HKSAR v. LAU CHEONG AND ANOTHER

CACC 646/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 646 OF 1998

(ON APPEAL FROM HCCC 54 OF 1998)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 9 December 1998, following a trial in the Court of First Instance before V. Bokhary J and a jury, the Applicants (D1 and D2 respectively at trial) were convicted of murder. They received mandatory life sentences in respect of murder (count 1). D1 received a concurrent sentence of six years' imprisonment for robbery (count 2) to which he pleaded guilty. D2 contested this charge. The jury convicted him and he received a concurrent sentence of nine years' imprisonment. Both Applicants seek leave to appeal against the convictions resulting from the verdicts of the jury.

Prosecution's Case

2. The case presented by the prosecution against the Applicants amounted to an allegation that they had acted together in the murder and robbery of Kei Wai-heung (the victim) at the Tai Po Industrial Estate on 26 July 1997. The prosecution alleged that if the Applicants were not guilty of murder they were, by way of alternative, guilty of manslaughter.

3. In Dl's case, the issue was a narrow one. Having regard to his plea in relation to the robbery, the jury only had to address his intention at the time when, by his own admission, he did an unlawful and dangerous act which caused the victim to die by strangulation. D1 had tied up the victim after robbing him in a particular manner to which we shall later need to return in some detail.

4. The robbery involved a trivial amount of property, namely a watch, a purse and a Hongkong Bank ETC card. It was the 'recent possession' of the ETC card which provided an important first link between D2 and these crimes. This was found after it had fallen out of his underpants at the Queen Elizabeth Hospital on the day after the robbery. Later, blood matching the DNA sample taken from the victim's body was found on the ETC card. Additionally, DNA tests to D2's clothing revealed blood, matching the victim's, on his jeans, shoes, watch and belt and fibre-contact evidence established a link between the trousers of the victim and the T-shirt and jeans worn by D2.

5. D2 had attended hospital for treatment to numerous injuries to his hands. In particular, medical evidence was given that the cuts to his left hand were typical defensive wounds inflicted while the hand had been used to ward off a knife attack.

6. In short, therefore, it was alleged that the evidence revealed a violent encounter between the victim, who must have tried to fight back, and the Applicants, who eventually gained the upper hand, before robbing and tying him up.

Defence Case

7. Dl's plea of guilty to manslaughter was not accepted by the prosecution. D1 testified that he had robbed the victim. However, he encountered resistance because the victim, after he had attempted to rob him by threatening him with two knives, had managed to get hold of one of the knives which he used to defend himself. D1, whilst defending himself from the victim's (lawful) response, then asked D2 to give assistance. Between the two of them, they got the victim to the ground where he was pinned down and punched with fists. D1 testified that when the property was taken by him, D2 "fainted" leaving him alone to tie up the victim. D1 also received injuries to his hands in the struggle. He testified that he had tied the victim because he was afraid he might get away and take revenge.

8. D2 did not testify. His case was put forward in reliance upon the testimony given by D1. One aspect of D1's evidence had been that he, thinking that the ETC card belonged to D2, had placed this inside D2's underpants.

Summing up

9. In a clear and concise summary of the relevant legal principles and the facts, the judge delivered a summing up which heavily leaned towards a manslaughter verdict for D1. In D2's case, the judge firstly addressed the various pieces of circumstantial evidence capable of linking him to the crimes. She then, and with the same emphasis she had placed on manslaughter in Dl's case, directed the jury as to murder and the alternative of manslaughter in D2's case.

Objections to the Court Interpreter

10. Before hearing the grounds of appeal during the proceedings on 21 March 2000, D1 raised objection to the interpreter. He made a similar complaint during the trial (at page 185 of the appeal bundle). This came to nothing in the present proceedings when it was established that not only the Hunan interpreter especially retained for this hearing, but also the Putonghua interpreter who usually works in this court, could be understood by him. In fact, D1 preferred to be given a translation in Putonghua which is what duly happened.

11. However, D2 then also complained that he could not understand proceedings. This has to be set against a background of an application made by Mr Haynes, on D2's behalf, to amend his perfected grounds by adding a further ground of appeal in the following terms:

"Proposed ground 6

6 That the arrangements for interpretation by a Hunan interpreter with a Changsha accent (instead of a Shaoyang dialect speaker) and a Putonghua interpreter rendered the proceedings incomprehensible to the second applicant. In particular the evidence of D1 was incomprehensible and confusing to the court and jury. This is evident from the transcript. The Defence of D2 relied heavily on Dl's evidence. (see p171D, p185-p195, p211-p233). The result was:

(a) The second applicant dared not speak out at the trial because of his social and historical background.

(b) Because of the fact that no Shaoyang dialect speaker was available, he could not exercise a 'free' election when he accepted a Putonghua interpreter. The 2nd applicant has little understanding of Putonghua. His understanding of the proceedings was seriously flawed.

(c) Having observed the problems surrounding the interpretation of Dl's evidence, D2's election as to whether to give evidence himself was not free in any proper sense of the word. These factors constituted a material irregularity in the trial of the second applicant."

12. None of these matters had been raised at trial by D2 and furthermore, no sooner had the Hunan interpreter at court said that he spoke in Shaoyang dialect, Mr Haynes informed the Court that D1 had sent a letter which had apparently accidentally, and certainly confusingly, found its way into his instructions. Mr Haynes then asked for the first paragraph in his proposed additional ground of appeal, which had been mistakenly based upon something written by D1, to be amended by crossing out 'Shaoyang' and replacing this with 'Huaihua' as the dialect D2 could understand. With these difficulties in mind, we asked D2 a number of questions in court through a Putonghua interpreter which he appeared to be able to answer until the time came when he began to indicate, through body language only, that he could not understand what he was being asked.

13. The Court then adjourned for about 25 minutes to allow the Hunan interpreter to speak to D2. When the Court resumed, the interpreter gave sworn evidence that the Huaihua and Shaoyang dialects are different but that there should be some comprehension of both dialects by a speaker of one of them. He said that D2 had not spoken a single word to him during the whole course of the adjournment but had indicated, again by body language, that he could not understand what was being said to him.

14. Bearing in mind also that the evidence of D1 in the trial, relied on by D2, was that the two of them had met and spoken together before the robbery and killing, it was apparent to us that a charade was being enacted in court. As Dl's preference of language was for Putonghua, we proceeded with the interpreter in that language. We refused to give leave to appeal on the further ground proposed by Mr Haynes.

D1's grounds of appeal

15. Mr Mullick, who did not appear in the court below but appears now on behalf of D1, has advanced five grounds of appeal in relation to count 1. From the outset of the hearing, counsel were aware that we would not entertain any argument on "ground 5" (adopted also by Mr Haynes for D2) which is concerned with whether the mens rea required to prove murder infringes the Bill of Rights, until a decision has been concluded on the same point in HKSAR v Coady Maria Remedios B. CACC 119/1999, where Mr Mullick and Mr Bruce, SC, are also instructed. None of the other grounds raised in this application have a bearing upon the fifth ground and we propose, therefore, to deal with all the grounds, save Mr Mullick's "ground 5" in this judgment.

16. Grounds 1 to 3 all assert, in a number of different ways, that there was insufficient evidence to prove murder against D1. Mr Mullick accepted that the central issue in the trial was concerned with whether or not the prosecution could establish the necessary intent at the time D1 tied up the victim.

17. In considering these grounds, it has plainly been essential to look at the manner in which the victim was tied and the medical evidence given about the cause of death. Evidence about this was given by Dr Shum Shui-fung, the forensic pathologist who attended the scene of the crime on 27 July 1997 and later conducted the post mortem. At the scene he described the victim's body as being face down and naked from the waist up, with ligatures tied around the neck, the wrists and legs. The body was clad in blood-stained trousers. Photographs taken at the scene graphically demonstrate the manner in which the body had been tied.

18. At the post mortem, Dr Shum examined the rope ligatures more closely. The legs had been tightly tied with a light-coloured piece of rope wrapped several times round the legs and securely fastened. A long piece of blue rope was secured "tightly with a knot" at the "right back of the neck". This passed downwards over the back of the body "to loop around the ligature which tied the legs together, and then passed upwards over the back of the body to tie the wrists together by multiple turns and knots". There was heavy bloodstaining over the face and upper front of the chest. The pathologist catalogued 24 areas of injury, including a stab wound measuring 5.5 cm in length which was found on the "right middle front of the neck". In effect, therefore, the victim had been trussed up without hope of escape unless given assistance. His injuries were consistent with the victim having been assaulted.

19. The cause of death was "pressure on the neck". Dr Shum continued by saying:

"The circumstantial and autopsy findings indicated that the death of the deceased was due to pressure on the neck in the form of ligature strangulation, although other form of strangulation or pressure on the neck such as manual strangulation, the use of hand, could not be excluded. In addition, the nature and the extent of the fractures of the thyroid and the cricoid cartilage, that is the voice box, also suggests the application of heavy blunt forces to the front of the neck, such as blow or kicks or other form of compression to the front of the neck, which could also have contributed to the death of the deceased."

20. Dr Shum later continued by saying:

"... although the constriction of the neck by the ligature could have caused rapid death, there exists a possibility that the deceased might not have died right away if he was still conscious at the time of the application of the ligature around the neck "

21. Dr Shum considered that it was a possibility that "even with the application of the ligature" the victim may not have died immediately. However, he went on to say later:

".... even if the deceased was not killed, or did not die immediately after the applications of the ligature around the neck, that would have been inevitable .... The stab wound on the neck was not deeply penetrating, and had not injured the major blood vessels. Although it could have resulted in some bleeding, which could have some contribution to the death of the deceased, it was unlikely to be the -- to be fatal on its own account. It was compatible with having been inflicted by a sharp pointing weapon, like with a narrow blade, such as a narrow-bladed knife."

22. It was Dr Shum's opinion that the victim had not caused his own death by struggling to free himself from his bonds. He stated that there was a substantial chance that the victim "may have died immediately or very shortly after the application of the ligature".

23. Looking at the factors described by Dr Shum, Mr Mullick described the tying up of the victim as far more consistent with someone who was trying to prevent the victim from escaping than a deliberate killing. As he put it in his skeleton argument, "the only complaint which can be levied against the judge's otherwise impeccable address to the jury is that she did not direct them to acquit the (Applicants) of murder", although she came "as close as it could be to give such a direction, without actually doing so".

24. There can be no question that the judge, in summing up to the jury, allowed her feelings to be known to them, namely that in her view manslaughter was a more appropriate verdict than murder. However, the law does not permit a judge, where there is a case to answer, to usurp the functions of the jury by directing an acquittal during the summing up. The judge was entitled, on the other hand, to put forward, forcefully if need be, everything that could be said in favour of a manslaughter verdict. In the present case, given that the prosecution was as much entitled as the defence to a fair trial, the judge undeniably urged the jury to convict of manslaughter. This was done in a way which was just within the limits of what she was permitted to do. That being said, the judge told the jury that it was for them to decide the verdict and it is plain that they acted upon this direction.

25. At the heart of Mr Mullick's submissions on these grounds lay the proposition that the judge should not have left "intent" as an issue for the jury to consider because there was no firm basis to support an inference that the tying up of the victim was accompanied by an intent either to kill or to cause really serious bodily harm.

26. We disagree with this submission. This was pre-eminently a case in which this issue was for a jury to decide. Clearly trial counsel, who included Mr Haynes who appears for D2, also thought the issue was a matter for the jury because neither Mr Haynes nor his co-defending counsel made any submission of no case to answer. The trial judge would herself have been bound to raise this if she had considered that such a submission was justified.

27. The directions given to the jury as to how they should approach inferences and as to the ingredients of murder and manslaughter were impeccable. Indeed, no criticism is made of them. Bearing in mind the obvious force used to tie the rope around the victim's neck, there was the plainest evidence for the jury's consideration that D1, at the very least, intended to cause the victim grievous bodily harm.

28. We find no substance in these grounds.

29. Turning next to ground 4, Mr Mullick submitted, by way of an alternative approach to grounds 1 to 3, that the judge "erred in law and practice in not directing the jury at the conclusion of the prosecution's case to return a verdict of not guilty on count 1".

30. As we have already said, the prosecution had plainly adduced sufficient evidence for a case to be answered and we do not, in such circumstances, consider that there was any scope for the judge to have ruled no case to answer. Furthermore, no question had arisen as to the unreliability of witnesses which might have called for consideration under the second limb in R v Galbraith (1981) 73 Cr. App. R. 124 which requires a judge to stop the case if the prosecution's evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it.

31. Mr. Bruce, SC, on behalf of the Respondent, has reminded us in his most helpful written submissions, about a passage in HKSAR v Poon Lai-lin and another, CACC 720/1996 (unreported), where it had been argued by counsel that the trial judge should have exercised her discretion to withdraw the case from the jury and direct a verdict of not guilty. Mortimer VP, having cited the two well known limbs of Galbraith, went on to say:

"Finally, Mr Saw cites an Australian decision R v Doney (1990) 171 CLR 207, 214 where the same principle is enunciated:

'It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest, it will not sustain a verdict of guilty.'

It is of considerable importance to recognise that we have the protection in our society of trial by jury. Judges must not usurp their function. Therefore, even if the judge considers that he would not convict on a witness's evidence where the witness has given evidence upon which it is open to a jury to convict when properly directed, he has no discretion to withdraw the case from them. In this case, it is clear that the judge had no discretion on the evidence which was before her to exercise the discretion which is contended for."

32. We have concluded in the present case that there is no substance to this ground. There was clearly evidence for the jury to consider and it would have been to have usurped their function for the judge to have withdrawn the case from them by directing an acquittal on the charge of murder.

D2's grounds of appeal

33. It is convenient to turn next to the grounds raised by Mr Haynes on behalf of D2 who, in his first ground of appeal, submitted that it was the judge's duty to withdraw the charge of murder against D2 from the jury's consideration. Mr Haynes, who as we have said already made no submission of no case to answer in the trial, was perhaps, in advancing this submission now, influenced by the judge's extremely weighted comments in favour of manslaughter.

34. He submitted that it might even be that in convicting of murder, despite directions that manslaughter might be a more appropriate verdict, the jury were prejudiced against both Applicants by virtue of their status as illegal immigrants in Hong Kong, by the horrific nature of the photographs and by Dl's confession to having robbed an older man. We need only say, in respect of all these matters, that the jury were given sound and sensible directions.

35. There was plainly a case for D2 to answer. There was strong evidence that he had been in a violent struggle with the victim. Immediately following the struggle, the victim had been dragged to bushes and tied up in the style which has been described already. D2 had in his possession part of the proceeds of the robbery. Whether or not death or really serious injury was intended by D2, if and when he rendered assistance or encouragement to D1, was entirely a matter for the jury. The judge's directions in this respect were in these terms:

"Turning to the murder count, Count 1: if the victim of a robbery carried out pursuant to a joint enterprise is tied up, then both robbers would be legally responsible for the tying up if it was likewise done pursuant to a joint enterprise. So if the two men shared a common intention that the victim should be tied up and was each prepared to assist the other in tying him up if and as the need arises, then both would be responsible for the tying up even if only one man performed the physical act of tying the victim up. The other man would be legally responsible for the act of tying up if he supported the other man by standing by ready to give assistance if required.

So much for the physical part of the killing. I have already directed you as to the mental element of murder on the one hand and manslaughter on the other. Shortly stated, for murder it is an intention to kill or cause really serious injury. For manslaughter, there is no need for such an intention. What is necessary is that the unlawful act which resulted in death is one, such as an assault, which all sober and reasonable people would inevitably realise must subject the victim to at least the risk of some physical harm resulting therefrom, albeit not serious harm."

36. This ground fails.

37. In grounds 2, 3 and 5, Mr Haynes alleged that various parts of the summing up created unfairness to D2's case. He submitted in ground 2 that D2's defence was too briefly summarised to do justice to it and, in grounds 3 and 5, he suggested there were areas of the defence case where the judge gave directions which were not fair to D2.

38. As to ground 2, no evidence was given by D2 himself and the jury was reminded by the judge that he relied on the evidence given by D1 to the effect that he (D2) was not a party to the robbery or the tying up of the victim. The judge, perfectly properly, also reminded the jury that the prosecution's case was that Dl's evidence, where it sought to exonerate D2, was untrue. Giving one example of this, concerning the possession by D2 of the victim's ETC card, the judge said:

".... what do you think of the 1st accused's evidence that he found it on the ground and placed it inside the 2nd accused's underpants, thinking that it belonged to the 2nd accused? Why would he do that instead of putting it into his own jean's pocket or retain it to give it to him later? You are entitled, if you see fit, to take the view urged by the prosecution that this was plainly a false account made up to meet the prosecution's evidence that the deceased's ETC card fell out when the 2nd accused was removing his underpants.

The prosecution's point here is to the following effect. That a robber would hide a stolen ETC card in his underpants is, you are entitled to think, one thing. That a companion, believing that the ETC card belonged to the other man, would place it inside that other man's underpants rather than his pocket, is, you are entitled to think, another matter altogether."

39. This direction is the subject of complaint in ground 5 where Mr Haynes suggested that if Dl's account was rejected by the jury, there were so many possibilities as to how the card could have found its way into D2's underpants. He submitted that the judge should have directed the jury to ignore or disregard this evidence on the charge of murder. However, this submission overlooks the evidence of the victim's blood being found upon it which was a piece of circumstantial evidence the jury was entitled to take into account along with others.

40. In his third ground of appeal, Mr Haynes submitted that the directions given to the jury in the summing up at page 19K-T in the appeal bundle were unfair to D2. The directions were as follows:

"If the 2nd accused was party to the robbery, he would have just as much interest as the 1st accused in the deceased being tied up afterwards to prevent him from reporting the matter promptly. If the tying up was in the course of a joint enterprise, then both men would be legally responsible for it. If such a thing is done in a joint enterprise, it does not matter which man did the tying up. The other man would be just as responsible in law if he gave encouragement (whether expressed or tacit) and support (in the form of preparedness to assist if necessary) for that to be done, and it was done for his purposes just as much as for the purposes of the other man.

If the 2nd accused was party to the tying up of the deceased as a joint enterprise, then he would be just as guilty of its consequences as the 1st accused."

41. After this passage, the judge went on to remind the jury of her earlier directions as to murder and manslaughter and then forcefully suggested that they "may well think" that there was a doubt over the intent required for murder in D2's case.

42. Bearing in mind that D2's defence, relating to the time when the victim was being tied up, was based upon the evidence given by D1 to the effect that D2 had fainted and was lying on the ground, we can see no criticism of the judge's directions. The carefully chosen words, in the passage just cited, show no less than four sentences out of five starting with the word "if" and the remaining sentence containing the word "if" in two places. The judge in those directions was providing the jury with a clear demonstration of what needed to be proved, if he did anything at all, to establish D2's joint participation in the killing. The jury was entitled to reject, as they plainly did, D1's evidence that D2 had not played any part in tying up the victim after the robbery. Once the jury accepted that D2 had participated in tying the victim, physically or by encouragement, the sole issue to be determined was D2's intent at the time of doing so.

43. These grounds must also fail.

44. In his fourth ground of appeal, Mr Haynes alleged that D2 was subjected to inhuman treatment following a refusal by D2 to give a blood sample. In the event, police were able to use blood taken from one of D2's bandages which had fallen off.

45. Mr Haynes sought to invoke Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383, which provides:

"Article 3

No torture or inhuman treatment and no experimentation without consent

No one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

46. As Mr Bruce pointed out and as Mr Haynes eventually agreed, there was no factual basis for this claim as there was no evidence to contradict the officer's evidence that the bandage had fallen off. In any event, even if an officer had decided to remove the bandage as Mr Haynes seemed to be suggesting, we are disinclined to think that this would amount to any violation of the rights which are guaranteed under Article 3.

47. This ground fails.

48. It was contended by counsel for both Applicants that the verdicts were unsafe and unsatisfactory. We disagree. There was ample evidence of murder for the jury to have considered and the alternative of manslaughter was fully and fairly explained to the jury before they returned with their verdicts of guilty on the charge of murder.

49. For the reasons we have given, these applications, so far as the grounds to which we have given consideration are concerned, are dismissed.

(Having heard counsel after delivery of this judgment, the court adjourned consideration of Mr Mullick's "ground 5" until the conclusion of HKSAR and Coady Maria Remedios B., CACC 119/1999)