R v Ying Zhang

Fresh expert evidence will not ordinarily be received where it was deliberately withheld at trial after a justified tactical decision, does not afford a defence, and does not cast doubt on the safety of the conviction. The overriding question under Criminal Appeal Act 1968, section 23 is whether admission is necessary or expedient in the interests of justice; an appeal is not an opportunity to re-run a trial with strengthened expert evidence.

For attempted murder, psychiatric evidence that a defendant’s judgment or capacity was impaired does not itself answer the jury question whether the defendant formed an intent to kill. A sentencing court may find financial gain where it was a material, though not exclusive, motive. It must use the correct guideline starting point and express a life-sentence minimum term in years and days.

Following a jury trial at the Central Criminal Court, Dr Ying Zhang was convicted of attempted murder of his estranged wife and possession of a bladed article in a public place. He received a life sentence with a minimum term of 22 years less time on remand, after the judge found him dangerous.

He sought a substantial extension of time to appeal his conviction, permission to adduce psychiatric and neurological evidence, and leave to appeal his sentence. He contended that his trial representatives should have called evidence concerning depression, alleged impairment of intent, and post-traumatic amnesia, and that adverse-inference directions were unfair. He also challenged the dangerousness finding and the categorisation of the attempted murder under the sentencing guideline.

The central issues were whether the proposed evidence could render the conviction unsafe and whether the judge had adopted the correct sentencing starting point.

1. The renewed applications for an extension of time, to adduce fresh evidence, and for leave to appeal against conviction were refused. Leave to appeal sentence was granted only on the amended ground concerning the starting point. The sentence appeal was allowed to that extent.

2. Under section 23 of the Criminal Appeal Act 1968, the statutory factors are subject to the overriding question whether admission of evidence is necessary or expedient in the interests of justice. Applying R v Foy [2020] EWCA Crim 278, an appeal is not a second opportunity to advance a case with different or strengthened expert evidence. The psychiatric evidence had been withheld after a justified tactical decision and did not provide a defence to attempted murder.

3. The proposed psychiatric opinion did not establish that Dr Zhang could not form an intent to kill. At its highest, it concerned impaired rational judgment. Whether he formed the requisite intent was for the jury to determine from the evidence, including his conduct and the history of the relationship. The proposed neurological evidence could at most support his claimed amnesia. It did not provide an answer to the charge, and its absence caused no material unfairness.

4. There was no evidential basis at trial to attribute Dr Zhang’s decision to stop giving evidence to mental ill-health, or to adjourn for a further assessment. He was fit to plead and participate. A suitably adapted direction under section 35 of the Criminal Justice and Public Order Act 1994 was appropriate. The section 34 direction concerning his interview silence was balanced and fair and could not have affected the outcome.

5. The judge was entitled to find that financial gain was a material motive and therefore to place the offence in culpability Category A. That motivation need not have been exclusive. The finding of dangerousness and the choice of life imprisonment rather than an extended determinate sentence were also justified.

6. The judge nevertheless used an incorrect Category A2 starting point of 35 rather than 30 years. After properly weighing aggravating and mitigating features, the notional determinate term was 30 years. The court quashed the sentence on count 1 and substituted life imprisonment under section 285 of the Sentencing Act 2020, with a minimum term of 18 years and 171 days. The concurrent two-year sentence on count 2 remained unchanged.

• Court of Appeal (Criminal Division): Refused the renewed applications concerning conviction and fresh evidence. Allowed the sentence appeal only on the amended starting-point ground, varying the minimum term.

• Central Criminal Court: On 31 January 2023, Dr Zhang was convicted by a jury of attempted murder and possession of a bladed article in a public place. On 11 April 2023, he was sentenced to life imprisonment with a minimum term of 22 years less time on remand.