THE QUEEN v. PANG BING YEE

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. In the early morning of the 20th July 1981 Yeung Ka Po, a girl aged two years and three months, was certified dead at Kwong Wan Hospital.

3. Pang Bing Yee, a child minder, was indicted upon a charge of murder and, after trial before Mr. Commissioner Leathlean, she was on 26th July 1982, found guilty by the jury of that crime.

4. There had been indicted with her her husband Leung Hoi but on a count of manslaughter. He also was convicted. This court is not now, and has not been, concerned with matters relative to him.

5. No timeous application was made by Pang Bing Yee to appeal against her conviction. On 17th November 1983 His Excellency the Governor referred - under the provisions of section 83P(1) (a) of the Criminal Procedure Ordinance, Cap. 221; "the Ordinance" - the case to the Court of Appeal to be heard as an appeal. The grounds filed on behalf of the appellant contended that the trial judge had erred in ruling that the expert evidence of Dr. Green and Dr. Cantley was not admissible and, second, the trial judge had erred in failing to direct, or adequately to direct, the jury on the provisions of section 65A of the Ordinance.

6. The appeal was determined on 9th May 1984 when it was dismissed - [1984] HKLR 298.

7. The sentence of death passed on Pang Bing Yee was, on 10th September 1985, commuted to 25 years imprisonment of which she had by now served over 9 years.

8. On 6th June 1990 Pang Bing Yee again petitioned His Excellency and, on 14th July 1990 His Excellency acting for the second time under the provisions of section 83P(1) (a) of the Ordinance referred "the whole of the said case" to the Court of Appeal. In other words a second full appeal providing the defence with a bite at an entirely new cherry.

9. Fresh grounds were then filed which, for the first time, took points available both at the trial in 1982 and at the appeal in 1984. The first is that the trial judge erred in directing the jury to disregard the issue of provocation "while there is sufficient evidence of provocation fit to be left to the jury to consider". There then follow seven particulars of alleged provocation.

10. The second resulting from the first, alleged that the trial judge, in consequence of failing to leave provocation to the jury, also failed to give them the necessary directions including a suggested direction on Pang Bing Yee's "characteristics" relevant for the jury's consideration of the issue.

11. The third suggests that the trial judge should, in giving a direction on provocation, - which, of course, he did not - have brought to the attention of the jury "other relevant circumstances which aggravated the provocation".

12. The fourth, and last is, effectively, a roll up ground that the trial judge erred in failing to leave manslaughter as a verdict to the jury.

13. There was also before us, under the provisions of section 83V of the Ordinance, a motion that this court do receive the fresh evidence contained in a report from Dr. Green dated 21st February 1989. This is basically the same point that was taken in 1984 and which this court then rejected. It was not proceeded with.

14. We are aware that this second appeal emerges from what was originally a petition for clemency to His Excellency. Those who advise His Excellency on such matters drew the attention of the appellant's legal advisors to, in particular, a decision of the English Court of Appeal to which we shall refer later. It seems to have been suggested to them that a second petition be filed seeking a referral to this court and this was what was done.

15. We note that counsel who appeared for the appellant at trial expressly disclaimed provocation. This may well explain why - and he was led in the original appeal by Mr. Martin Lee, who also conducts this second appeal on behalf of the appellant - provocation, and the necessary directions, was not raised in the course of that first appeal.

16. The evidence at trial was that the dead child was an unwanted baby whose mother was a dance hostess. She got in the way of the mother's life and was farmed out to various foster parents and child minders. The appellant and her husband came on the scene on 18th June 1981 when, the previous fosterage arrangements having broken down, they took over the care of the girl. They were to be paid $1,000 per month and expenses and the child was to live with them. That payment played a significant role in their finances as neither the appellant nor her husband were well off. The child, not surprisingly, was a difficult one. A previous foster mother had described her as "retarded" - probably a better word would be "backward". The appellant, who was then aged 26, and her husband, who was then aged 60, had a seven year old child of their own. In June 1981 the appellant was again pregnant.

17. There was evidence from a close neighbour that, after the child went to live with the appellant, beatings were administered to the child with a stick. Several of those beatings took place on the days immediately prior to 19th July. As the neighbour put it, in reply to the question "Did these beatings strike you as being unusual,"

"Of course, it was unusual because she beat her every night."

18. He had considered informing the police but did not do so because he and the appellant were neighbours. On the Sunday prior to the death he had heard the appellant say to the child "I'm going to use some hot water to scald you to death." He heard the child crying.

19. On the 1st July another neighbour had heard the child crying and had heard the appellant scolding the child. At that time she had seen the child, who was wearing only a pair of shorts. She saw no marks of injury, or bruises, on her.

20. The appellant in statements made to the police said that, having taken the child in, she found the child failed to indicate when she wanted to go to the toilet and refused to take food. She took only one or two mouthfuls of food every night and that mainly liquid foods like milk. She refused solids. The appellant became angry and struck her with her hands. She spoke to the child's mother without receiving any assistance. As her dislike of the child grew she struck her the more and started using a stick to beat her.

21. In evidence she said that the beatings started about two weeks after the child had been taken into her care. The tempo of the beatings increased during the last few days of the child's life. Beatings with a cane became more frequent lasting about 10 minutes on each occasion. The appellant admitted that, at one stage, she broke a cane in the course of a beating.

22. She found the child, who was unable to talk, totally unresponsive to any sort of treatment, though for the first ten days when the child was in her custody and that of her husband she was able to cope without the use of any physical correction. It was only after about two weeks that her patience ran out and she chastised her. The appellant was particularly exercised by the incontinence of the child who refused to sit on that which she described as the "spittoon", by which we take it she meant a form of toilet commode. She had to force-feed the child because of the child's reluctance to eat. When asked to comment on the pathologist's evidence that most of the injuries he found on the dead child were very recent, being no more than four days old, the appellant said:

"I was very much annoyed because I had a discussion with her mother and asked her permission to feed the child with milk, and she refused. The living conditions there was (sic) very poor, and furthermore I was pressed by my principal tenant to pay her rent, and I was pregnant."

She accepted that the beatings had increased during the last days of the child's life because she, the appellant, was very annoyed at the outcome of the discussion with the mother.

23. The flat in which the appellant and her husband lived was a small one and did not have a window. It was necessary to keep the door open for the purpose of ventilation. The $1,000, which was the care money, had not been paid in advance by the mother and this left the appellant and her husband in difficulty in paying the rent. She had later been paid a first instalment of the care money of $500 on the 28th June and a further instalment of $700 on the 11th or 12th July.

24. The appellant also thought the child was deaf because she did not react to the telephone nor did she learn to speak despite the appellant's daughter being told to give her lessons.

25. On 19th July, the day before the child was taken to hospital, the appellant's husband was out celebrating a festival and at about 8.00 p.m. the appellant attempted to feed the girl with congee. Her own daughter was present at that time. The child refused to eat and when there was food inside her mouth she kept her mouth closed, refusing to swallow for over ten minutes. Having told the child to spit out the food, she re-fed her but the child still refused to swallow. The appellant got angry and scolded her. The child then soiled herself. The appellant said:

"I was very angry and I scolded her and asked her why she did not like to tell people that she was going to obey a call of nature. I was very angry and I then asked my daughter to go to the drawer to get a pair of shorts, and I changed her shorts for her."

The child still refused to eat and, although she had soiled herself shortly before, she had not urinated. The appellant, as she put it, "made her to urinate by asking her to sit on a spittoon."

26. While the child was sitting on the spittoon she used her hand to feel the cooking pots, and her hand became dirty. The child, in the course of playing with the pots, upset the spittoon into which she had urinated. The appellant said that she then cleaned up the floor after which she sat there watching TV and asked her daughter to get her a cup of water.

27. The appellant was asked to explain a statement she had given to the police in relation to this incident and in which she had told the police that "In a fit of rage I hit her thigh with hands first". She agreed that that was true. She had gone on to tell the statement taker that she kicked the child's private parts once. She accepted that that was also true. She described herself as being very impulsive when she kicked the child. In her statement she then said that she told the child to go to bed and, in the course of the night, hear a loud sound which she discovered to be the sound of the child falling onto the floor. The child was unconscious and she sent her to hospital.

28. The appellant maintained the story of the fall in her evidence in chief which may well explain why provocation was expressly disclaimed by her counsel. Further, the appellant denied that, when she kicked the girl in her private parts, she had any intention to either kill or cause severe, grievous bodily harm to the child. She concluded her evidence in chief by saying that when the police told her the child had died she felt very sorry. She also said that she had sought medical assistance for herself because of her pregnancy. She had told the doctor that she was very "temperamental" while pregnant. She had been so when having the first child. She could not control herself. She felt, after the event, that striking the child was wrong. With her own daughter she had had no difficulties.

29. When asked in cross-examination why her experience had differed from that stated in the evidence given by a previous minder, who had said that the dead child ate "greedily", she responded that she did not know whether the child was eating greedily or not before she came into her care but that she had never eaten greedily while in her care.

30. She was strongly pressed in cross-examination by counsel then appearing for the Crown in relation to the incident on the 19th and, in answer to him, she accepted that she had slapped the child on her head causing her to bump against the wall and to fall down. She had hit her again that evening and kicked her but did not remember the sequence of the blows. She had used force but did not know how much force she used. She did not "know" as she put it - we think she meant realise - that her actions could lead to serious injury to the child. And again that she was "so frustrated so angry that I did not know how much force I used." If she had realised that the result was so serious she would not have hit the child.

31. When shown the photographs of the body taken after death she accepted that she had, before the death, seen bruises on it, but only those on the face and not those on the chest for the child was always wrapped up with a towel when bathing.

32. There was evidence from a medical doctor who operated a clinic in Hing Hin Street, San Po Kong that he had on three occasions treated the deceased child for influenza. The last of those occasions was on 4th April 1981. He found no unusual marks on the body of the child at that time nor did he make any record that she was suffering from malnutrition. He would have recorded such a condition had he noticed it.

33. The doctor on duty at the Kwong Wah Hospital on 20th July at about 5.00 a.m. spoke of being brought to see a child in Casualty Unit. The child was then dead. There was a haematoma on the forehead and multiple bruises on the chest and abdomen and a clot of blood on her face. He particularly noticed a bruise in the pubic area which would have been about one to three days old. The blood clot on the face was fresh. He received a history of the child having fallen out of bed but he formed the view that it was impossible for a child to have a one to three days old bruise on the body caused by a recent fall from a bed. He was not, however, prepared to exclude the possibility that, apart from other factors which caused the injuries, there might also have been a fall from a bed.

34. The post-mortem examination was carried out by Dr. Yu, Senior Forensic Pathologist working then in the Kowloon Pathology Headquarters and employed by the Hong Kong Government. He produced his post-mortem report, copies of which were, with consent, available for the jury. There were also photographs of the body to which he correlated the contents of that report.

35. He started by stating that the body was that of a well-nourished child. He then went on to state the injuries he found on the head and face: a recent abrasion in the middle of the upper forehead; a reddish bruise on the left upper forehead; a bluish bruise on the middle lower forehead and a recent abrasion on the right forehead; a brownish-blue bruise on the right eye-lid with a recent linear abrasion on the right face together with a bluish bruise; two linear abrasions on the right face with extensive purplish bruising of the right ear and a laceration at the top of the junction of the right ear and scalp; a bluish bruise on the inner corner of the left eye and a small bluish bruise on the left upper eye-lid, a recent abrasion on the left face and another recent abrasion in front of the top of the left ear; reddish bruises and two small recent abrasions just behind the left ear with a few small reddish bruises on the left ear; a bluish bruise and three small recent linear abrasions just above the upper lip; bluish bruising of both lips.

36. In addition there was an old tear at the junction of the inner surface of upper lip with the gum involving the frenulum and with purplish bruising around it; three recent linear abrasions on the front of the chin; a recent abrasion and purplish bruise on the lower aspect of the chin and a small abrasion of the left front of the upper neck.

37. The trunk: multiple small purplish bruises on the front and sides of the chest; an old scar on the left front of the upper abdomen; purplish bruising on the navel; seven scattered small purplish bruises on front of the lower abdomen; reddish bruises on the pubic region and the inner aspect of groins; reddish bruises on the left upper back; reddish bruise on the middle back; reddish bruise on the middle lower back; a recent linear abrasion on the right lower back; reddish bruises on the left and right buttocks. There were no injuries to the private parts.

38. Limbs: on both the upper and the lower limbs were a multiplicity of bruises, either blue or purple.

39. Internal examination: extensive deep bruising of the scalp at the top and right side - the skull was intact -; a small amount of epidural haemorrnage at the left posterior cranial fossa - the brain was pale and slightly swollen; the right lung was collapsed with bruising of the front of the middle lobe; bruising of the middle front and back of the left lung with a small laceration at the root of the left lung; a bruise at the back of the left auricle of the heart; deep bruising of the middle front of the abdominal wall; blood clots were present in the abdominal cavity; a rupture of the inferior vena cava just above the diaphragm which itself was also ruptured; rupture of the liver.

40. He had found two shallow ruptures at the back of the junction of the right and left lobes of the liver, with another rupture in the upper back of the right lobe of the liver which caused a tear to the inferior vena cava.

41. He also found extensive bruising of the kidneys at the back; bruising around and inside the adrenal glands; extensive bruising of the mesentery of the transverse colon and upper parts of the small gut; bruising of the stomach and the lesser curvature. There were no bone fractures.

42. The cause of death was the rupture of the liver and of the inferior vena cava. The doctor went on to explain that the inferior vena cava is a very large vein present inside the abdominal and chest cavity. This large blood vessel lies along the spine in the abdomen and runs through the liver. Rupture of it is closely related to rupture of the liver.

43. The doctor was asked to give an indication of the age of the bruises. He explained that bruises could be aged, roughly, by their colours: reddish or purplish bruises are less than two days old; bluish bruises are less than four days old. Sometimes colouration could be unreliable. In relation to the bruising of the navel, where there was more than one bruise and with different colours, it was the doctor's evidence that those bruises would have been caused on different occasions. Generally, 90% of the bruises were less than four days old.

44. As to the force used, he was of the view that while the bruising of the pubic area required more than a moderate degree of force, some of the other bruises found resulted from the use of force of that degree.

45. The doctor, though unable to be precise, was of the view that death would have resulted from the rupture of the liver and of the inferior vena cava within three to four hours. The child, upon receiving those injuries, would have had severe pain over the abdomen, gone into shock and, while capable of moving, would prefer to stay still because of this severe pain. The doctor expressed the opinion that all the internal injuries were less than two days old. He accepted that some of the external and the internal injuries might have been caused by falling over or out of a bed. He thought that the bruising of the kidneys, the liver and the lung was unlikely to have been caused by a fall from a bed and that it was nearly impossible for the rupture of the liver and of the inferior vena cava to have resulted from such a fall. The deep bruising of the skull might have.

46. When he made reference to "an old linear scar" or "an old tear", those on the left face and the left trunk were over six months old. The tear at the junction of the lip and the gum was likely to have been one to three weeks old; the one at the upper abdomen was over six months old.

47. The jury were clearly of the view - a view they were entitled to take - that death was not caused by an accidental fall from a bed.

48. It is clear from the medical evidence and the general condition of the body that, while the dead child had received beatings over a period of at least ten days prior to death, the force, severity and number of those beatings had increased considerably in the two days prior to death.

49. We accept as a matter of principle that, even where the defence does not raise the issue of provocation, if there is evidence in the course of the trial which does admit of provocation being left to the jury then the trial judge is under a duty to take that course, just as he is with any defence which emerges from the evidence. A judge is, of course, placed in great difficulty, as was the commissioner here, when the defence expressly disclaims any reliance on provocation.

50. Section 4 of the Homicide Ordinance, which is in the same terms as section 3 of the Homicide Act 1957, provides:

"4.    Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

51. In Phillips v. The Queen (1969) 2 AC 130 (P.C.) Lord Diplock said at p.137C-D:

"The test of provocation in the law of homicide is two-fold. The first, which has always been a question of fact for the jury assuming that there is any evidence upon which they can so find, is 'Was the defendant provoked into losing his self-control?' The second, which is one not of fact but of opinion, 'Would a reasonable man have reacted to the same provocation in the same way as the defendant did?'".

52. The Privy Council was there considering the Jamaican equivalent of our section 4 of the Homicide Ordinance.

53. In R. v. Camplin (1978) AC 705 (H.L.) the House had for consideration section 3 of the Homicide Act of 1957. There Lord Diplock said at page 716 - and it is this statement of the law by their Lordships House which bases the appeal before us -:

"Secondly, it makes it clear that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not of law: whether a reasonable man might have reacted to that provocation as the accused did."

54. Great emphasis has been laid on the recent English case of R. v. Doughty (1986) 83 Crim App R 319. We have little doubt that those who, with the certainty of hindsight, advised the Governor did so on the basis of that which was held in that case bearing in mind the provisions of the Homicide Ordinance, of section 65A of the Criminal Procedure Ordinance and the words of Lord Diplock in Camplin.

55. In Doughty, Doughty's wife gave birth to her first child by Caesarean section on January 14, 1985. She was advised to remain in bed upon discharge from hospital. Doughty looked after his wife and the baby and ran the house. He was a conscientious father and cared for the baby well. But he became fatigued. On 31st January 1985 his wife found the baby dead. The death was caused by severe injuries. Doughty admitted responsibility and was charged with murder. In evidence at trial he said that during the night he was very tired and the baby had cried persistently despite being fed, changed and other attempts which had been made to settle him. As a result Doughty lost his temper and had tried to silence the child by covering his head with cushions and kneeling on them. In consequence of this the baby died.

56. At the trial counsel for the appellant had made a submission to the judge that he ought to leave provocation to the jury. This the judge refused to do. He considered that the perfectly ordinary, certain and natural episodes or events in the life of a 17 day old baby not to come within the meaning of the phrase in section 3 of the Homicide Act 1957 "Whether by things done or words said or by both together". He was further of the view that:

"civilised society dictates that the natural episodes occurring in the life of a baby only days old have to be endured and cannot be utilised as the foundation of subjective provocation to enable his killer to escape a conviction for murder."

Doughty was convicted of murder.

57. On appeal it was held (p.320):

"That since there was evidence which linked causally the crying of the baby with the response of the appellant, section 3 of the Homicide Act 1957 was mandatory and required the judge to leave the issue of the objective test of provocation to the jury."

58. The English Court of Appeal found that there had been a misdirection, quashed the conviction of murder and substituted one of manslaughter. In so doing it applied the dictum of Lord Diplock in Camplin.

59. It had been unable to accept the reasoning of the trial judge. Of it Stocker L.J. said, in delivering the judgment of the court, at p.326:

"The reasoning which the learned judge gave, understandable though it was, involves, in our view, adding in to section 3 words which are not there, presumably by way of restriction. It is accepted by Mr. Klevan that there was evidence which linked causally the crying of the baby with the response of the appellant. Accordingly, in our view, it seems inevitable that that being so the section is mandatory and requires the learned judge to leave the issue of the objective test to the jury."

60. Stocker L.J. went on:

"Mr. Klevan also referred us to what might, in shorthand, be called the 'floodgates proposition', that if the learned judge's direction was wrong it opens up the possibility that in any case in which there is a battered baby allegation and the baby dies, the argument based on provocation may be raised. We feel that even if that submission was right it could not be allowed to dissuade us from putting a construction on section 3 which, in our view, its wording plainly constrains. We also feel that reliance can be placed upon the common sense of juries upon whom the task of deciding the issue is imposed by section 3 and that that common sense will ensure that only in cases where the facts fully justified it would their verdict be likely to be that they would hold that a defendant's act in killing a crying child would be the response of a reasonable man within the section. That matter is, in our view, imposed by Parliament upon the jury, not upon a judge, and the common sense of juries can be relied upon not to bring in perverse verdicts where the facts do not justify the conclusion."

61. We must accept, as a matter of principle, that, as Lord Diplock put it in Camplin:

"... if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control in consequence of some provocation however slight it might appear to the judge,..."

then provocation must be left to the jury.

62. Here, Mr. Lee would have us find that "slight" provocation on the evidence to which we have referred and combined with the characteristics of the appellant herself. We accept that the appellant was pregnant and she testified, when in that condition, that she became, as she put it, "temperamental" and was unable to exercise control. We accept that the family was in financial difficulty and we accept that there was another child of the household to be taken care of. We accept that the family lived in very poor housing conditions and in close proximity one with the other. We accept that the child was a difficult child due, no doubt, to the appalling conditions in which she had been reared to the age of two and a quarter. We accept that the appellant was becoming more and more annoyed with the child because of that behaviour. Further, she had in evidence stated that she had been severely beaten and ill treated by her own mother during her childhood.

63. Mr. Lee has urged upon us that the overturning of the chamber pot - or spittoon as the appellant called it - was the breaking point for the appellant, given her characteristics. He urges upon us that this culmination was provocation within the meaning of section 4 and was causally directly linked to the response of the appellant. This was, he says, enough evidence to bring this case within the terms of Lord Diplock's dicta and to answer the objective test. It would then have been for the jury - and it should have been left to them - to form their own answer to the subjective test.

64. Bearing all that in mind we are not overly surprised, given the way the case was run before him, that the Commissioner did not take it upon himself to leave provocation to the jury. The issue, of course, is: should he have done so.

65. The evidence as to the time of death was not precise. It is therefore impossible to say that death could not have resulted from one or more of the blows that the appellant said that she had inflicted on the deceased on the evening of 19th July.

66. Had the evidence concerning the incident been confined to the appellant's testimony in chief, in which she had given an account of what had happened on the night of 19 July, and had agreed that what she had said in her statement to the police was true, we would have been disposed to accept that nothing which she said in her evidence had established a causal link between the alleged provocative behaviour of the deceased and the act of the appellant which caused the deceased's death. The violence which the appellant said that she had inflicted on the deceased as a consequence of the alleged provocative behaviour consisted of hitting her on the thigh with her hand and kicking on her private parts once. Neither of these blows was inflicted on the deceased's abdomen in the region of her liver.

67. However, the evidence did not stop there. The answers given in cross-examination brought the matter a good deal further. There was, emerging from this, a loss of control evidenced by repeated beatings a short time before death.

68. In the light of all the evidence it was, in our view - a view come to with great reluctance by one of us, in particular given the very late second thoughts by all concerned with this matter and the course of conduct of the appellant - incumbent on the commissioner to leave the defence of provocation to the jury. Had he done so, and assuming that they had concluded that the appellant's account of what had happened might reasonably be true, we think it was unlikely the jury would have thought that the provocation was enough to make a reasonable woman do as she had done. However, we are unable to say that they would inevitably have rejected that conclusion.

69. That being so, we are of the view that this appeal must succeed. We would quash the conviction for murder and substitute a verdict of manslaughter.

70. For myself I would add this: the delay in the delivery of this judgment in a difficult case is one which lies solely at my door and is one which I regret.

71. We are agreed that, subject to any submissions counsel may wish to make, the sentence to be imposed should be such as to effect the appellant's immediate release.