HKSAR v. CHOW WING MAN

CACC286/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.286 OF 2005

(ON APPEAL FROM HCCC 284 OF 2004)

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REASONS FOR JUDEMENT

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Lunn J (giving the judgment of the Court) :

1. The applicant applied for leave to appeal against his conviction on 16 June 2005 for murder following a re-trial before V. Bokhary J and a jury.  At the hearing his counsel, Mr Callaghan, informed the court that the applicant abandoned his application for leave to appeal against sentence.  We dismissed both applications and indicated that we would give our reasons for dismissing the application for leave to appeal against conviction in due course.  This we do now.

Background

2. On the evening of 21 April 2001 police officers and officers of the Fire Services Department entered premises at Flat A, 7^th Floor, 16 Hung Fook Street, Hung Hom.  Inside the premises, the badly decomposed body of the deceased, Lee Yau Ming, clad in pyjamas was found on the floor.  He was the 71-year-old tenant of the premises.  A fluorescent light tube was lit and the television was on.  Most of the curtains were drawn together.  There were no signs of forced entry to the premises, signs of a struggle or ransacking of the premises.  A wallet containing $1,300 was found in a pair of jeans, found hanging on the wall.  Earlier, the landlady of the premises had reported to the police a smell emanating from the premises and had provided them with a key with which to enter the premises.

3. The advanced decomposition of the body led the police to conclude, initially, that there were no suspicious circumstances surrounding the death of the deceased.  As a result, a post-mortem of the body was not conducted until 3 May 2001.  It revealed that the deceased’s throat had been cut, there being a 14 cm long gaping wound stretching from the left to the right front upper neck.  Also, there was a 7 cm long cut wound on the right back of the lower neck, lacerations to his left forehead and face, multiple fractures to the skull and fractures to four of the right ribs.  In the opinion of the pathologist, the deceased died from the cut wound to the front of the throat about one week prior to the discovery of the body of the deceased on 21 April 2001.

4. In the period from 21 April 2001, following the discovery of the body of the deceased, and before the autopsy performed on the body of the deceased on 3 May 2001, the deceased’s flat was cleaned and the furniture removed.  It follows, that it was only at the latter date that the police treated the premises as the scene of a crime.

The prosecution case

5. It was the prosecution case that the applicant had robbed and murdered the deceased on or about 15 April 2001, in particular, that the applicant had stolen from the deceased a gold bracelet and necklace.  It was an admitted fact that the applicant had pawned the gold bracelet at a pawnshop in To Kwa Wan on 15 April 2001, giving a false address and that when the gold necklace was pawned on 16 April 2001 in Macau he gave yet another false address.  Also, it was an admitted fact that the applicant had departed Hong Kong for Macau via the Macau Ferry Terminal at 9:23 p.m. on 15 April 2001.

6. The applicant was the immediate neighbour of the deceased, living in Flat B.  Mr Chung Shek Hing and his sister Ms Chung Po Lin lived opposite the deceased.  The former testified that in the early afternoon of one of the days of the Easter holidays of 2001, namely 13-16 April, he had been at home together with his sister when he had heard unusual sounds coming from the deceased’s flat.  He heard the sounds of banging, like hitting with a folding stool, and crying out by a person as though he was gagged.  He thought that a fight was ensuing in the premises.  Ms Chung Po Lin testified that the time and date of the occurrence of these events was in the mid-afternoon of either 15 or 16 April 2001.  Initially, she heard a quite loud voice of an old person speaking.  Then she heard the sounds of banging and crying out as described by her brother.

7. Madam Yeung Chun King (PW1), the landlady of four flats, three of which were occupied respectively by the deceased, the applicant and Miss Yip, testified that following complaints from both the applicant and Miss Yip about the smell emanating from the deceased’s flat on 21 April 2001 she contacted the police and let them in to the deceased’s flat in the early evening of that day.

8. Ms Cheng Suet Mui, the former wife of the applicant, testified that on 23 April 2001 the applicant telephoned her twice asking her for a loan to enable him to go the Mainland.  She refused the request on both occasions.  Ms Chan Shuk Yee, a former girlfriend of the applicant, testified that on the same date the applicant had telephoned her and requested a loan, saying that he required it in order to travel to see his sister in Ningpo but also saying that he was being pursued by loan sharks.  She lent him $5,000 that very night.

9. It was an admitted fact that the applicant departed Hong Kong on 1 May 2001 for the Mainland through Lo Wu, next to return to Hong Kong on 14 June 2001 at which time he was arrested for the murder of the deceased.

The Defence case

10. The defendant gave evidence and called witnesses on his behalf.  He denied having killed or robbed the deceased.  It was an admitted fact that he had no previous criminal convictions.  In April 2001 he was 50 years of age.  From time to time he indulged in gambling and on occasions was indebted to a loan shark.

11. He accepted that he had pawned the gold bracelet and necklace, asserting that he had found them on the staircase of the main entrance of his building at about 1 p.m. on 15 April 2001.  Having pawned the gold bracelet he returned home.  By an arrangement of the previous day Ms Srianah, a witness called in the prosecution case, had arrived at his home at about 2 p.m. that day and spent the afternoon with him.  Ms Srianah had testified earlier that she was an Indonesian domestic helper and had known the applicant for some months.  She had a series of telephone conversations with the applicant on 14 April 2001 and spoke to him again on 16 April.  Of 15 April, she testified that she had been at a birthday party in Mong Kok in the afternoon and later in Victoria Park in Causeway Bay.  She returned to her home in Hung Hom at 9 p.m., but she could not remember if she had visited the applicant.

12. As indicated earlier, it was an admitted fact that the applicant departed Hong Kong for Macau at 9:23 p.m. that day.  At about 2 a.m. on 16 April 2001 he pawned the gold necklace in Macau.  He went to and from Macau and Hong Kong in the days that followed, gambling in the former.

13. On 21 April 2001 he complained of the smell emanating from the deceased’s flat both to his neighbour the occupant of Flat C, Miss Yip, and to the landlady Madam Yeung.  The latter confirmed in cross-examination that a rental receipt evidenced the fact that on a day around 15 April 2001 the applicant had paid the rent due on the premises that he occupied for the period of one month commencing 15 April 2001.  On the day of the discovery of the body of the deceased police officers had made enquiries of the applicant.  On 22 April 2001 he went to Macau, returning to Hong Kong on 23 April 2001.

14. The applicant accepted that he had telephoned both his former wife and his ex-girlfriend on 23 April 2001, seeking loans from them.  He gave both of them the excuse that the need for the loan arose because he was being pursued by loan sharks.

15. On 1 May 2001 the applicant departed Hong Kong to work in the Mainland in a job arranged for him by his brother.  Having learnt from his brother that he was wanted as a suspect in a murder case he returned to Hong Kong on 14 June 2001.

16. Chow Yiu Man (DW3), the applicant’s brother, confirmed having arranged a job in the Mainland for the applicant at his request on 27 April 2001 and, subsequently, having advised him of the fact that the police were looking for him as a suspect in a murder case.  He arranged for a lawyer to assist the applicant on his return to Hong Kong.

Grounds of Appeal against Conviction

17. At the outset of the hearing of the application for leave to appeal against conviction Mr Callaghan informed the court that the applicant abandoned Grounds 2 and 3 and relied only on Grounds 1 and 4 of the Perfected Grounds of Appeal against Conviction, the latter being a bare contention that the conviction was unsafe and unsatisfactory.  Regrettably he had given no prior notice to either the respondent or the court of that decision.  At Mr Callaghan’s request a transcript of the testimony of 15 witnesses called at the trial, occupying over 230 pages of the appeal bundle, has been produced.  To a large extent that material was relevant only to Ground 3 of the Perfected Grounds of Appeal against Conviction, which asserted that the judge had failed to sum up the defence case properly, as established in cross-examination and in evidence called in the defence case.  On 12 January 2006 Mr Callaghan filed a seven-page written argument, most of which was occupied by detailed references to evidence said to support this ground of appeal.  The failure to inform the court and the respondent in advance of the hearing that this ground was abandoned has necessitated the respondent addressing this matter at length and in detail in its written submissions and the court being occupied in needless reading of this voluminous material.

Ground 1

18. By Ground 1 it is submitted that there was a material irregularity in the trial, in that the judge declined to discharge the jury on an application for their discharge made on behalf of the applicant.  That application was based on the fact that the prosecution had opened its case, without objection, on the basis that the deceased’s former wife and ex-girlfriend were expected to testify that on 23 April 2001 each of them had telephone conversations with the applicant, in the context of a request by him for the loan of money, in which he had asserted that he had killed someone.  However, in the course of evidence led in the prosecution case and before those witnesses testified the judge had acceded to an application made on behalf of the applicant that that evidence be ruled inadmissible.  In consequence, that evidence was not led before the jury.

The respondent’s submission

Ground 1 :

19. Mr Zervos SC, on behalf of the respondent emphasizes that, notwithstanding that the defence, and Mr Callaghan in particular, were provided with written copies of the proposed opening prior to the delivery of the opening, no objection was made in respect of the references to the anticipated testimony of the applicant’s former wife and former girlfriend as to his statements to them that he had killed someone.  The court is asked to note that reference was made, without adverse comment, in the Court of Appeal’s judgment in the applicant’s appeal against his conviction in his first trial (unreported, CACC613/2002) in which the applicant’s conviction for murder was quashed, to the fact that this specific evidence had been led in the trial from these two witnesses.

20. It is submitted by the respondent, that all of the evidence of the two witnesses of repeated, night-time telephone requests on 23 April 2001 for money from the applicant to enable him to go to the Mainland, accompanied by assertions that he had killed someone was relevant and admissible evidence and that the challenged part of their evidence, that the applicant had asserted to them in those conversations that he had killed someone, was wrongly excluded by the judge.

21. In any event, it is submitted by the respondent, that there was no material prejudice to the applicant given the directions of the judge to the jury.

22. It is accepted by Mr Callaghan, who appeared for the applicant at his re-trial, that prior to the opening speech of the prosecution to the jury, he had been supplied with a written copy of that speech.  It stated in terms the evidence expected of the witnesses to be called by the prosecution.  Of his former wife, Ms Cheng, counsel said that it was expected that she would give evidence that :

“On one evening between 13 and 16 April 2001, the defendant had told her that he had killed a loan shark by stabbing him.  The defendant also told her that the body was still in the building where he lived.”

There was no suggestion of a second murder having taken place at the building in which the applicant lived.  This could only have been a reference to the murder with which we are concerned.

23. Of his former girlfriend, Ms Chan, it was said that she would give evidence that she received a telephone call from the applicant on 23 April 2001 in which the applicant had said that :

“… he had killed someone and needed money to buy air ticket to leave Hong Kong for the Mainland.”

24. That short description of that prospective evidence accorded, in broad terms, with the written statements of the two witnesses served on the defence prior to the committal from the Magistracy on 25 January 2002 and with the evidence led from those witnesses at the first trial.  Furthermore, specific reference had been made to that evidence in the judgment of this court of 20 August 2004 in which, for other reasons, the applicant’s conviction for murder had been quashed and a retrial ordered.

25. Mr Callaghan accepts that the prosecution was not asked to omit reference to this material in the opening, nor was the prosecution or the court informed that it was to be the subject of challenge as to admissibility.  The first intimation of that challenge was made on the 7^th day of the trial, namely 31 May 2005.  At that stage, Mr Callaghan informed the court that, having reviewed the previous testimony of the two ladies, the applicant’s former wife and his former girlfriend, he had had a “change of heart” and objection was now taken to that part of their testimony in which they referred to his assertions to each of them respectively that he killed someone.  In the event, submissions were made in support of the challenge on 6 June and the court’s ruling, excluding the evidence, delivered on 7 June 2005.  On 8 June 2005 counsel for the applicant asked that the jury be discharged, the refusal of which application is the basis of this ground of appeal.  At an early stage of the morning of the following day, the 14^th day of the trial, the prosecution closed its case.

26. In refusing the application to discharge the jury the judge said (appeal bundle, page 289M) :

“I am satisfied that what was said in the opening does not preclude this jury from trying this case fairly, safely and satisfactorily.”

The judge went on to say to counsel (appeal bundle, page 289P) :

“AsI said earlier on, I shall invite defence counsel to address me on whether I should say anything about this to the jury in my summing up.”

27. It is to be noted that in neither the closing speeches nor in the summing up did counsel or the judge make reference to the description in the opening speech for the prosecution of the prospective evidence of the applicant’s former wife and former girlfriend.  In his opening, counsel for the prosecution had said in prospect of his outlining the facts of the prosecution case (appeal bundle, page 37B-C) :

“I must, however, make it clear to you that what I say now is not itself evidence, it is only what I expect various witnesses will tell you.”

At the conclusion of his opening address, counsel repeated the observation to the jury that his opening was not itself evidence (appeal bundle, page 40F-G).

28. Prior to the commencement of closing speeches the judge invited counsel for the applicant to address the court specifically in respect of any direction sought by him about references to the anticipated testimony of the two witnesses in the opening of the prosecution.  Counsel for the applicant asked that there be no reference to the statements made in opening and agreed specifically with the judge’s suggestion that the matter be dealt with by reference in the summing up to the fact that speeches are not evidence (appeal bundle, page 362).

29. In her summing up, the judge reminded the jury that they had taken an oath or affirmation (appeal bundle, page 2K) :

“… to try the case according to the evidence.”

Later, she directed the jury, in accordance with what had been agreed with counsel, (appeal bundle, page 5M) :

“Speeches are not evidence.”

The judge repeated that direction elsewhere in the summing up (appeal bundle, page 23M) :

“What counsel say in (a) speech is not evidence- ---- I have already told you that.”

The judge’s discretion

30. Clearly, the issue of whether or not to discharge the jury, on the application of counsel for the applicant, was a matter for the discretion of the judge.  The issue that arises is whether or not the judge’s refusal to discharge the jury was an erroneous exercise of that discretion.

31. In R. v. Jackson[1953] 1 WLR 591, the Court of Appeal of England and Wales were concerned with an appeal in respect of convictions of four counts of being an accessory before the fact to stealing.  The judge withdrew the case from the jury in respect of four counts of receiving stolen goods.  In opening the case the prosecution had informed the jury that it proposed to call evidence that in the preceding 12 months other stolen property had been found in possession of the appellant.  In the event, that evidence was not led before the jury.  In the judgment of the Court of Appeal, Goddard LCJ said (at page 592) :

“There was the statement of counsel that he proposed to call evidence with regard to one particular lot of goods that the appellant had been in possession of other stolen property during the 12 months preceding the alleged receiving.  The judge did not in summing up refer to this statement, but told the jury to put out of their minds, so far as they could, anything to do with those counts, on which he directed them to find a verdict of not guilty.  We think that was a very wise method of dealing with the position on the part of the judge.  If he had referred to counsel’s opening statement, the more it would have been in the minds of the jury and the harder it would have been for them to disregard (sic) the judge’s direction to put it out of their minds.  In any case we cannot say that, merely because counsel in opening mentioned some evidence which he proposed to lead which turned out to be inadmissible, there is a ground for quashing a conviction …”

32. There is no dispute that, before the prosecution opening, counsel for the applicant was fully apprised of the prospective evidence of the two witnesses and made no objection to the evidence being opened to the jury.  As Mr Callaghan told the judge, on the 7^th day of the trial, when he raised first of all the issue of a challenge to the admissibility to part of the evidence of the two witnesses, he had had a “change of heart”.  Accordingly, it follows that in acquiescing to the prosecution referring in their opening to all of the prospective evidence of the two witnesses, the defence did so from a fully informed and considered position.  A “change of heart” produced a change of tactics and a successful challenge to the admissibility of the evidence.  Given the nature of the evidence, the absence of objection to the admissibility of this evidence in the first trial and the reference to it, without adverse comment, in the judgment of the Court of Appeal it is understandable why counsel did as he did initially. What is not apparent is why the judge ruled that this, on the face of it, extremely cogent evidence was not admissible.  She merely said, “Such evidence, even if probative, would be more prejudicial than probative”, but gave no reason to support her conclusion.

33. This was, after all, evidence which could be viewed as an assertion by the applicant to the two ladies in the context of an urgent request for a loan and his declared intention to go to the Mainland, which he reinforced with the statement that he had killed someone.  This went to the heart of the allegation being tried by the jury albeit that the applicant, perhaps to give himself some sympathy for his drastic action, added the false assertion that the person killed was a “loanshark”.  We have no doubt whatever that, with respect to the judge, she fell into serious error when she ruled this evidence inadmissible.  In consequence, the applicant benefited from the exclusion of this highly relevant evidence.

34. The applicant was on trial for murder.  This was direct evidence of his confession to a killing around the very time when the murder was said to have been committed.  Furthermore, when speaking to his former wife he had said that he had “stabbed” the victim and the body was still inside the building where he lived.  It is difficult to imagine a more cogent confession, recounted by a witness whom it was not suggested had any motive for making up a story against the applicant.  In the result, the prosecution was denied the opportunity of putting important evidence before the jury that they were fully entitled to have led.  Any unfairness caused was to the prosecution, not the defence.

35. Returning, therefore, to the ground of appeal we are satisfied that the judge did not err in the exercise of her discretion not to discharge the jury and, for the reasons articulated in the judgment of Goddard LCJ cited earlier, we are satisfied that the judge dealt with the issue entirely appropriately in her summing up, by making no direct reference to the impugned statements in the opening, but instead directing the jury simply that speeches are not evidence and that the verdict was to be based on evidence.

CONCLUSION

36. In the result, we were satisfied that the conviction was neither unsafe nor unsatisfactory.  There were no merit in the application and, for the reasons we have given, we dismissed it.