as evidence of the truth. （R v Duncan （1981） 73 Cr. App. R. 359 at 364， cited with approval by Lord Hoffmann NPJ in Li Defan v HKSAR （2002） 5 HKCFAR 320 at 334B-E， paragraph 29）。
The inconsistency of the applicant‘s testimony with his out-of-court statements
35. As noted earlier， the applicant's testimony introduced new elements into his account， namely the metamorphosis of the deceased‘s head into that of a pig and the presence of internal voices speaking to the applicant. Whilst he was consistent in asserting that he believed that the deceased and his brother were conducting an affair （transcript 270A-C）， he resiled from elements of the explanations he had given in his records of interview as being the basis for that suspicion. In cross-examination， he accepted that he had not searched his brother’s bunk and found the bedding to have a strong smell of sweat nor had he found nearby cigarette butts of a brand smoked by the deceased （transcript 306B-C； 307F-H）。 He denied the assertion that he had made in his first record of interview that he had become “very angry”。 Rather， he said that he felt unhappy， not angry （transcript 307M-P）。 Importantly， he testified that his suspicion that the deceased was having an affair with his older brother was not the reason or the cause of his chopping the deceased （transcript 278S-T； 284H-N and 298F-P）。
36. It is clear that， whatever the applicant‘s reasons for his denial in testimony of his earlier account of the circumstances of the killing， his testimony raised a defence that was logically inconsistent with his earlier account. His testimony of chopping the apparition of a pig’s head at the instigation of “internal” voices was at odds with his out-of-court account of chopping the deceased because he was angry and had lost control because of his suspicions of her affair with his brother.
The threshold requirement
37. There is no dispute that in a criminal trial a judge is under a duty to place before the jury all possible alternatives which are open to them on the evidence. [See Ho Hui Shing at paragraph 12.] However， an alternative is to be left to the jury only if there is evidence on which a reasonable jury might return a verdict on that alternative. The threshold requirement is low， namely “…… evidence on which a jury could reasonably come to a particular conclusion”。 [See the judgment of Lord Clyde in the Privy Council in Von Stark v The Queen  1 WLR 1270 at 1276F-G， cited with approval by Chan PJ in Hui Ho Shing at paragraph 14.] Chan PJ went on to note of the threshold requirement （paragraph 15） ：
“…… the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it； in other words， an alternative verdict should not be put to the jury if there is no evidential basis on which a reasonable jury could have come to that alternative verdict.”
38. Clearly， the weight that the jury might attach to the assertions made to the two ambulancemen and in the first and second records of interview of the causal link between his killing of the deceased， his suspicion and its basis of an affair between the deceased and his older brother， would be subject to a consideration of his denial in evidence of some of the bases for the suspicion， namely in respect of his finding cigarette butts and sweaty bedding， and of any connection between the suspicion and his killing the deceased. On the other hand， it was even the prosecution case that he killed the deceased having lost control in his anger that arose from his suspicion of an affair by her with his older brother， albeit absent considerations of provocation. Further， it was their case that evidence of internal voices and the metamorphosis of the deceased‘s head into that of a pig was a subsequent fabrication.
39. In Von Stark， the Privy Council determined to be unsound in law the determination of the Court of Appeal of Jamaica that the trial judge was correct in holding that， given that the defendant had presented a defence which was inconsistent with his caution statement， the judge “… was not obliged to leave the exculpatory part of his caution statement as an issue to be determined by the jury.” （page 1273H-1274A）。 Of that， Lord Clyde said （page 1276B-D） ：
“…… the principle， if it was correct would operate to exclude from the consideration of the jury one of two inconsistent lines of defence for each of which there was evidence in support， such as an alibi and a plea of self-defence. That cannot be correct. The principle penalises a defendant who departs in his evidence from an account and explanation which he had earlier given in a way which seems to their Lordships to be contrary to the achieving of a just result… the issues in a criminal trial fall to be identified in light of the whole evidence led before the jury. An issue， such as a line of defence， may well be raised by the admission of a mixed statement. Nor is it easy to understand how an exculpatory part of a statement can be excluded and still retain significance sufficient to emphasise the necessity for the prosecution to prove the essential ingredients in its case which the exculpatory element sought to qualify.”
40. Accordingly， a rejection by the jury of the applicant‘s new position taken in testimony， which was materially inconsistent with his earlier out-of-court assertions， still left the evidence of his initial account available for the consideration of the jury， in particular his earlier accounts to the ambulancemen and in his records of interview， of not only his suspicions of an affair between the deceased and his brother but also his response. （See the judgment of this court in HKSAR v Huang Xiang Rong  1 HKLRD 750 at 773-5， paragraphs 62-7.）
41. In the result， we are satisfied that the judge ought not to have restricted the jury‘s consideration of the evidence relevant to the issue of provocation only to the issue of whether or not he was chopped by the deceased during a lull in his attack on her， during which he said he was seeking help. The “threshold” test was satisfied by the account that he gave， immediately to the ambulancemen together with his subsequent detailed account in two records of interview， that he had killed the deceased because of his suspicions of infidelity with his older brother. Notwithstanding， the limited basis on which counsel for the applicant had invited him to leave the issue of provocation， we are satisfied that it was the judge’s duty to leave it on the broader basis that encompassed the issue of his suspicion of， and the basis for， the infidelity of the deceased and his reaction in response.
42. Accordingly， in our judgment the judge‘s direction to the jury that the issue of provocation arose only in respect of the evidence of the chopping of the applicant’s neck was a mis-direction and his failure to direct the jury in respect of the relevance of the evidence of the applicant‘s suspicion of infidelity and his response was a material non-direction.
43. Counsel for the applicant， Ms Polly Wan， invited the court to apply the proviso， in the event that the court was satisfied that the judge had erred in his directions to the jury as to the ambit of evidence relevant to the issue of provocation. However， given our determination of the misdirection and material non-direction to the jury in respect of the evidence relevant to the issue of provocation we are unable to say that the only reasonable and proper verdict would be one of guilty. Accordingly， it is not appropriate to apply the proviso.
44. In the result， for the reasons set out above， we allow the application for leave to appeal against conviction and， treating the hearing of the application as the hearing of the appeal， we quash the applicant‘s conviction. We are satisfied that it is appropriate， and we so order， that the appellant be retried on a fresh indictment for the murder of Ms Lau Shuk Fan and that the case be listed for hearing as soon as practicable.
Justice of Appeal （M.J HARTMANN）
JUSTICE OF APPEAL （MICHAEL LUNN）
JUDGE OF THE COURT OF FIRST INSTANCE
Miss Polly Wan， SADPP of the Department of Justice， for the Respondent
Mr Giles Surman， instructed by Messrs C. Yu & Co.， assigned by the Director of Legal Aid， for the Applicant