HKSAR v. ZENG LIANG XIN

IN THE COURT OF FINAL APPEAL

HONG KONG

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Between:

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D E T E R M I N A T I O N

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Chief Justice Li :

1. This is the determination of the Appeal Committee upon an application for leave to appeal brought under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 ("the Ordinance").

The trial and the Court of Appeal

2. On 4 September 1996 the applicant was convicted after trial before V Bokhary J and a jury of murder and was sentenced to imprisonment for life. On 18 July 1997, the Court of Appeal (Chan Chief Judge, Liu JA and Keith J), after granting him leave to appeal against conviction, dismissed his appeal. On 12 August 1997, the Court of Appeal (Liu JA, Saied J and Keith J) refused his application for an order certifying that there is involved in the decision of the Court of Appeal a point of law of great and general importance and alternatively that a substantial and grave injustice has been done.

The application to the Court

3. By his summons and motion both filed on 14 August 1997, the applicant applied to this Court (i) for an order certifying that there is involved in the decision of the Court of Appeal a point of law of great and general importance or that a substantial and grave injustice has been done and (ii) for leave to appeal. The point of law was set out in these terms :

"Is it necessary for the trial Judge, when directing the jury on the issue of provocation, to refer them to the entire factual situation, including the characteristics of the accused, his history and the circumstances in which he was placed at the material time, which may bear on or affect the gravity of the provocation, where the accused has not given evidence or, if he testifies, has not given evidence to the effect that he was provoked to kill or inflict really serious bodily harm to the victim ?"

The grounds of his application are set out in his motion. They contend that the judge's direction on provocation was inadequate in that she did not deal with the evidence said to be relevant to the gravity of the provocation.

The background to the issue of provocation

4. At the trial, the applicant accepted that on 30 October 1995 the deceased Madam Wong Miu-kuen, known as Yee Tse, died at his hands and that he had subsequently dismembered her body and had disposed of her remains. What was in dispute were the circumstances in which she had died.

5. The applicant and Madam Wong worked together in a restaurant in Tai Po. The applicant is in his early 30's. His wife and two children are in the Mainland. He came to Hong Kong in 1993 and was due to return to the Mainland on 3 November 1995. He had finished working at the restaurant on 28 October. His evidence was that on the afternoon of 30 October he met Madam Wong, with whom he had become friendly, for a snack. She offered to help him complete his packing. They went back to his home that afternoon. His evidence was that while they were there she made it clear that she wanted to sleep with him. He claimed that she took off some of her clothes and sat on his lap.

6. His evidence in the witness box as to what happened then was summarised by the judge in her summing-up as follows:

"The victim forced herself upon him. He pushed her away. She bumped her head against the metal edge of the bunk-bed and became unconscious. He tried to revive her. She was still breathing, but remained unconscious. So he waited - did not seek help for her but just waited. After waiting for about 30 to 40 minutes, he again tried to revive her. But this time he saw blood around her head and found that she had gone stiff and cold and was no longer breathing. Afraid that he would be blamed or punished for her death, he chopped her body into pieces and disposed of the pieces. As he was about to chop her body into pieces, he saw her bracelet, necklace and ring. Later he decided to keep them. On the following day, he found $3,400 in her handbag and he decided to keep that too."

Accordingly, the applicant's case was that Madam Wong's death was an accident. He had had no intention of harming her at all. He had done no more than push her away. When he decided to dismember her body it was plain that she had already died.

7. The applicant had given a number of interviews to the Police. After a trial within the trial, the judge ruled that the records of the interviews were admissible. The second interview is an important one for present purposes. After the caution, and his request to the interviewing officer to write down for him what he said, the applicant is recorded to have said:

"I did not kill her on purpose. She took off all the clothes, held me in her arms, saying to go to bed with me to sleep. If I refused, then sued [sic] me for raping her. I was angry, so I took a chopper and chopped her to death."

This is a crucial passage and we shall refer to it as "the crucial passage".

8. Then the interviewing officer told the applicant that he had some questions to ask him and reminded him of the caution and the applicant said he was willing to answer and he wished the interviewing officer to write for him. The record of interview then recorded the following questions and answers:

"Q. Just now you said did not kill her on purpose. Can you say more clearly ?

A. On that day, Yee Tse phoned to the quarters to look for me, making an appointment with me to go to wait at the McDonald's Restaurant downstairs of New Best Restaurant, saying to invite me to tea. Around 3 pm I arrived at the restaurant. Having met her, we went in and we had set meal. After having food, went back to the quarters by taxi. The time then was about 4 to 5 o'clock. She helped to pack the clothes and luggage because I would go back to Mainland two days later. After packing the things, we sat on the bed and chatted. While chatting, she suddenly held me in her arms, saying she liked me very much, and further said if I would be good with her, I need not repay the 3,000 dollars which I had previously borrowed from her. She then took off all the clothes and again held me in her arms. I pushed her away. However, she said loudly that if I did not sleep with her, she would tell other people that I raped her. While saying so, she held me in her arms. I said I have already had a wife and children and could not do that. Thus I pushed her away with great force. It happened that her head bumped against the metal bar of the bunk beds; she fainted and fell onto the floor. Seeing that she did not move, I was very frightened at that time. Sitting there, I waited for her to wake up. I sat there for almost an hour and saw that she did not wake up. I was thinking that if she woke up, she would accuse me of having raped her. So I took a chopper and chopped her at the neck, chopping her to death.

Q. What is the full name of the Yee Tse you mentioned ?

A. It is 'WONG Miu-kuen'.

Q. When was it when you said that day ?

A. It was the 30th day of last month.

Q. After you had chopped Yee Tse to death, what did you do ?

A. The time then was about 7 pm. I chopped her neck with a chopper. Seeing that she had no breathing, I cut her head with the chopper using great force, then cut her arms, and finally cut her legs."

9. The contents of the records of the later interviews were consistent with what the applicant said at the 2nd interview and they do not affect the matter, as far as the present application is concerned.

The issue of provocation at the trial

10. At the trial, the defence of provocation was not relied on by defence counsel Mr Mullick. That was as the Court of Appeal remarked understandable. It was likely to undermine the applicant's case that Madam Wong's death was accidental. The trial judge however decided to leave the issue of provocation to the jury which the jury by its verdict plainly rejected. In the Court of Appeal, it was common ground that the trial judge was right to leave that issue to the jury.

11. As was made clear by Mr Mullick in his submissions to us, the only material which could justify leaving the issue of provocation to the jury was the crucial passage and nothing else. Mr Bruce SC, in his submissions to us, agreed that this was the only material.

12. The judge directed the jury in the following terms:

" ... provocation. You have seen ... a record of interview in which the accused is recorded as saying: that the victim had threatened him with a false accusation of rape if he refused to sleep with her; and that he became angry, took a chopper and chopped her to death.

In the witness box, the accused denied that was what happened. Nevertheless, since there is some evidence to the effect that he killed the victim because she made him angry, I must direct you on the question of provocation."

13. It will be observed that in the witness box he did not say that she threatened him with a false accusation of rape if he refused to sleep with her, and that he chopped her because he was angry as a result of her threat.

The issue of provocation in the Court of Appeal

14. The debate in that Court turned on whether the judge's direction on provocation was adequate; whether she should have referred to evidence of (i) his personal history and (ii) the circumstances in which he was placed which the applicant contended related to the gravity of the provocation. As to (i), he had come to Hong Kong to work to support his family and he had worked hard to remit a substantial portion of his savings back to the Mainland. As to (ii), he had completed his contract of service with the restaurant, he was about to leave Hong Kong but his plans to return to the Mainland three days later would have been thwarted if Madam Wong had carried out her threat of falsely accusing him of rape.

Section 4 of the Homicide Ordinance

15. Section 4 of the Homicide Ordinance provides:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

16. The principles for the application of this provision have been analysed in various authorities, including well-known ones in the House of Lords and the Privy Council: R v Camplin [1978] AC 705, R v Morhall [1996] 1 AC 90, Luc Thiet Thuan v R [1996] 3 WLR 45 and R v Acott [1997] 1 WLR 306. These authorities provide useful guidance to trial judges on the principles to be applied in deciding whether the jury should be directed on provocation and, if so, how they should be directed.

The threshold question

17. But on any consideration of provocation, the threshold question must be whether there is evidence on which the jury could find that the person charged was in fact provoked to lose his self-control. That was a question which the judge in the present case had to decide. If there is no such evidence, the judge ought not to leave the issue to the jury. The recent decision of the House of Lords in R v Acott illustrates this proposition very clearly.

The answer to the threshold question

18. Mr Mullick submitted that on the basis of the crucial passage, which is the only material relied on, the answer should be in the affirmative. The applicant's contention as formulated in his summons and motion is that the judge should have dealt with evidence said to be relevant to the gravity of the provocation, namely "the entire factual situation" including the following facts which were said to be capable of raising the inference that the applicant did fear that if the threat made by Madam Wong were to be pursued he would be prevented from returning to his family; that his contract of employment had expired; that he had made all his arrangements preparatory to leaving Hong Kong; that an allegation of such a serious offence as rape would have inevitably caused it to be investigated by the authorities; that the applicant was a family man, whose family resided in the Mainland.

19. Mr Bruce SC says that the judge was right in leaving the issue to the jury. He accepts that the crucial passage was the only material. His position is that there was "just" a case for the jury.

20. So, as was the case in the Court of Appeal, it was common ground before us that the judge rightly left the issue of provocation to the jury. But both counsel accepted that we are not bound by this and that if the correct answer to the threshold question should be no, then the application for leave to appeal on either the "point of law" limb or "substantial and grave injustice" limb could not get off the ground.

21. For the purposes of this application, we will assume that the crucial passage though contained in an extra-judicial statement is capable of amounting to "evidence" for the purposes of section 4 of the Homicide Ordinance.

22. In our judgment, it is not material capable of supporting a finding that the applicant was provoked by things done and said by Madam Wong to lose his self-control. It must be read in the context of the whole interview, as both Mr Mullick and Mr Bruce accept. When so read, it is clear to us that the passage is only a truncated summary, at the beginning of that Police interview, of the applicant's story which he then proceeded to tell in that interview in the passages we have set out. It is plain from that story that he was not provoked into losing self-control. On that story, his response to her initial sexual advance was to push her away. Then she made the threat:

"However, she said loudly that if I did not sleep with her, she would tell other people that I raped her. While saying so, she held me in her arms."

His response to that was:

"I said I have already had a wife and children and could not do that. Thus I pushed her away with great force."

23. It happened that her head bumped against the metal bar of the bunk beds and she lost consciousness.

24. Pausing there, it is plain that, on the applicant's story, what Madam Wong did and said led the applicant to push her away "with great force". It did not lead him to lose self-control.

25. Then his story proceeded. Seeing she did not move, he was frightened. He sat for almost an hour waiting for her to wake up and saw that she did not. His story then continued:

"I was thinking that if she woke up, she would accuse me of having raped her. So I took a chopper and chopped her at the neck, chopping her to death."

26. It is plain that, on the applicant's story as told to the Police, he chopped her not because he lost self-control as a result of what she did and said. On the contrary, on his story, he did not lose self-control. He sat there for almost an hour whilst she was unconscious. He thought that if she woke up she would make the false accusation of rape. So, having considered the matter, he decided to chop her. His story showed deliberation on his part before he chopped her, the opposite to loss of self-control.

27. So, our answer to the threshold question is plainly no and the application for leave to appeal must fail.

The Court of Appeal decision on the provocation issue

28. The Court of Appeal gave a lengthy judgment in this case. On the issue of provocation, on the basis of the common ground that the issue was properly left to the jury, they proceeded to consider the adequacy of the direction on provocation and concluded that it was adequate. We have decided on the threshold question that the issue should not have been left to the jury. In such circumstances, the Court of Appeal's judgment, on the issue of provocation which proceeded on what we have held to be erroneous common ground, would best be left to one side and should not be treated as providing any assistance on this matter.

Procedure

29. Mr Cross for the respondent raised two procedural matters. We have heard arguments on them and will now deal with them.

The "substantial and grave injustice" limb

30. Section 32 of the Ordinance as amended provides:

"Section 32 Leave to appeal

(1) No appeal shall be admitted unless leave to appeal has been granted by the Court.

(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.

(3) Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.

(4) The Court may when granting leave under subsection (1) impose a timetable on any party for the prosecution of the appeal and may either on the application of a party or of its own motion vary that timetable."

31. It is submitted by Mr Cross that section 32(2) should be construed to read:

"32(2) Leave to appeal shall not be granted unless [1] it is certified by the Court of Appeal ... that a point of great and general importance is involved in the decision, or [2] it is shown that substantial and grave injustice has been done."

32. In Mui Po Chu v HKSAR FAMC No 2 of 1997, 11 September 1997 (unreported), the Appeal Committee in its determination expressed the view (albeit not a concluded one) that this argument appears to be sound.

33. We can now express a concluded view that this is the correct construction of the provision on its ordinary meaning. The position is therefore that certification by the lower court only relates to the "point of law" limb. Where an applicant wishes to rely on the "substantial and grave injustice" limb, there is no question of certification by the lower court and the application for leave must be addressed to the Court of Final Appeal itself with the Appeal Committee exercising the powers of the Court in this regard under section 18. If the construction were that certification applies to both limbs the words "it is shown" would have been otiose. In our view, that cannot be right.

34. It may assist if we set out the position resulting from this construction:

(1) Where an applicant relies on only the "point of law" limb, he should apply to the lower court for the certificate. If granted by the lower court, he should then apply to the Court of Final Appeal for leave. If declined by the lower court, he then applies to the Court of Final Appeal for the certificate and for leave.

(2) Where an applicant relies on only the "substantial and grave injustice" limb, he must apply straight to the Court of Final Appeal for leave. The application is not one for any certificate.

(3) Where an applicant wishes to rely on both limbs:

(a) He should apply to the lower court for the certificate for the "point of law" limb.

(b) If granted, he should then apply to the Court of Final Appeal for leave (i) on the basis of the certificate and (ii) raising the "substantial and grave injustice" limb. The Appeal Committee will then decide whether to grant leave and, if so, whether on both limbs or one of them.

(c) If the lower court refuses to grant the certificate, then the applicant should apply to the Court of Final Appeal (i) for a certificate for the "point of law" limb and (ii) for leave on the basis of firstly the certificate (if granted) and secondly, the "substantial and grave injustice" limb. The Court can then decide on whether to grant leave and, if leave is granted, whether on both limbs or one of them.

Criteria for leave to appeal

35. Mr Cross invited us to give guidance on the criteria for the grant of leave by the Court on both limbs and he cites a number of English authorities to assist us.

36. The two limbs are set out in the statute. We consider that we should not lay down general criteria for dealing with applications for leave, at least at this early stage of the Court's history.

37. However, we would like to make two observations on the "substantial and grave injustice" limb. First, it cannot be the role of the Court to function as a second Court of Appeal. Secondly, in our view, this limb imposes a high hurdle and we believe instances would be rare where this limb for the grant of leave would be satisfied, bearing in mind that the decision of the lower court is already a decision on appeal. But there could of course be exceptional cases where leave is justified on this limb.

The Court of Appeal order declining a certificate

38. In this case, the Court of Appeal declined to certify that a point of law of great and general importance is involved in its decision. But its order did not set out the "point of law" said to be involved. In our view, this should be done either in the recital to the order or the substantive part of the order.

Order

39. Accordingly, we refuse the application for a certificate and also for leave to appeal.

Representation: