HKSAR v. CHENG YAT MING

IN THE COURT OF APPEAL

1996, No. 592
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant seeks leave to appeal against his conviction for murder. He was convicted of this offence after a trial before Keith J and a jury.

2. The applicant, who was referred to in the trial as Yat-ming was jointly charged with another man who was referred to as Ah Yiu with murder. Ah Yiu was also charged with robbery arising out of the same incident and Yat-ming was charged with burglary.

3. Yat-ming indicated at the commencement of the trial that he was prepared to plead guilty to manslaughter on the murder count and guilty to theft on the other count. The prosecution was prepared to accept the theft plea but not prepared to accept the manslaughter plea.

4. This meant that the issue which had to be determined on the first count was whether Yat-ming had the requisite intent to either kill or cause really serious bodily harm to the victim Lik Sze or alternatively whether he had been provoked.

5. As the trial proceeded it became apparent that it was provocation which was in reality the issue.

6. Yat-ming accepted that he had been present when Lik Sze had been killed and the question which had to be decided was the extent of his responsibility for Lik Sze's death.

7. It was common ground that Yat-ming and Ah Yiu had gone with Lik Sze to his home at Carson Building in North Point on the morning of 6 September 1995. Both young men gave evidence that the primary purpose of the visit was for Yat-ming to obtain repayment of a loan of $1,500 he had made to Lik Sze.

8. Yat-ming gave evidence to the effect that he and Lik Sze had been friends. After they entered the flat he asked Lik Sze to repay the money he owed him. Lik Sze had denied that he owed the money and had hit Yat-ming a blow with his fist and said that he was no longer his friend. Yat-ming had lost his self-control and had applied a belt around Lik Sze's neck. He had then strangled Lik Sze.

9. The issue so far as Ah Yiu was concerned was the extent to which he had been involved in the incident. Yat-ming had given evidence of his having held Lik Sze at the time. Ah Yiu gave evidence that what he had been attempting to do was to separate the two men who he thought were fighting. The jury appear to have accepted that Ah Yiu's involvement was less than Yat-ming's as he was only convicted of manslaughter.

10. After Yat-ming realised that Lik Sze was dead Ah Yiu had suggested that they should ransack the flat and steal various items so as to make it appear that intruders had entered the flat to steal thus hoping to draw any suspicion from themselves. They had then proceeded with this plan and after they left the flat disposed of the items at a profit. This was the subject matter of the other count.

11. Yat-ming and Ah Yiu were arrested at the beginning of December 1995. Initially Yat-ming put forward a false alibi and denied that he had been present at Carson Building on the morning of 6 September. However later he made two cautioned statements to the police. These amounted to a detailed confession to having killed Lik Sze and stolen the items referred to in the other counts.

12. The second statement also contained various refinements such as the fact that in the afternoon of the 6 September he had had his haircut and that the reason for this was that in the morning one of the other occupants of Carson Building had seen him and he hoped that if his hair was cut short the man might be unable to recognise him.

13. Yat-ming also gave details concerning the disposal of the various items stolen from Lik Sze's home and the destruction of items which might connect him with Lik Sze.

14. The amended perfected grounds of appeal are within a narrow compass. They are as follows:

"3. The Learned Trial Judge erred in the exercise of his discretion in determining to give the jury a direction as to 'propensity' only, in respect of the good character of the Applicant, and failing to give a direction in addition as to 'credibility'. (see page 21Q to 22A - of the Summing-up)

4. The failure to give the above direction was a material non-direction in light of the fact that the Crown had led in evidence the out-of-court statements of the Applicant, ex. P10 and P11, and the Applicant had testified in the trial."

15. The question of credibility was crucial. There were significant differences between the evidence given by Yat-ming and Ah Yiu and also parts of the statements Yat-ming made to the police were at variance with the evidence he gave in court.

16. There was an exchange between Mr Oderberg who is representing Yat-ming at the trial and the judge as to the suitability of Berrada type directions being given to the jury. Keith J was of the view that if any such direction was given it would need to be "heavily qualified" having regard to the fact that Yat-ming had already admitted unlawfully killing Lik Sze and stealing articles from his parents home.

17. It is not necessary to analyse the exchanges which took place and it is sufficient for the purposes of this judgment simply to refer to the directions which were given by Keith J in his summing-up at p21:

" Against that background members of the jury let me turn to the evidence, beginning with that of Yat-ming. He was 17 when he killed Lik Sze, living with his family in Chai Wan. He told you that he had never been convicted of a criminal offence before and you can take that into account in deciding how likely he was to have murdered Lik Sze on 6 September last year, though his lack of previous convictions didn't prevent him from killing Lik Sze."

18. The 1st question which has to be considered is whether the applicant was in fact entitled to receive a full character direction along the lines envisaged in R. v. Berrada [1989] 91 Cr.App.R. 131 CA.

19. Mr Lunn QC who represented Yat-ming before us placed considerable reliance upon the speech of Lord Steyn at pages 52 and 53 of R. v. Aziz [1996] 1 AC 41 where he attempted to elaborate upon the circumstances when it might be appropriate for a judge to give directions concerning the good character of a defendant. Lord Steyn was considering a situation where although no conviction had been recorded against the defendant it had transpired during the course of the trial that the defendant had been guilty of some discreditable conduct. This was an entirely different situation to the present case.

20. Here it is a fact that at the commencement of the trial the applicant had pleaded guilty to theft and had attempted to plead guilty to manslaughter.

21. The Court of Appeal Criminal Division considered the circumstances when a defendant was entitled to a full character direction in R. v. Challenger [1994] Crim. L.R. 202. The following passage appears at p203:

"Held, dismissing the appeal, Teasdale held that a person who had pleaded guilty to an offence in the indictment should be entitled to a full character direction. T had been charged on count 1 with causing 'GBH' with intent and on count 2 with unlawfully causing 'GBH'. She pleaded guilty to the second count. Following conviction on count 1, the judge ordered that the plea of guilty on count 2 be vacated. The decision was to be confined to the particular circumstances existing in that case, and the Court was not saying that it was implicit in the Lord Chief Justice's judgment in Vye, Wise and Stephenson [1993] 1 W.L.R. 471 that a full character direction had to be given where a defendant had pleaded guilty to one or more counts in an indictment and was being tried on other counts in the same indictment or had pleaded guilty to one indictment but was then being tried on another indictment to which he had, on the same court appearance, pleaded not guilty. Once a person had pleaded guilty to an offence he ceased to be a person of good character and the full character direction became inappropriate unless the offence to which he had pleaded guilty was an alternative to that on which he was being tried and the facts were such that if his conviction on the greater offence was brought home then his guilty plea on the lesser offence had to be vacated so that there was no conviction." (Emphasis supplied)

22. We are satisfied that this is a correct statement of the law. Applying the passage to the circumstances of the present case it would appear that the attempt to plead guilty to manslaughter would not have disqualified Yat-ming from receiving a full character direction but that his plea of guilty to theft would have disqualified him.

23. On this basis he should not be considered as a person of good character and a full character direction would have been inappropriate.

24. The question then arises as to whether he was entitled to any sort of direction as to character.

25. What is clear from the speech of Lord Steyn in R. v. Aziz is that a judge has a discretion to decide what might be appropriate. We do not think that there is any justification whatever to interfere with the way in which Keith J exercised this discretion. Although the direction he gave did not address the question of credibility directly it may well be the case that the qualifications he would have thought necessary to add to provide a balanced direction would have rendered the direction nugatory.

26. There is no merit in this ground of appeal. The conviction for murder was neither unsafe nor unsatisfactory and this application is dismissed.