WONG SIU MING v. R.

IN THE COURT OF APPEAL

1993, No. 384
(Criminal)

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. Wong Siu Ming was convicted of murder after trial before Duffy J. and a jury and sentenced to life imprisonment. He now seeks leave to appeal against that conviction. At the conclusion of the hearing we refused leave, dismissed the application and stated that we would give our reasons later. This we now do.

3. The original indictment contained two counts. The first: murder. The particulars being that he, on 1st August 1992, murdered Cheung Chau Ying. The second count alleged an attempt to obtain property by deception. The particulars related to 25th and 26th August 1992 when he attempted to dishonestly obtain from one Wong Wing Tong, of the National Mutual Insurance, money with the intention of permanently depriving Wong Wing Tong thereof by deception. The deception was falsely representing that Cheung Chau Ying was being held in Macau for non-payment of a gambling debt and would be released upon payment of the money. The applicant was also convicted of the second count and sentenced to imprisonment for one year. There is no application in respect of that count.

4. Madam Cheung was an insurance sales woman. She was attractive. She was last seen by her family on 1st August. They have never seen her again nor has her body been discovered. The evidence as to what had happened to the unfortunate lady came mainly from cautioned statements made by the applicant though there is supportive evidence in relation to them to which we shall refer. The applicant called one witness, a Madam Ko, who gave evidence relating to the time the applicant had spent with the police in a room in a police station. She said it was about ten minutes; the police said it was for one minute. This related generally to the applicant's cautioned statements, and indeed in the video reconstruction which the jury saw, and was intended to cast doubt upon the truth of the contents of the statements.

5. The first statement was made on 3rd September 1992 at 2:20 p.m. in Cheung Sha Wan Police Station. This interview started off with matters relating to the second count in the indictment. When informed of the purpose of the inquiry and cautioned the applicant replied:

"I understand what you have said, that was I who made the phone call to National Mutual (Insurance Company), I wished to make money for expenses."

In the course of further questions he explained his phrase "I wish to make money for expenses." as meaning:

"I understand that CHEUNG Chau-ying hadn't gone back to work for a long time, therefore, I intended to take the chance to deceive the people of National Mutual (Insurance Company) into giving me money."

6. A question later he was asked:

"Then, how did you know that CHEUNG Chau-ying hadn't gone back to work for a long time?"

There was no immediate answer to this question. It was repeated and there was still no answer. He was then asked:

"Then, how did you come to know CHEUNG Chau-ying?"

7. The applicant replied that she asked him to take out insurance from her and that was how he came to know her.

8. The applicant drove a lorry. On the basis of his statements it emerged that he was approached by Madam Cheung while he was waiting at a container terminal. It was agreed between them that there would be a further discussion of the matter. That took place on 1st August in the evening where they met in the car park below what the applicant described as "my company" which was situated at Wing Yip Street in Kwai Chung. He was in his lorry. Madam Cheung and the applicant were unable to reach agreement about the insurance.

9. The applicant was then asked at what time did Cheung Chau Ying leave the area to which question he made reply but lowered his head. He was asked did he know where she was going to. Again, he lowered his head and did not reply. The question was repeated, remaining without answer. He was then asked the following questions by the investigator:

"According to the pawning records of the Police, you did,, on the 2nd day of August this year, that is the next day after you had seen Cheung Chau-ying, at Tak Fat Pawn Shop, pawn some gold ornaments, whose gold ornaments were those?"

This question though repeated failed to receive an answer. The applicant was recorded as using both his hands to support his head and to sigh. He closed his eyes and pondered. Then he suddenly said:

"I hit her to death by mistake. I did not intend to hit her to death!"

10. The applicant was then cautioned again and said repeatedly:

"I had no intention. I really had no intention!"

He then went on to give an account of that which had happened. He had made sexual advances to Madam Cheung to which she objected. The applicant said that she picked up a hook from the vehicle and hit the applicant on the head. He tried to snatch the hook from her. She kept hitting him. He continued:

"I then took up the pipe offhandedly and hit her in return. I didn't know how many times I have struck her. I noticed that she bled profusely, and was motionless. I thought that she was dead. I then conveyed her to Tsing Yi and pushed her down to the sea."

11. The pipe to which the applicant referred was a heavy socket wrench used to take off the nuts when changing the wheel of a lorry.

12. Subsequently, the applicant admitted that, when he was cleaning the blood stains from his vehicle, he found a torn gold necklace which he thought belonged to Madam Cheung. He took it for pawning and received one thousand and eight hundred dollars. It was a proven fact that the necklace was pawned by the applicant and that it belonged to Madam Cheung. It had blood on it when recovered from the pawnshop.

13. The attempt at blackmail, or obtaining money by deception, from National Mutual stemmed from his having Madam Cheung's name card. He arranged with Madam Ko - the witness called in his defence - to provide him with her bank account number which was the number the telephone caller gave to Mr. Wong of National Mutual together with instructions that the money be paid into that account.

14. At a later stage in the investigation, the applicant, out of a total of twelve photographs, indicated one as being that of Madam Cheung - which it was.

15. The judge, quite properly, left the jury both self-defence and provocation to the jury beginning his directions by saying:

"If you accept that the defendant's account in his statement of how he caused Madam Cheung's death is his account and a true account, then consider my directions on self defence and provocation to decide whether to convict or acquit him altogether of murder or whether to convict him of manslaughter."

The reference to "is his account and a true account" stems from the nature of the cross-examination at trial which was to suggest that the applicant had been assaulted and that the contents of the statements was a fabrication. It was submitted on his behalf that if the jury were not to accept that the police evidence as to timing - that is Madam Ko's ten minutes as opposed to the investigator's one minute - then the jury could not trust any of the police evidence in relation to their dealings with the applicant. The trial judge went on:

" Your task is to decide if these statements are to be relied upon. Your task is to decide if these statements are true. If you think there were any improprieties on the part of the police or if you think the police beat the defendant into submission or think that possibly is true, then obviously that would or might lead you to doubt the reliability of these statements.

Of course if you think that the statements are the product of police minds and did not come from the defendant, that these are not admissions made by him at all, but police concoctions, then you would not rely upon them - or even if you think that is possibly true."

16. The trial judge indicated that what he had said in relation to statements also covered the matter of the video reconstruction.

17. The applicant gave no evidence at trial.

18. Although it does not appear in the papers before us, it is agreed by both Mr. Mackay, who appeared for the applicant both here and below, and Mr. Saw, who appeared for the Crown in this court, that the trial judge was informed that the defendant had no previous convictions. This leads to the sole ground advanced on his behalf in this court by Mr. Mackay. That reads:

"The learned trial judge failed to direct the jury to have regard to the defendant's good character when considering the credibility of the exculpatory answers given by him to the police under the rule in R. v. VYE & OTHERS [1993] 1 WLR 471."

19. We are aware that from a combination of R. v. Berrada (Note) (1989) 91 Cr.App.R. 131 and Vye that a judge, where a defendant is of good character, should indicate to the jury the two respects in which good character may be relevant namely: credibility and propensity. But his directions may be qualified based on the facts of an individual case.

20. Here, the judge was in a dilemma. The Crown relied on the cautioned statements, supported as they were by the necklace and phone call evidence. They relied on the heaviness of the socket wrench to indicate an intention at the very least to cause really serious bodily harm to Madam Cheung. They relied on the lack of injury, other than one minor injury to the skull, on the person of the applicant. But the applicant rode two horses, one, to use the exculpatory portions of his interviews to raise provocation and self-defence; second, to suggest that the jury could not rely on any portion of those cautioned statements because of misbehaviour by the police. And it must be borne in mind that the applicant gave no evidence in support of the contents of his statements before the jury. In those circumstances upon which aspect was the judge to place a direction on character and/or propensity? It is at least possible that, had the full direction been given in relation to the applicant's good character, it could well have worked against him. In relation to which was the jury to consider it? In relation to the "defences", for want of a better word, raised in the cautioned statement or in the suggestion, unsupported by evidence, that there was no truth in any portion of those statements?

21. In our judgment, neither Berrada nor Vye - nor in this jurisdiction R. v. Chan Wu Nam cr. 274 of 1992 (unreported); R. v. Lai Hon Man cr. 421 of 1992 (unreported) nor R. v. Lee Wai King cr. 361 of 1991 - erected an immutable rule that the double direction on character and propensity must always be given. This whether a defendant gives evidence or not. Both the nature of the direction and the trial judge's duty to give it must be qualified by the circumstances of each individual case. Trial judges must be left, and should be left, with a discretion. That is not to say that in clear cases where character is part of the defence case that the dual direction should be avoided. Here, however, in our judgment, the trial judge was entitled to take the course he did and to make no reference to character. We do not think this conviction to be in any way either unsafe or unsatisfactory.