CACC 108/2004
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO. 108 OF 2004
(On Appeal From High Court Criminal Case No. 176 of 2003)
______________________
BETWEEN
HKSAR Respondent
and
DUONG Vinh Cuong 唐永強 Applicant
______________________
Before : Hon Cheung JA, Hon Yeung JA and Hon Yam J in Court
Date of Hearing : 16 March 2005
Date of Judgment : 4 April 2005
______________________
J U D G M E N T
______________________
Hon Cheung JA (giving judgment of the court) :
Leave to appeal against conviction
1. The applicant was convicted after trial by Gall J sitting with a jury of three offences. The first two were murder and the third one was attempted murder. The victims in the first two charges (victim A and victim B respectively) were girls of tender age. The victims in the third charge were the three children of the applicant who were also of tender age.
Facts
2. The facts of the case are disturbing. The case began on 4 December 2002 when the parents of victim A reported to the police that their daughter had been missing from home since earlier that evening. On 19 December 2002 the parents of victim B also reported to the police that their daughter did not return home after school.
3. The applicant was a married man in his 40’s. He lived with his three children aged 1 to 5 in a house in Yuen Long, New Territories. His wife had left the family. In the evening of 20 December 2002 there was a confrontation between the applicant on the one hand and a team of policemen and firemen on the other hand at the house of the applicant. The applicant threatened the officers not to go into the house. He claimed that he had LP-gas cylinders and he would ignite the gas and kill the children. As the officers broke into the house, there was a sudden explosion and fire. The uniformed officers found that the applicant and his three children suffered severe burns. This is the subject matter of the third charge.
4. After the uniformed officers broke into the house, the body of victim B of the second charge was found in a wardrobe. She was wrapped up in a quilt. By that time she was already dead. The body was examined by a pathologist on 20 December 2002. The time of death was estimated to be half to one day prior to the examination. There were bruises and abrasions on her face, neck and private parts. Semen found in her private part matched the DNA of the applicant. The cause of death of victim B was asphyxia due to smothering.
5. On the next day of the siege i.e. 21 December 2002, the body of victim A of the first charge was found by the police inside a manhole outside the house. Her body was examined by a pathologist. The body was in a state of advanced decomposition. The time of death was estimated to be about one to two weeks prior to the discovery on 21 December 2002. The cause of death was unascertainable due to the decomposition of the body.
6. The applicant was first sent to the North District Hospital on 20 December 2002. His face, upper limbs and lower limbs had burn injuries of a total of 25% of the total body surface area. He was then transferred to the department of surgery of the Prince of Wales Hospital (‘PWH’). Later on, he was discharged to the Burns Unit of PWH for further wound management.
7. While the applicant was in the Burns Unit on 22 December 2002 he told a police officer (who was not a member of the investigation team but was assigned there to guard him) that he had killed to take revenge on his wife. The applicant said he had learned black magic in Thailand, and if he was to kill five persons, all related to him by blood, and then committed suicide, then he would be able to command the five ghosts to take revenge on his wife. He admitted killing the first two victims and raped them so as to create blood relations with them. The other three to be killed would be his three children (‘the first admission’).
8. Following this admission, the police interviewed the applicant in which he repeated the admission and gave details of what he had done. In this interview he admitted that he ignited a fire with LP-gas when he was holding his three children in his house (‘the second admission’).
9. The first and second admissions which were the subject matter of a voir dire by the judge was ruled admissible by the judge and became part of the evidence against the applicant at the trial.
10. Dr. Lui Shing Heung, a consultant psychiatrist with the Siu Lam Psychiatric Centre, gave evidence for the prosecution that the applicant was not suffering from any mental illness.
The applicant’s case
11. The applicant gave evidence at the trial. He said that his wife disserted him and the three children on 1 December 2002 and he was then under emotional distress. He admitted killing the first two victims but denied he had murdered them.
12. In respect of victim A, his case was that he and his children met her in the Yuen Long Plaza. She then followed them to their home. The admitted facts showed that before victim A went missing she told her mother on the telephone that she was to go to the ‘Yes Station’ in Yuen Long Plaza. He said while at his house victim A asked him for the ‘Yes Cards’ belonging to his daughters. When he refused, she threatened to telephone her family that she had been abducted by him. He became anxious and grabbed her neck from behind. When he came round he realized that she was dead. He later put the body into the septic tank outside his house and sealed the edges of the tank with cement.
13. In respect of victim B, the applicant said that he had known her for a few months. She liked to play with his children. On 19 December 2002 he was at home with the children, victim B came up to him. He did not know when she came to his house. She asked him for money to buy something and asked him to take her home. Suddenly victim B said she would be leaving and she would be taking two of the applicant’s children with her. He was very upset that victim B would take away his children. He pulled victim B to his bed and smothered her to death. Later, he realized that he seemed to have raped the corpse. He then put her body in the wardrobe.
14. In respect of the third charge the applicant’s case was that he did not intend to kill his children. It was merely a ploy to have his wife come to the house and talk to him. He said that without consciousness, he turned open the cylinder of gas and used nylon string to round up himself and the three children. He feared the children would tamper with the cylinders. All of a sudden there was a ball of fire on his face. He was not sure if his son had picked up a lighter and caused the ignition. He placed his body in front of the children. He said he realized he could shield the fire from his daughters but not his son. Then the fire was put out and he was subdued by the firemen.
15. In respect of the first admission, he said in the Burns Unit he saw a uniformed police officer standing by his bed. The officer scolded him as a perverted sex maniac. He denied the allegation. Then he recalled what he had said to his sister-in-law, so he told the police officer the same thing, namely, that he killed to take revenge. He said he did not think of killing anyone. It was an answer that had no meaning.
16. As to the second admission he said he was waken up in his sleep. There was a person holding a book and a pile of paper reading. There was never any questions and answer. What was written about the interview was a fabrication by the police.
17. The applicant called a Dr. Chau Lok Yee to give evidence on his mental condition. Dr. Chau said the applicant suffered from mild depressive illness. However, Dr. Chau did not suggest that the mild depressive illness of the applicant would lead to the commission of any offence.
The summing-up
18. The judge gave a comprehensive summing-up of the case to the jury. Apart from the standard directions such as burden and standard of proof, the judge gave detailed directions as to the elements of offence in relation to the three charges. The killing of the first two victims was admitted by the applicant, the issue was on the different types of verdict the jury might return in respect of the murder charge. The judge gave detailed directions on murder, manslaughter by provocation and unlawful act manslaughter. He also gave detailed directions on attempted murder. He gave directions on the mental state of the applicant and that the evidence showed that he was under considerable emotional stress. He related in detail the relevant facts in relation to each charge. He also gave specific directions as to how the jury should consider the admissions made by the applicant.
Grounds of appeal
19. Mr. Kelly who was instructed by the Director of Legal Aid for the applicant, informed the court that he was unable to advance any grounds of appeal on behalf of the applicant.
20. The applicant himself prepared a number of grounds of appeal which were supplemented by oral submissions at the hearing. We will deal with his written grounds first and make our comments on each of these grounds.
The written grounds
21. (1)
Many of the photographs and evidence supplied by the prosecution were not produced in court.
We note that the applicant was represented by counsel at the trial and no request was made by counsel for the photos nor exhibits to be produced.
(2)
He suffered a wrong by the content of the pathologist’s report.
We note that the findings of the post-mortem examination were admitted as agreed facts under section 65C of the Criminal Procedure Ordinance Cap. 221.
(3)
He did not receive a fair trial because the witnesses had ‘cooperated’ in their evidence. They were instigated to give evidence against him.
We note that the applicant did not specify the particulars of his allegations. The judge gave a detailed summary of the evidence of the witnesses and it was for the jury to assess the credibility of the witnesses.
(4)
Many of the witnesses were not called to give evidence.
We note that as the applicant was legally represented at the trial it was for his counsel to decide how the case should be conducted. There was no allegation by the applicant against his counsel on the conduct of the case. According to Mr. Luk, SC, counsel for the respondent, no request was made for any witnesses or exhibits to be tendered at the trial.
(5)
Two LP-gas cylinders were intact and not damaged hence no explosion could possibly occur.
We note that various witnesses had given evidence that an explosion had occurred when the door was broken.
(6)
As can be seen from the photographs there was no sign that the iron door of his house had been broken. He questioned the truthfulness of the evidence of the witnesses who said that they had broken the door.
We note that photographs of the house were produced as exhibits at the trial. It was for the jury to assess the evidence of the witnesses.
(7)
There were many doubts about the voir dire. He did not sign on the written statements. He did not even have the opportunity of looking at the statements. He only received the statements in June 2003.
As we said earlier, the judge had conducted a voir dire of the admissions. Apart from the police officers, a nurse who witnessed the taking of the statement which contained the second admission was also called to give evidence for the prosecution on the condition of the applicant at the time when the statement was taken. At the concluding part of the statement, the police officer stated that ‘as both hands of (the applicant) was injured, (he was) unable to sign even at request. I then asked the witness, male nurse Yeung Tung Piu to sign the record of interview concerned’.
At the trial, the police officers and the nurse also gave evidence. The judge summarized the evidence including the applicant’s response to the jury in detail. He gave the following directions to the jury,
‘The accused’s case is – and when I say it is his case, he is not proving anything, he is placing before you material which he says casts doubt on the evidence for the prosecution, and therefore because of that doubt, you cannot be sure. He says that in respect of the oral testimony of PW10, Constable 2294, (i.e. the guarding officer) that he just made answers at random and that they were not answers of truth and should not be considered as the truth. In respect of the second interview, Exhibit P152, the accused is clear. He said, “I did not make those admissions. They were fabricated by the police. They are an invention and none of it comes from me”.
In deciding whether you can rely upon these admissions, you must decide two issues. Firstly, did the accused actually make those admissions. If you are not sure that he made them, if the prosecution have not proved so that you are sure that in respect of Constable 2944, the accused said those words to him, and if the prosecution have not made you sure, considered separately, that the accused said the words in P152, then you ignore them. And that is really the end of the matter.
If you were not sure that the words were said, the admissions were made by the accused in each case, then you would no longer consider that evidence. If you are sure that he said those words, that he made those admissions, you would face the second question, are you sure that what he said is true. When you decide the second question, you must have regard to all the circumstances in which you find the admissions were or may have been made and consider whether there were or may have been circumstances which might cast doubt upon the reliability of those admissions.
In considering whether the admissions are true, the second issue, you must decide whether they were or may have been made or given as a result of oppressive behaviour by the police or improper conduct or circumstances which were improper. Indeed, if the accused is correct, or maybe correct, when he says that he did not say meaningful words to PW10 or make the statement to PW11 – which is P152 – then you may think it is unsafe to rely on that evidence and the record of interview.
You must assess what weight – there we are back to the word weight – how much value is to be given to the admissions. If, for whatever reason, you are not sure the admissions are true, you disregard them. If, on the other hand, you are sure that the accused made those submissions and they are true, then you may rely upon them.’
We are of the view that the jury was properly directed on how they should approach the admissions.
Oral submission
22. The applicant further said that all the witnesses gave false evidence and they fabricated the medical and post-mortem report. He relied on the following matters :
(1)
The agreed facts showed that when the body of victim B was first discovered in the wardrobe, an ambulanceman estimated that she had already been dead for about five hours. However, according to the pathologist’s finding, the time of death of victim B was estimated to be half to one day prior to the examination.
We do not see how this would support the applicant’s case. The ambulanceman examined the body at 6:50 p.m. on 20 December 2002 while the body was examined by the pathologist at 10:10 p.m. on the same day. There is no conflict in the evidence.
(2)
The applicant said that when the body was first discovered, there was no indication that there was any injury on the body whereas injuries were found in the post-mortem examination.
We note that according to the agreed facts, it was a fireman who discovered the body. Later on the body was examined by an ambulanceman who simply stated that he found the girl had no signs of life. These officers did not deal with the injury of the girl.
(3)
The applicant claimed that he was admitted to the Intensive Care Unit of PWH and it was not possible for the police to take the statement from him in the Intensive Care Unit.
We note that the medical report clearly showed that the applicant was in the Intensive Care Unit for two days and was then discharged to the Burns Unit. The admissions made by the applicant took place in the Burns Unit.
(4)
One of the photographs taken by the police in the house showed two chains. The applicant said the chains were put there by the police to suggest that he was involved with some sado-masochist activities.
Mr. Luk informed us this particular photograph was not produced at the trial. No prejudice was caused to the applicant.
(5)
There were four photographs taken of his burns but they were not taken at the time of the injury but later on after he had received skin transplant. This was to mislead the jury.
We note that there was a statement attached to the bundle of photographs stating that they were taken on 7 January 2003. The jury could not have been misled in anyway.
(6)
The applicant further said the judge had misdirected the jury on two matters:
(i)
He told them to consider his age when they were to decide whether he was suffering from depression. The applicant said age was not a relevant consideration to this question.
The short answer is that the judge did not give such a direction.
(ii)
The judge told the jury that the applicant had turned on the LP-gas the whole night and he did not die. He questioned whether this was possible given the small room he was in and the fact that the windows were all closed.
What the judge said was this :
‘I must remind you in respect of the last of what he said in P152 at page 464, at the bottom: “The night before, I had moved two cylinders of LP-gas up to the room upstairs. At that time, I let some LP-gas out but we did not get suffocated. When my wife did not come back the following day, I lit up the LP-gas with a lighter.” If you were to be sure that that was said by the accused to the police and if you were to sure that it was true, it would be an admission that you could rely upon in answer to the second question of, “Did he light the gas? Am I sure that he lit the gas?” ’
There was no misdirection on the part of the judge.
Conclusion
23. The grounds of appeal submitted by the applicant touched only on peripheral matters of the case. The charges against the applicant were clearly supported by strong evidence. The summing-up by the judge was a comprehensive and balanced one. We are satisfied that the verdict was a proper one. Accordingly we dismiss the application.
(Peter Cheung)
(Wally Yeung)(D. Yam)
Mr. Arthur Luk, SC, Deputy Director of Public Prosecutions and Mr. Edmond Lee, SGC of Department of Justice, for the respondent
Mr. Kelly Shaun Patrick, instructed by Director of Legal Aid, for the applicant