THE QUEEN v. WU CHI KEUNG

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Applicant was indicted before Addison, J. and a jury for murder. He seeks leave to appeal against conviction, the only ground now advanced being that the judge failed adequately and fairly to sum up the medical evidence for the defence.

2. The Deceased was a young woman who had been employed as a sales girl in a shop which had been opened in Kwai Chung only five days before the alleged offence. The Applicant, an Inspector of police, had been helping the shop owner with the financial side of the business and had frequently been to the shop. The girl's naked body was found beside a path in a country park near Sha Tau Kok in the New Territories. The body was badly burnt and was identified by her teeth, by her blood group and by a ring which was on a finger. The Crown's case was that she had been killed at that spot by blows on the back of the neck and that there had been an attempt to destroy the body and its shroud by pouring petrol over them and setting them alight. Although no weapon was produced in evidence, the suggestion was that the blows had been struck with something like an iron bar, and there was evidence that they had broken her neck, rupturing the spinal cord. It was common ground that the blows had been struck while the girl was not lying on the ground. An important part of the defence was that, by reason of his physical condition, the Applicant was incapable of striking such blows - at least without breaking his own back.

3. The defence called Dr. Harry S.Y. Fang, an orthopaedic surgeon of high repute. He described how, in December 1980, he had removed a tumour from the spine of the Applicant, in the course of which operation he had had to remove some segments of several vertebrae. The result was to cause instability of the spine, and the doctor's opinion was that in April 1985, when the girl was killed, the Applicant would have been unable, by reason of the severe pain it would have caused,to strike the blows necessary to break her neck and that, even if he had been able to do so, he would have been likely to break his own back. This view was formed in part from his observations at the time of the operation and in part from an examination of the Applicant during the luncheon adjournment on the day the doctor gave his evidence. That examination was characterized by Counsel for the Crown in his closing address as "cursory", a fact to which the judge alluded in his Summing-up in these words:

"....but you heard Mr. McNamara's criticism of Dr. Fang's 'cursory examination', as he so called it".

It is complained that the judge thus adopted counsel's epithet, an adoption which is said to be confirmed by the judge's subsequent reference to a "brief" examination.

4. Whatever may be said about the use of the word "cursory", it must be observed that the word "brief" was used in the context of the doctor's tentative opinion that the previous condition might possibly have recurred. The doctor had not seen the patient for about five years and his examination during the trial must necessarily have been carried out in circumstances which would have made it difficult to diagnose with certainty the recurrence of a tumour. He would hardly have embarked upon a second surgical operation on the strength of such an examination and to describe the examination as "brief" in that context was not unjustifiable.

5. Counsel for the Crown not only stigmatized the examination as "cursory", but he submitted that it was "quite outrageous" for the doctor to have stated "that the Accused was physically incapable of hitting the Deceased hard enough to have caused her death". That was strong language for a prosecutor to use, but it is not without significance that it produced no kind of remonstration from the defence at the trial. We are not persuaded that in the passage we have cited the judge did adopt counsel's language. It is true that he did not in words dissent from it, but he was not obliged to do so: it was for the jury to decide whether counsel's criticism was justified. The jury had heard the evidence and would not have been misled by what the judge said.

6. It remains to decide whether Dr. Fang's evidence as a whole was sufficiently left to the jury. Mr. Sedgwick submitted that there was "an improper synthesis of the evidence". The doctor's evidence was quite short and remarkably outspoken: the jury can hardly but have been impressed by it one way or another. The general effect of it was left to the jury by the judge in no uncertain terms. Part of his evidence was concerned with the ability of the Applicant to lift weights, a subject which was raised because at one stage it was thought that the girl might have been killed elsewhere and carried to the place where she was found. There was no evidence to support such a possibility, and at the end of the case counsel for the defence took no point on it. For the rest we are satisfied that the judge's references to Dr. Fang's evidence did not fall short of what the circumstances required. In particular, the judge did not ignore the comparative qualifications of Dr. Fang and the other medical man who gave evidence, whilst the doctors on both sides having based their opinions in part upon what they had been told by the Applicant it was not essential for the judge to remind the jury of the reasons given by the doctors for believing what the Applicant had told them.

7. The application is dismissed.

26th September 1986