HKSAR v Kissel (6 October 2008)

The appellant was convicted on 1 September 2005 and sentenced to life imprisonment for murdering her husband, a Merrill Lynch banker in Hong Kong (and previously with Goldman Sach) and appealed against the conviction. The appeal was dismissed by the Court of Appeal (Hon Stuart-Moore VP, Stock JA and Wright J).

Background

The killing took place on 2 November 2003 at the family home at Parkview, 88 Tai Tam Reservoir Road, a luxury apartment in Hong Kong. It was the prosecution case that the deceased was probably incapacitated after consuming a milkshake prepared by the appellant which contained the drugs Rohypnol, Stilnox, Amitriptyline and Lorivan. The appellant was then killed by blows made to his head which fractured his skull.

The killing took place while their children were at the playground downstairs with their domestic helpers. When they returned to the apartment later that afternoon, they were told not to make a loud noise as 'daddy was sleeping'. The appellant began the next days by sending an email to a friend postponing an appointment, made an internet search for a shopping centre and for stores selling luggage before going out and bought a list of things. She also told the children and domestic helpers that the deceased had left the apartment to stay at a hotel and that there was no need to clean the master bedroom. The body was apparently rolled up in a carpet and placed behind a couch and later moved, by (unsuspecting) staff of the apartment management company, to a storeroom rented by the appellant. One of the staff mentioned to the appellant that there was a smell like 'salted fish' coming from the carpet but the appellant gave no reaction and simply closed the door. The body was not found until 6 November 2003.

It also came out in the evidence that the appellant was having a sexual relationship and, probably obsessed with, an electrical technician who was employed to do work at deceased's house in Vermont although her motive was never clearly established. Two days after the killing, when asked by a friend whether the appellant needed to cancel an appointment for a breast uplift surgery scheduled for mid November, the appellant replied "No, don't cancel it. I'll be there".

Defence

The defence put forward by the appellant at trial was self-defence (the killing was not in dispute) and the defence of provocation was left by the trial judge (Lunn J) as an issue to be decided by the jury (against the wish of the appellant's counsel in the trial, King SC, who was concerned that the provocation defence would undermine the defence of self-defence).

Grounds of Appeal

Not less than 13 grounds of appeal were put forward on behalf of the appellant mainly attacking the trial judge?fs summing up and directions to the jury. The trial judge was criticised for, inter alia, having "entered the arena as an advocate by the timing and manner in which he commenced his summing up to the jury immediately before the luncheon adjournment on Tuesday, 30 August 2005", which criticism was rejected by the court of appeal. The appellant counsel however made clear that it was not being suggested that the judge was deliberately unfair but rather that "despite his best endeavours, unfairness resulted!"

Timing, Speed and Manner

One of the challenges put forward on behalf of the appellant by her counsel (McCoy SC) was said to be a "unique proposition in Hong Kong", attacked the trial judge for dealing with the defence case "at a speed which was significantly faster in the pace of delivery than that adopted when [the judge] summed up the prosecution case"! Expert evidence was adduced that,

"...relatively complex language had been used throughout the summing up and that with prosecution evidence, this language was delivered at a slower pace and in shorter segments than in those concerned with defence evidence and the bulk of the defence evidence was presented in one lengthy chunk"

And that

"reduced concentration may have resulted in impaired comprehension and ultimately impaired recall of the review of the defence evidence"

Experts called by the appellant also provided report that the typical speaking rate across the whole summing up was 136 words per minute and there was apparently a difference of 15 words a minute in the speaking rate of what was described as the prosecution and defence summaries, respectively! However, when a comparison is made to the normal speech range for "spontaneous monologue" or "reading aloud" the norm appears to be between 150 and 224 words per minute so the delivery of summing up was relatively 'slow'.

Self-defence

Another jury direction made by the trial judge that was critised by the appellant went like this

"A person who is in reality the aggressor, or who injures another as an act of revenge or retaliation, acts unlawfully, for it is not necessary for her to use force at all."

The appellant said that this was a material misdirection because there were circumstances in which self-defence would be available to a person who was the "initial aggressor".

The court of appeal accepted that a person who was in general the assailant was not thereby necessarily excluded from a plea of self-defence (cf. Burns v HM Advocate [1995] SLT 1090; R v Balogun [1999] EWCA Crim 2750; R v Rashford [2005] EWCA Crim 3377) but could not see how the judge could have directed the jury that, the appellant being the initial aggressor, might none the less be acting in self-defence as it was never the case of the appellant that she was the aggressor. The appellant counsel postulated that there was such a possibility:

"However, Mr McCoy postulated one. It went something along the lines that the jury might have found that, having drugged the deceased, the appellant struck him with the ornament but that, insufficiently drugged to render him helpless, he roused himself, went berserk, attacked her with the baseball bat to which, in self-defence, she reacted by striking him the fatal blow or blows."

The court of appeal thought that was "a fanciful scenario".

The appellant also said that the trial judge ought to have directed the jury that they should disregard any blows (there were at least four) struck after the fatal blow. To this, the court of appeal said,

"The direction for which Mr McCoy contended would nonetheless have required the jury to determine whether death occurred after a particular blow and, if so, which. That would have presented an impossible, pointless and academic exercise: impossible, because the evidence did not tell them the answer; pointless, because the action of striking five forceful blows was relevant in assessing the reasonableness of her reaction to his alleged assault; and academic, because it is patently clear from the evidence that each blow in itself was heavily violent and capable of causing death."

Provocation

The appellant challenged the use by the trial judge of the phrase "a reasonable woman" in the following direction:

"Although provocation applies only if the act of the defendant is committed suddenly from a provoking event, that does not require you to ignore past behaviour by the deceased, since an incident which is trivial when examined in isolation may nonetheless be one which might cause a reasonable woman to react explosively in the context of provocation over an extended period."

Because the effect of that was, the appellant said, an incorrectly importation an "objective standard" into the first question i.e. whether the deceased's conduct had provoked the defendant suddenly and temporarily to lose her self-control?

The court of appeal accepted that the use of the phrase "reasonable woman" but disagreed that the jury was mislead to the effect that the test was objective because the trial judge did return to the question and said

"So returning them to that question that I have posed to you and I will just repeated for you - may the deceased's conduct, that is the things he did or things he said or both, have provoked, that is caused, the defendant suddenly and temporarily to lose her self-control?

If you are sure that the answer to that question is "no", then the prosecution will have disproved provocation,..."

Diminished Responsibility

The appellant also relied on e.g. Jimmy Johnson v R [1983] HKLR 344, HKSAR v Coady (No.2) [2000] 3 HKLRD 573 and HKSAR v Tang Kin Kwong CACC488/2002 as authority for the proposition that there was a duty upon a judge to leave any defence to a jury if there was evidence to support that defence even if the defence had not sought to rely on it.

The court of appeal disagreed. Unlike the partial defence of provocation where the onus is on the prosecution to negative the defence (to the usual criminal standard of beyond reasonable doubt), to raise diminished responsibility, the onus is on the appellant to establish (albeit on lower civil standard) the partial defence. The appellant had made a conscious decision not to lead the evidence on the defence and that general duty upon a judge to leave an alternative verdict to a jury arises only where the evidence presents that alternative as an obvious and viable one; where, in other words, there is evidence of a defence that is fit to be left to the jury.

Adoption of Evidence

On the question whether the submissions made by counsel for the appellant at the bail hearing and affidavits presented on her behalf were, for the purpose of the present issue, 'her' statements, both parties relied on the judgement of Bryan James Turner (1975) 61 Cr App R 67 in which it was said:

"Whenever a barrister comes into Court in robes and in the presence of his client tells the judge that he appears for that client, the court is entitled to assume, and always does assume, that he has his client's authority to conduct the case and to say on the client's behalf whatever in his professional discretion he thinks is in his client's interest to say. If the Court could not make this assumption, the administration of justice would become very difficult indeed. The very circumstances provide evidence first, that the barrister has his client's authority to speak for him and secondly, that what the barrister says his client wants him to say. Counsel should never act without instructions, and they seldom do."

Counsel for the appellant suggested that since a bail hearing is not in open court and therefore counsel is not robed, the same principle does not apply! The court of appeal had no difficulty in rejecting that suggestion.