THE QUEEN v. CHEUNG YAU TOR AND ANOTHER

----------------

-----------------------

J U D G M E N T

----------------------

Silke, V. P. :

1. Cheung Yau Tor - "D1" - and Yeung Koo - "D2" - were jointly tried before Hooper, J. and a jury upon an indictment containing two counts of murder. They are brothers. They were convicted after a lengthy, and overnight, retirement by the jury. They now seek to appeal against those convictions.

2. The first count concerned the death on 14th January 1987 at Block B, 10th floor, Sau Wah Mansion, No.3 Lau Kee Street, Causeway Bay of Kuan Yang Tche alias kuan Wing Man, and the second count, on the same date and place, the death of Madam Chan Man Yee.

3. The deceased were husband and wife. Then Madam Chan failed to collect her son at 6:30p. m. on 14th January, phone calls mere made to the flat but without result. A friend took the boy home from school, gained entrance to the main building in which the flat was situated when a tenant of the premises opened the door, but got no reply to his knocks on the flat floor. The caretaker was not on duty.

4. At 9:30 p.m. that evening, with the help of a locksmith, the sister of Madam Chan and the niece of Mr. Kuan gained entry to the flat. The deceased mere found with their hands bound and their throats cut. Mr. Kuan had in addition a stab round. Subsequent forensic examination placed the time of death, give of take one or two hours, at 3:30 p.m.. That estimate was not the subject of serious challenge at trial.

5. Two fruit knives, said to he capable of causing, and being consistent with, the wounds on bodies of the two deceased mere found in wash basin in the flat. Which plastic covers mere found on the floor of a size to fit those knives. Two pairs of elastic gloves with their plastic bag container wrappings were also found.

6. There was evidence Mr. Kuan was last seen at 3:00 p.m. and Madam Chap at bout 12:30 when she had been one to the bank to withdraw $3,000 from her account.

7. The issue at trial was the identity of the killer or killers and the times which assumed importance were between, at the earliest, 12:30 p.m. at the latest, 6:30 p.m. though if the evidence of a caretaker were accented it would make the time between 3:00 p.m. and 6:30 p.m..

8. The evidence by which the crown sought to attach the Applicants to the killings was circumstantial. It consisted first in statement's which they made to the police - and it was the Crown' s case in respect of these that there were inconsistencies as between the individual signed statements themselves and further between them and evidence given by the Applicants when then carne to the witness box; second the evidence of the forensic examination of exhibits seined at the scene and comparisons with garments owned by the Applicants. The jury were properly directed that they must give separate consideration to the evidence concerning each of the Applicants and that an out of Court statement is referable to the maker only.

9. D1 had been arrested on the evening of 15th January and D2 a little later on the same day when he came to the Kwai Kee Fastfood Shop run by the Applicants. Also arrested was one Lee Ming who was in the shop at the time of the arrest of Dl. Both Applicants were placed on bail in the first instance.

10. There was background evidence that the shop was seen to he closed some here between 12:00 noon and 1:00 p.m. on the 14th. Both Applicants were seen in or he it between 12:30 p.m. and 1:20 p.m. D2, described as the "taller one", was washing bowls and D1, described as the "shorter one", was seen to leave carrying a plastic bag. At about 5:30 p.m. D1 brought a blue suit and a pink shirt for cleaning to a laundry.

11. It was one of the complaints of Mr. Kynoch, who appears with Mr. Li Hon Lam for D1 here and below, that the trial judge had not made it sufficiently clear to the jury that this journey of Dl had no significance in that there was no suggestion that the suit being brought for cleaning was stained from or was in any way connected with the killings.

12. This point can he disposed of now. The jury were told explicitly that the Crown did not rely on any suggestion that this particular suit had relevance - and this both in opening and closing by the Crown. They could not but he aware of this. It was however unfortunate that this evidence as called. The reason we are told was to "complete the picture". It had no probative value and might have served to confuse fairly complex scientific evidence

13. At 6:30 p.m. the stall was still closed but two people were seen moving about inside it. At about 11:00 p.m. both of the Applicants were seen to be burning joss paper outside the door ?"thanksgiving worshipping" they said.

14. D1 made statements on 15th January (exhibits p42 A, B, C, D and E): on 16th January (exhibit p42 G) on 23rd January (exhibit p42 H) and on 1st April (exhibit p43). D2 made statements on 15th January (exhibit p41); on 16th January (exhibit p41 B); on 23rd January (exhibit p41 C). None of these statements was confessional. A great deal of that which they contained was repeated in evidence by both men. He connection with their taking, the conduct of the police was attacked and what if any weight should be given to they and, if given weight, what if any reliance could be placed upon the inconsistencies relied upon by the Grown as between them, the evidence given by the Applicants and between each individual statement treating each Applicant senarately was in issue at trial.

15. That issue was dealt with, and in detail by the trial judge in his directions to the jury. From those statements and his evidence it emerged that D1 knew the deceased for a period of time and that there had been an attempt by the Applicants to lease premises from Mr. Kuan. D1 attempted to telephone Mr. Kuan on the 14th in this connection. He denied any direct contact with either of the deceased for several months prior to 14th in January.

16. D2 who also knew the deceased also denied recent contact with either Mr. Kuan or Madam Chan.

17. The forensic evidence was given by Dr. D.G. Clark, the senior chemist in the Forensic science Division of the Hong Kong Government Laboratory and by a forensic biologist, Mr. John Ballantyne.

18. Dr. Clark produced that which he described as a "flow chat" showing the numbers and types of fibres recovered from various items in the flat, those taken from clothing owned by the Applicants, their possible sources and cross contacts. On the brown trousers of D1 were found three blue acrylic fibres, and on his jacket two, identical to those in the jacket of Mr. Kuan. Also on his trousers were found five blue polyester fibres identical to those in Mr. Kuan's shirt. Fibres identical to those in the brown trousers of D1, three brown wool, three black wool, two blue wool and one pale grey wool were found on Mr. Kuan's trousers.

19. On D1's brown trousers were found four pale yellow polyester fibres and two pills of pale yellow polyester and very pale yellow polyester fibre identical to those in Mr. Kuan's trousers. D1's trousers had stains which had the appearance of human blood

20. On the blue trousers of D2 were found five blue acrylic fibres identical to those in Mr Kuan's jacket. These trousers were damp and had unidentified traces of human blood. On the blue jacket of D2 were found nine blue acrylic fibres again identical to those in Mr. Kuan's jacket. That blue jacket was damp and had traces of human blood, group B, the possible donors being the male or female deceased or Lee Ming. On the brown cardigan of D2 were found twelve blue acrylic fibres identical to those in the Mr. Kuan's jacket. Further, on D2's blue trousers were found four pale yellow polyester fibres, on his blue jacket two pale yellow polyester fibres and on his brown cardigan one pale yellow polyester fibre, all identical with fibres composing the material of Mr. Kuan's trousers. Both cuffs of D2's shirt had blood stains.

21. Cigaretts butts were found on an ashtray at the scene. Both had saliva of a group A secretor. Both D1 and D2 were group A secretors. Such persons made up 20% of the population in Hong Kong.

22. An oddity in the forensic evidence was that no fibres of cross-transfers were found as between the clothes of the Applicants and the clothes worn by Madam chan.

23. Mr Kynoch submits that the trial judge's directions on circumstantial evidence were defective. That the whole of the summing up was lacking in balance and fairness.

24. He instanced matters which were to the benefit of D1 but which were not drawn, in their context, to the attention of the jury by the trial judge. Had they been properly emphasised they would have weakened considerably the case for the Grown. Those include that no motive of any kind had been advanced as to the reasons for the killing - and, says Mr. Kynoch it is more probable than not that a person who has no motive has not killed; that there was a complete absence of finger print evidence; that the allegations made by D1 in respect of the police were not properly canvassed before the jury; that there was no evidence of contact as between D1 and Madam Chan; that there was no direction, as we have already indicated, that the suit which D1 took to the laundry was irrelevant to the issue the jury had to decide; that there was a non-direction as to the meaning of alibi, and finally, that there was a failure of the trial judge to raise the possibility that D1 had been in contact in some way with Mr. Kuan before his death. He argues that, in the light of all these matters, the jury's verdict is unsafe and unsatisfactory.

25. Mr. Sedgwick on behalf of D2 submits that the trial judge should have acceded to a submission of no case made at the conclusion of the prosecution evidence; that when the trial judge was addressing the jury on the evidence of Dr. Clark and reminding them that there no evidence of transfer of fibres from D2 's clothing to the clothing of either of the deceased he failed to remind them of evidence that the fibre shedability of each item of D2's clothing was very high; that he failed to give the jury any clear and adequate direction as to common desk an and that the directions he did give were defective; that he failed to direct the jury that, in order to convict the two Applicants of both murders, they had to find a common design that both the male and the female victims would be killed or seriously injured and not merely that one of them would; and, finally, that the direction given on common design, even if it were right, was eroded by the later comments of the judge.

26. The main attack of both counsel then is, accepting no particular form of direction is required where the evidence is circumstantial, that the directions given here were inadequate to effectively place the matter before the jury so that they were appraised of the weakness as well as the strength of the Crown's evidence. The failure of the judge to act as he should have makes these convictions unsafe and unsatisfactory.

27. Mr. Kynoch concedes, in the light of McGreevy v. D.P.P. [1973] 1 All E.R. 503, that no special warning needs to be given where the evidence is circumstantial and he further concedes that the Crown does not need to prove motive in order to bring guilt home. But, he argues, where there is only circumstantial evidence and where there is no apparent motive the judge is obliged to give some form of warning to the jury as to the danger of their convicting on such evidence. Here this becomes of even greater importance because the direction on circumstantial evidence which as given was defective and was prejudicial and confusing in that the judge used some of the language of Pollock C.B. in R. v. Exall [1866] 4 F & F 922 at 929 but, by not repeating the whole of the passage, made what he said incapable of easy understanding by the jury. It was Mr. Kynoch suggested, a summing up which did not give the general impression of fairness which it should have.

28. But it must be remembered, in relation to the submissions of both Mr. Kynoch and Mr. Sedgwick, that the defence was a denial of being anywhere near either of the deceased on the day of the killing or, indeed, for some time before that. The Applicants were at pains to distance themselves as far as possible from any recent contact with either of the deceased. The jury were entiled to and undoubledly did view the forensic evidence in the light of that defence and summings up ard delivered in the context of the evidence in the trial and in the light of the manner in which the trial is conducted by both sides.

29. In his direction upon circumstantial evidence, at page 538, the trial judge said this:

" Circumstantial evidence may in many cases be more reliable that direct evidence because it depends upon the testimony of a number of witnesses on not very prejudicial matters which when considered together, may point in a certain direction whereas the direct evidence may be given by a witness who is prejudiced or biased in some way so that is why circumstantial evidence is sometimes considered to be more reliable than direct evidence.

I must tell you this, however. You can convict a person on circumstantial evidence, but you should not do so unless you are sure that the facts established are not only consistent with the guilt of the accused, but that they are also such as to be inconsistent with any other reasonable conclusion the inference of guilt must be the only reasonable conclusion in order that you may convict a defendant on it."

30. He then went on to refer the Chief Baron Pollocks "chain" as being only as strong as its weakest link and continued that a rope is composed of several strands. While one rope strand might he insufficient to sustain weight, three or more strands taken together might well do so.

31. We do not think those general directions on circumstantial evidence attract the criticisms levelled at them. They were not couched in language such as to confuse the jury.

32. The direction on in t1he light of the generality of the evidence, cannot he faulted. The use of the phrase "and can prove it" might better have been avoided but again in context, its use was colloquial and could not have been taken by the jury to indicate a burden on the Applicants.

33. The state of the forensic evidence before the jury at the close of the Prosecut1on's case was such that the judge, who had in mind Galbraith [198l] 73 Cr.App.R. 124 and its guidance as to principles on the existence or not of a case to answer, did not fall into error when he rejected the submission made on behalf of D2.

34. Here, while we accept, using hindsight, that some of the evidence to which he have been referred might have had greater emphasis laid upon it, the picture painted by the evidence for the Crown was of brutal murders perpetrated by two persons who had armed themselves with new knives and gloves, the latter more than probably used so that fingerprints would be unlikely. Two men were on trial before the jury who heard their evidence. Both of them denied recent contact with either of the persons killed yet evidence existed, capable of belief, that their clothes had been in recent contact with those of the male deceased or his with theirs. All this was placed before the jury in a manner which cannot be faulted.

35. The oddities: absence of motive, no evidence of cross contact between the clothing of the female deceased and those of the Applicants, the differences as to the time of the shop's closing in the neighhours evidence: were also sufficiently brought to the jury's attention.

36. The crux of this trial was the identity of the persons who killed. It was not incumbent upon the trial judge to raise speculative issues such as possible contact between an Applicant and a deceased without either of them actually killing or the separation of the common design into the killing of one or the other of the dead persons but not both. On presence they stood or fell together. Confession and avoidance could not properly be urged upon the jury on their behalf.

37. The forensic evidence was damming, no credible explanation having been offered as to how the contact it showed had come about in circumstances other than in the act of murder.

38. We do not find, after, anxious consideration of the argument of counsel, these convictions to be either unsafe or unsatisfactory. The applications are dismissed.