Press Summary (English)

Press Summary (Chinese)

FACC No 9 of 2024

[2025] HKCFA 1

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 9 OF 2024 (CRIMINAL)

(ON APPEAL FROM CACC NO 210 OF 2018)

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J U D G M E N T

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Chief Justice Cheung:

1. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Fok PJ:

3. I agree with the judgment of Mr Justice Lam PJ.

Mr Justice Lam PJ:

A. Background

4. In R v Blastland [1] Lord Bridge of Harwich explained why hearsay evidence which may be potentially probative is excluded in a jury trial:

“The rationale of excluding it as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen or heard and which has not been subject to any test of reliability by cross-examination.”

5. In the present case, the Appeal Committee granted leave to appeal in respect of a question of law certified by the Court of Appeal:

“Are the statements of an accused to a medical practitioner regarding his or her background and state of mind at the time of the offence, and the circumstances of a relevant event or events, hearsay evidence and inadmissible when he or she does not testify at trial and, if so, does this also render inadmissible the expert opinion of the medical practitioner?”

6. Further, the Court of Appeal in its judgment [2] suggested a novel approach in directing a jury on a statement of an accused to a psychiatrist regarding his background and state of mind at the time of the offence [3] . The proposed approach involves the creation of a new exception to the hearsay rule. It is thus necessary to examine it against the existing law and its rationale.

A1. The killing and the defence of diminished responsibility

7. The Appellant was charged with the murder of his wife. During a trip in a taxi on 23 October 2015, when travelling through the Tate’s Cairn Tunnel, he used a belt to strangle her. After exiting the tunnel, the taxi driver stopped the car outside a convenience store and reported the matter to two police officers. When the police officers arrived, the wife was unconscious and the Appellant tried to strangle himself and bit his tongue. The Appellant and his wife were taken to the North District Hospital. She remained in a coma and died 5 days later.

8. There is no dispute that the Appellant killed his wife. This appeal focuses on his partial def