HKSAR v. SOO CHUN SOU, DOMINIC

   CACC262/2008

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF APPEAL

   CRIMINAL APPEAL NO. 262 OF 2008

   (ON APPEAL FROM HCCC 9 OF 2008)

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BETWEEN

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.  The applicant was convicted by a unanimous verdict, after a trial before V. Bokhary J and a jury, of an offence of murder. The applicant seeks leave to appeal that conviction.

2.  The prosecution case was that on the night of the 7 February 2007 the applicant had stabbed the female victim to death in a remote area at Ha Pak Nai in Lau Fau Shan. She had at the time been his lover for a period of about four months. The motive attributed to the applicant was one of jealousy, arising from the deceased’s continued contact with her previous male friends even when in the company of the applicant. The body of the deceased had been found in vegetation nearby a dirt road in Ha Pak Nai some three weeks after she had disappeared from her flat in Happy Valley. Whilst the body itself was badly decomposed there were cut marks in the deceased’s clothing indicative of her having been stabbed a number of times, as well as cut marks on her ribs consistent with such a stabbing。

3.  The case against the applicant was wholly circumstantial. The applicant made no admissions to the killing of the deceased, though when interviewed by the police he had admitted that he had been with her on the night of 7 February when she had last contacted her family members and had last used her mobile telephone. But there was no forensic evidence linking the applicant to the killing and, unsurprisingly, no one in the nature of an eyewitness.

4.  The prosecution case relied heavily upon the admissions of the applicant to the police that he had driven the deceased to Lau Fau Shan for dinner on the night of 7 February though he also said that he had, at her request, dropped her off after leaving the restaurant at a roundabout in Lau Fau Shan before himself driving home to his own flat in Happy Valley. That roundabout was about a 15-minute drive from the place where the deceased’s body was subsequently found. The prosecution also relied on various CCTV recordings of the applicant and the deceased being together during the afternoon of that day when they were shopping in Tuen Mun, as well as the evidence of a waiter who testified that they were at the restaurant in Lau Fau Shan that night and that they had left together at about 10:30 p.m. It was accepted that the deceased had used her mobile telephone to contact an ex-boyfriend at about 10:44 p.m. and that the call had been processed through the terminal at Ha Pak Nai. Other CCTV recordings showed the applicant had later entered a 7-11 store alone in Yau Ma Tei at about 1:00 a.m. on 8 February, and the record of his Autotoll account showed his vehicle returning to Hong Kong via the cross harbour tunnel at about 1:15 a.m.

5.  There were four main features of the circumstantial evidence relied upon by the prosecution. The first was that the applicant had been with the deceased only a short time before her disappearance and in the general area where her body had been found; the second was that, from a comparison of the CCTV recordings made of him shopping with the deceased during the late afternoon of 7 February before they continued on to Lau Fau Shan, and those made of him at 1:00 a.m. on the morning of 8 February when he went into the 7-11 store at Yau Ma Tei prior to returning to Hong Kong from Lau Fau Shan, the applicant had changed into different clothing; thirdly that the applicant, after returning home and having had no more than five and a half hours’ sleep, had then driven his vehicle at about 7:45 a.m. on the morning of 8 February back to the New Territories for the purpose of having it washed and cleaned at Fo Tan; and, finally, that six days later he had given up the lease on his flat in Happy Valley, to which he had moved to be nearby the deceased’s address, and in the process had forfeited about $12,000 under the terms of his rental bond.

6.  There were other aspects of the evidence also relied upon by the prosecution, but the above facts established the essence of the prosecution case.

7.  The applicant did not give evidence and his case was quite simply that the contents of his interviews with the police were essentially correct and that he had last seen the deceased when she had left his car at the Lau Fau Shan roundabout shortly after they had left the restaurant on the night of 7 February.

8.  There are three grounds of appeal advanced by Mr Macrae, SC and Mr Mughal of counsel on behalf of the applicant :

(1)  that the judge erred in restricting her direction as to the good character of the applicant to its effect upon “propensity” alone;

(2)  that the judge misdirected the jury as to the defence of provocation; and

(3)  that the conviction was unsafe as the evidence against the applicant was insufficient.

The character direction

9.  It was accepted at trial that the applicant was of good character in the sense that he had no previous convictions. Prior to directing the jury, indeed prior to counsel’s speeches, there had been a brief discussion between the judge and Mr Mughal (who represented the applicant at trial) as to the content of the character direction to be given. The judge had informed Mr Mughal that she intended to give only the propensity limb of the direction, and ultimately did so, although Mr Mughal had initially requested that both limbs of the standard Berrada direction be given, that is, a direction as to the effect of the applicant’s good character on both his propensity to commit the offence and his credibility.

10.  The reason the judge gave for restricting her direction to propensity alone was simply that the applicant had not given evidence. In that regard the following exchange took place prior to the judge’s summing‑up :

“MR MUGHAL :  The clear record direction, my Lady.  Your Ladyship is minded to give a full direction on that, both limbs?

COURT : I am minded to do so – yes?

MR MUGHAL :  Thank you, I’m obliged.

COURT : Do you want to address me on that?

MR CREBBIN :  My Lady, he has a clear record, it’s accepted.

COURT : He has a clear record – yes?

MR MUGHAL :  He does, yes.

COURT : I am going to give him the …

MR MUGHAL :  Full direction.

COURT : I am going to give him the full direction – but on the basis that he hasn’t given evidence.

MR MUGHAL :  Yes, my Lady.

COURT : I mean – he can only rely on one limb of the …

MR MUGHAL :  The propensity.

COURT : Yes.

MR MUGHAL :  I’m obliged, my Lady.

COURT : But not the other because since he hasn’t testified.

MR MUGHAL :  I’m grateful, my Lady.

COURT : All right.”

11.  We think that the credibility limb of the direction should also have been given. The applicant, while not giving evidence, had in his interview with the police, provided a detailed account of what he said had occurred on the afternoon and night of the murder. That account, while it formed part of the prosecution’s case, also set out the applicant’s defence to the effect that while he had been with the deceased on the night the prosecution said she had been killed, she had left his car at Lau Fau Shan.

12.  We have no doubt that the applicant’s statements contained in that interview were “mixed” in the sense in which that term is used in R v Duncan (1981) 73 Cr.App.R. 359. The interview contained, on its face, both inculpatory and exculpatory parts. Its contents admitted an association with the deceased in the area where her body had been found at about the time of her disappearance, but explained also that she had left the presence of the applicant prior to her death and that, by necessary implication, the applicant had not been involved in her killing. It also explained an unaccounted for time period of about an hour relied upon by the prosecution (during which the applicant was said to have killed the deceased) as being caused by the applicant having become lost while driving home after leaving the deceased at the roundabout at Lau Fau Shan, and it offered explanations for other aspects of the prosecution case against him.

13.  In Tang Siu Man (No.2) v HKSAR (1998) 1 HKLRD 350 the Court of Final Appeal, by a majority, concluded that there was a considerable discretion vested in a trial judge as to the scope and terms of any direction as to good character to be given to a jury, and that what had become a strict rule of practice following the decision in R v Vye(1993) 1 WLR 471 that both limbs of the direction be given whenever a defendant was considered to be of good character was not to be imported into the law of Hong Kong.

14.  It is therefore a matter for the judges’ discretion, but it goes without saying that the discretion must be exercised judicially. In the present case there was no sound reason why both limbs of the direction should not have been given. Insofar as the judge was apparently of the view that the credibility limb was unnecessary simply because the applicant had not given evidence, she fell into error. Where a defendant’s case is encapsulated wholly within a “mixed” statement given to the police, and he or she is of good character then, unless there is reason not to do so, a credibility direction should be given : see, for example, R v Aziz [1995] 2 Cr.App.R. 478 at p.487F. In the present case there appears to have been no real argument presented to, and therefore no sufficient consideration by, the court as to whether such a direction was required. If that had been done in the circumstances of the present case, where the applicants defence was wholly contained in that interview, we have little doubt that the judges decision would have been that the credibility direction should also be given. The failure to give that direction amounted to a non- direction and was an irregularity. The remaining question is whether the proviso to section 83(1) of the Criminal Procedure Ordinance applies.

15.  The effect of the non‑direction must be weighed in the context of the case as a whole. Here it concerned what the applicant had said in his interview with the police. Such an interview falls short of the giving of evidence on oath or affirmation. It could not be subject to cross‑examination, and it has long been accepted that the exculpatory parts of such interviews may well be of less weight than the incriminatory parts. We bear in mind also that as the prosecutions case was wholly circumstantial the defence case was conducted on the basis, not of contradicting the prosecution evidence or any part of it, but simply and primarily on the basis that the prosecution evidence as it stood was insufficient to establish the applicant’s guilt. In other words given the conduct of the prosecution and defence cases, the issue was not the credibility of the prosecution witnesses as opposed to that of the applicant but the sufficiency of the circumstantial evidence against him. We note also that the giving of the propensity direction in the present case carried with it to some extent an imputation that the exculpatory parts of the applicants interview were more likely to be true. For if the applicant was less likely than otherwise to have committed the offence as a consequence of his good character, then of necessity it was more likely than otherwise that those parts of his interview which denied the offence were true. In R v Bellis (1966) 50 Cr.App.R. 88 Widgery J observed (at p.89) that :

“...logically, if (the judge) directed them that the appellant was more credible by reason of his good character, it would have followed from that that he was less likely to have committed the offence.”

16.  In our view the corollary is also true. As Litton PJ observed in Tang Siu Man (at p.361) after referring to Bellis :

“So in truth, when it comes to the relevance of good character, ‘credibility’ and ‘propensity’ often merge.”

17.  Finally we bear in mind this further comment of the majority in Tang Siu Man :

“… Lord Steyn in R v Aziz [1996] AC 41 at p.51C refers to ‘the usual case of a defendant with no previous convictions’.  What inference can properly be drawn about his character beyond the bare statement : (he (or she) has no previous convictions?  The reality is that evidence as to good character, in the run-of-the mill case, can seldom weigh heavily in the scales in favour of a defendant, though evidence of bad character might be extremely prejudicial.”

18.  Given the strength of the evidence in this case, and regarding it against the backdrop of the jury’s unanimous verdict, we are satisfied that had the judge, in addition to thepropensity direction, given also a direction as to the effect of the applicants good character on the credibility of the exculpatory parts of his interview, the jury would nevertheless inevitably have convicted.

The provocation direction

19.  The judge left the defence of provocation to the jury on the basis that the prosecutions case was that the applicant killed the deceased in a fit of jealousy brought on by her telephoning an ex-boyfriend at 10:44 p.m. on the night of 7 February and of the number of stab wounds subsequently found in the deceased’s clothing.

20.  In directing the jury on the second limb of the defence the judge said :

“… Would a 32-year old man with ordinary self-control, even if besotted with the deceased and having had cause to feel jealous over her on this occasion and on other occasions in the past, have, in the circumstances, done what the accused did?  That is the question you have to ask yourself.

What the accused did, if you feel sure on the evidence that he killed the deceased with intent to kill or at least to inflict really serious injury, was, you may think, to stab the deceased in the chest with a sharp instrument repeatedly.  Woulda 32-year old man with ordinary self-control have, if placed in the accused’s circumstances, done what the deceased did?  If you feel sure that such a man so placed would not have done that, then provocation would not operate, and murder would not be reduced to manslaughter.  As to ordinary self-control, you will know, as ordinary human beings and with experience of other ordinary beings, what ordinary self-control means.” (p.13J‑14H) [Emphasis added]

That direction is later repeated in substantially the same terms.

21.  Complaint is made that by use of the word “would”, as opposed to “could” or “might”, the judge effectively reduced the standard of proof placed upon the prosecution to disprove the defence. Attractive though this argument seems at first glance, as plainly there is a difference between the words, we do not think it to be correct. Throughout the judges directions she emphasised that the jury had to be sure that a reasonable man, i.e. an ordinary man, would not have done as the applicant had done, and that only if the prosecution had made them, the jury, sure of that would the prosecution have disproven the defence.

22.  It seems to us that where, as can be seen from the verdict, the prosecution had succeeded in making the jury sure that a reasonable man would not have done as the applicant did, then they must have proven to the jury’s satisfaction that it was not possible that he would do so. In other words the requirement that the jury be sure that a reasonable man would not have killed the deceased carries with it proof that such a person could not have done it.

23.  We note also that by s.4 of the Homicide Ordinance the jury “… in determining that question (i.e. the second limb of the defence) ...shall take into account everything both done and said according to the effect which, in their opinion, itwouldhave on a reasonable man” (emphasis added). We are satisfied that once the jury were made aware that the prosecution bore the burden of proving, so that they were sure, that a reasonable man would not have done what the applicant did, then that was a sufficient direction. Once that has been made clear to the jury then the use of either “would” or “could” is more a matter of form than substance.

24.  Having said that we are strongly of the view that trial judges would be well advised to adopt the terms of the Judicial Studies Board standard direction on provocation when directing juries. That direction in its relevant parts is :

“… if you conclude that the defendant was or might have been provoked, … you must ask yourself this question :

Was or may that conduct have been such as to cause an ordinary and sober person of the defendant’s age and sex … to do as he did?”

25.  Mr Macrae complains also that the judge did not sufficiently focus on, firstly, the gravity of the provocation to the applicant or, secondly, on the effect that provocation of such gravity would have on the reasonable man, by which latter proposition we took him to mean that the jury were not sufficiently invited to clothe the reasonable man with the circumstances in which the applicant found himself at the time of the killing.

26.  In approaching these questions it should be borne in mind that the applicant did not give evidence and had not suggested any bad feeling between himself and the deceased in his interview with the police. There was therefore no evidence from the applicant as to his mental state at the time of the killing or of any loss of self-control by him. The evidential cupboard was extremely bare, and all that was available were the aspects of the evidence which had caused the judge to leave the defence in the first place, that is, the phone call of the deceased which was said by the prosecution to have caused the applicant to react in a jealous rage, and the physical signs of multiple stab wounds in the deceased’s clothing. Nevertheless we are satisfied that the judge, in the absence of any evidential reference to either matter in the defence case, put both the matters complained of by Mr Macrae fairly before the jury.

27.  In respect to the first matter, that is, the gravity of the provocation to the applicant, the judge had commenced her directions on provocation by saying :

“  I leave the possibility of a verdict of manslaughter on the basis of provocation because of the way in which the prosecution’s case is presented.  The prosecution asks you to feel sure, upon all the evidence and the inferences properly to be drawn, that the telephone call by the deceased to an ex-boyfriend, saying : ‘Let’s go out to have a drink with me’ caused a jealous rage that caused the accused to attack and kill the deceased.  Even though you feel sure that the accused killed the deceased with intent to kill or at least to inflict really serious injury, that does not necessarily mean you should convict him of murder.  You will convict him of murder if you also feel sure that the accused did not do so under provocation in the sense which I will explain to you in a moment. …”

28.  She then continued by giving a direction on provocation in standard terms :

“  Provocation that reduces murder to manslaughter arises if : (1) the killer acted out of a loss of self-control provoked by some conduct of the victim whether in the form of something said, something done or both; and (2) the conduct was such conduct as to cause a reasonable and sober person of the killer’s age and sex and other special characteristics, if any, to do as the killer did.  As to the first of those matters, it is the prosecution’s case that the accused acted in a jealous rage.”

29.  Later the judge dealt with the evidence of the ex-boyfriend (PW5) whom the deceased had telephoned at 10:44 p.m. on the evening of 7 February, which phone call was supposed to have triggered the killing of the deceased. She directed the jury :

“  … As to other boyfriends she might have had, consider that for whatever purposes the defence may wish to rely upon.

The boyfriend who is highly relevant is Mr Raymond Fok Ka-kit who gave evidence as PW5.  Consider his evidence for whatever purposes the defence may wish to rely on.  Also consider his evidence in the context of the prosecution’s case, as to which you remember prosecuting counsel saying to you in her opening speech that, as the accused had given up his wife and baby to be with the deceased whom he clearly adored, the prosecution suggests that it was most likely a jealous rage that caused the accused to attack and kill the deceased that night after she had arranged over the phone to have a drink with her ex-boyfriend, Raymond.”

30.  Bearing in mind that there was a commonality of evidence supporting both the prosecution’s case that the applicant killed the deceased in a jealous rage, and the first limb of the defence that the applicant lost control as a result of the deceased telephoning an ex-boyfriend, in our judgment, and bearing in mind the context in which the defence arose, the judge left the issue of the gravity of the provocation to the applicant sufficiently before the jury.

31.  As to the second complaint Mr Macrae makes, we are satisfied also that the judge properly directed the jury that they should take into account the circumstances of the provocation when deciding the effect the provocation would have had on a reasonable man. In that regard the judge said :

“… Would a 32-year old man with ordinary self-control, even if besotted with the deceased and having had cause to feel jealous over her on this occasion and on other occasions in the past, have, in the circumstances, done what the accused did?  That is the question you have to ask yourself.”

and,

“… Would a 32-year old man with ordinary self-control have, if placed in the accused’s circumstances, done what the deceased did?  If you feel sure that such a man so placed would not have done that, then provocation would not operate, and murder would not be reduced to manslaughter. …”

32.  This ground must therefore fail.

The sufficiency of evidence

33.  The whole of the prosecution case was circumstantial. That was a fact the jury were reminded of by the judge and counsel on more than one occasion. The prosecution evidence comprised a number of facts each of which by itself was unable to establish the guilt of the applicant to the required high standard. But the judge properly gave the following direction :

“… where you have various pieces of circumstantial evidence, then it is not a question of whether each of them is capable of supporting the prosecution’s case; in other words, of proving it beyond reasonable doubt.  Instead, it is a question of whether, taken together, they combine to form a case, based on circumstantial evidence, by which the prosecution’s case is proved beyond reasonable doubt; in other words, a case which makes you, as the sole judges of fact, sure of the accused’s guilt.”

34.  The more probative evidence the prosecution relied upon may be summarised as follows :

(1)  The deceased must have died at some time after 10:44 p.m. on the night of 7 February.  That is because she made a last telephone call at that time (to an ex-boyfriend) and no other contact was able to be made with her before the discovery of her body some three weeks later.

(2)  The applicant, it could be inferred, was the last person to see the deceased alive.  He had been with her, according to the evidence of a prosecution witness, at the restaurant in Lau Fau Shan at about 10:35 p.m. on 7 February.  A matter of 10 minutes or so later the deceased made her last mobile telephone call to PW5.  That call was transmitted through the Ha Pak Nai terminal, which covered the area where the deceased’s decomposed body was eventually found.  That remote area was familiar to both the deceased and the applicant, as they had on occasion been fishing there together.  It was about a 15-minute drive from Lau Fau Shan.

(3)  The applicant and the deceased had been shopping together earlier that day in Tuen Mun.  They had been recorded together on CCTV in the Tuen Mun Plaza.  At about 1:00am on 8 February the applicant had gone alone into a 7-11 store in Jordan.  He was again recorded on CCTV.  The clothes he was now wearing, so far at least as his jacket and shoes were concerned, were different from those he had been recorded as wearing at Tuen Mun while he and the deceased were on their way to Lau Fau Shan.

(4)  There was an unaccounted for period of over an hour between the applicant leaving the Lau Fau Shan restaurant at 10:35 p.m. and him entering the 7-11 store in Jordan.

(5)  The applicant then drove to his address in Happy Valley, but was recorded by his buildings CCTV system briefly leaving the building and returning shortly after 2:00 a.m.  His car was later recorded travelling north through an autotoll booth of the Cross Harbour tunnel at about 7:45 a.m.  In other words the applicant went back across the harbour after no more than about five and a half hours’ sleep.  He then proceeded to Fo Tan for the purpose of washing and cleaning his motor vehicle inside and out.

(6)  In the small hours of 13 February the applicant moved out of his apartment in Happy Valley and in the process abandoned a rental bond of about $12,000.  That apartment had been nearby the apartment of the deceased.

35.  The judge in reminding the jury of these aspects of the prosecution case had balanced her summary of this evidence by reminding the jury of those aspects of the evidence which supported the defence case, and no complaint is made of the balance of the judges approach in this regard.

36.  The evidence against the applicant was wholly circumstantial, but taken together became a compelling fabric which in our view the jury were entitled to find amounted to sure proof of the applicants guilt. That they did so by a unanimous verdict is indicative of the strength of the evidence when regarded as a whole. We are satisfied that it cannot be said that the evidence was insufficient or the conviction was unsafe, and this final ground must also fail.

Conclusion

37.  For the above reasons we allow the application, treat the hearing as the appeal but, on the application of the proviso to section 83(1) of the Criminal Procedure Ordinance, dismiss the appeal.