Appeal Dismissed in the Quarry Bay Shooting Case
The applicant who killed two and wounded two other family members in Quarry Bay Park in 2018 applied for leave to appeal against conviction and sentence.
Her two grounds of appeal against conviction were that (1) the legal burden on her to prove diminished responsibility was unfair and infringed her right to a fair trial and the presumption of innocence, and that it should be read down to an evidential burden; and (2) the judge failed to give a full and proper lies direction.
Giving the following reasons in a judgment of 19 May 2023, the CA found no merit in the applicant’s grounds of appeal and dismissed her appeal: CACC 153/2021; [2023] CA 408.
For the full text of the judgment, please visit here.
Ground 1: Legal burden on accused to prove diminished responsibility
The CA held that the legal burden imposed by section 3(2) of the Homicide Ordinance does not violate the presumption of innocence under article 11(1) of the Bill of Rights. Local and overseas authorities have thoroughly analysed the issue and have all firmly concluded that a legal burden is justified upon the defence of diminished responsibility.
The reverse onus does not require the accused to disprove an element of the offence but to establish an exception or an excuse. It has no bearing on the requirement that the prosecution must prove all elements of the offence. In other words, the defence of diminished responsibility does not arise until the jury is certain that the accused committed an unlawful killing with the requisite intent. Hence, there is no infringement of the presumption of innocence.
The CA went further to say that even if the legal burden does infringe the presumption of innocence, it is in their view proportionate and justifiable.
Legal burden vs evidential burden
A legal burden requires the accused to prove on a balance of probabilities an ultimate fact which is necessary to the determination of his guilt or innocence.
An evidential burden does not require the accused to establish anything as a matter of proof and arises where an accused wishes to put in issue some matter that is potentially exculpatory and there is sufficiently substantial evidence to support it, raising a reasonable doubt as to the accused’s guilt.
Ground 2: Failure to give a full lies direction
A lies direction is necessary where there is a risk that the jury may regard lies told by an accused as probative of his guilt.
This direction, however, would be inappropriate and the usual direction on the burden and standard of proof would be sufficient in a case where it is alleged the accused has lied in his evidence when he testifies in the witness box and is not worthy of belief. This also applies where an allegation is made that the accused has lied to somebody outside court as long as it is not alleged by the prosecution “to have been told by an accused to establish or assist its case or to strengthen an inference of guilt or where there is a danger that the jury may engage in an impermissible process of reasoning to the disadvantage of the accused”.
The CA held that a full lies direction was not warranted in the circumstances of the case. The applicant’s inconsistent accounts to the psychiatrists were an issue that went to her mental condition and were not relied by the prosecution to prove her guilt of the charges.
Appeal against sentence
In addition to her mandatory life sentence passed on her for the two murder charges, the applicant’s received a total term of 18-years’ imprisonment for her two counts of shooting with intent.
Given the aggravating factors in this case (planning, premeditation, discharging a firearm in a public place, possession of substantial quantity of ammunition, executive-style killing etc), the CA found no error in the judge’s sentencing approach.