HKSAR v. WONG YILE

CACC487/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 487 OF 1998

(ON APPEAL FROM HCCC 36 OF 1998)

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 2nd September 1998, the Applicant was convicted of robbery and murder following a trial in the High Court before Saied J. and a jury. He was sentenced to eight years and life imprisonment respectively for these offences and now seeks leave to appeal against conviction.

2. The first count alleged that the Applicant robbed Leung Hing-fat (the victim) of about $1,300 on 5th November 1997. The second count related to the same victim who it was alleged the Applicant murdered on 7th November 1997. Again, the location of the offence was at Peel street, and the events that led to death on 7th November occurred on 5th November 1997.

3. It was the prosecution's case that the Applicant climbed into the premises where the killing occurred, in order to steal. In the event, it became a robbery when he was caught on the premises by the victim who was then robbed and killed.

4. The victim was an odd-job worker at a construction site at Peel Street. He was discovered at about 7.30 a.m. on 5th November 1997 with severe head injuries, lying unconscious on the third floor of a building where the site foreman's office was. The victim slept there at night-time. The victim was taken to hospital but never regained consciousness before he died on 7th November 1997. The cause of death was a fractured skull and associated brain damage.

5. Shortly after midday on 5th November 1997, the victim's identity card was found discarded on the pavement about 50 metres from the construction site.

6. The Applicant was arrested by police officers at about 12.22 p.m. that same day because his movements had attracted suspicion. He was questioned as to whether he was an illegal immigrant. He had no identity card and he said nothing although he did nod his head. He was found to be in possession of $1,240.50.

7. It was noticed that the Applicant had a number of injuries to his face and body which looked like scratch marks. Medical evidence confirmed that some of these marks were consistent with scratches having occurred within a number of hours before the examination was carried out. Some were consistent also with the Applicant having been involved in a vigorous struggle, amongst other possible reasons.

8. The Applicant was questioned as to his involvement in the offences and he denied the suggestion. However, there came the time after the interviews had concluded that the Applicant indicated he had something to tell the interviewing officer. This officer was again called to the police station and, in a further interview, the Applicant said that he had beaten and injured a male on the third floor of a construction site and taken $1,000 odd from him.

9. A formal interview then commenced in the presence of a senior officer. The Applicant explained he had been looking for a place to sleep when he went to the construction site. However, he was discovered inside the room where the victim had been sleeping with the light on. This led to a fight in which the Applicant said, "I became angry and we two had a fight on the bed." He described how the victim hit him with a hammer and how he ran outside the room and picked up a wooden block which he then used to beat the victim. He went on to say:

"He fell to the ground and grabbed my legs with (his) hands. I then hit him with the wooden block for several blows. I hit his head with the wooden block."

10. The Applicant then described how he took away the victim's wallet and discarded an identity card from the wallet in the street. He then bought some clothes and changed in a toilet. Thereafter, following a haircut and a meal, he was arrested.

11. Following this interview, the Applicant participated in a video reconstruction of the events. He once again described how the victim used a hammer and how he had used a piece of wood to hit the victim back, in similar terms to the earlier admissions. In a further interview he identified to the police the piece of wood he had used.

12. At trial, the Applicant gave evidence along similar lines outlined in his statements to police, and he said that when he left the building he did not know the victim had been seriously injured. He explained that the reason he lied to the police in his original statements was that he was angry with them for the treatment they had given him and for failing to give him treatment for an injury to his leg. When cross-examined about the account he had given to police, he denied having said some of the things which were attributed to him in the statements.

13. There were two important aspects of the evidence which did not accord with the Applicant's account. Firstly, there were no significant signs of a violent struggle in the bedroom or in the living room where, if the Applicant's account was to be believed, the fight had occurred. Secondly, the only traces of blood were found in the living room area. This was carefully examined at pages 38 and 39 in the transcript of the summing up, where the judge was at pains to point out that the absence of blood in the bedroom did not necessarily indicate that a fight had not occurred in that room.

14. The essence of the defence at trial was that, having climbed into the premises in search of somewhere to sleep and having encountered the victim, he offered a cigarette to the victim and smoked one himself. Mr. Haynes, who appears for the Applicant and who also appeared for him at trial, has told us that there was evidence that both parties smoked a cigarette at some stage together. The victim had no clothes on, so the Applicant took hold of the trousers belonging to the victim to offer them to him. It was then that the victim became anxious because his wallet was in one of the trouser pockets. He snatched them away and then began to attack the Applicant by scratching at first and then with a hammer. The Applicant collected a piece of wood to defend himself.

15. Again, a significant piece of evidence given by Dr. Shum, who was called by the prosecution, was that none of the injuries sustained by the Applicant were consistent with hammer blows.

16. It is with this background that we can turn to the first ground of the Amended Perfected Grounds of Appeal. This reads:

"1. The trial judge failed to specifically remind the jury of two critical features of the defence case and the prosecution evidence that supported those points, namely:

(a) That there was a second cigarette butt at the scene.

(b) That all the serious fissure fractures may have been caused by a single forceful blow struck when the protagonists were standing face to face, and the significance of that evidence with regard to any blows struck at a later stage of the conflict."

17. The evidence regarding the cigarette butts was, in our view, of peripheral significance. The judge reminded the jury of some of the evidence given by the Applicant, that he had offered the victim a cigarette, and in addition the jury had the interviews of the Applicant amongst their papers. In Exh.P78 there is mention of a cigarette being smoked by the Applicant but this reference, for what it is worth, is indicative of the Applicant having smoked a cigarette on his own before encountering the victim. The judge reminded the jury of the finding of one cigarette butt (Exh.P11) with the victim's DNA upon it. This came from the bed. The jury also had photographs of the murder scene, which included a photograph of a second cigarette butt which was somewhere away from the bedroom. The Scene of Crimes Officer, But Pak-lam, was cross-examined about this by Mr. Haynes who has reminded us of the passage which is contained at pages 139 and 140 in the appeal bundle. There is no need to read this extract. It is apparent that little significance was attached to it by the Scene of Crimes Officer because it was not even seized as an exhibit. Thus, an omission to deal with it in summing up is unsurprising. Indeed, if it had occurred to Mr. Haynes as something so important that it should not have been omitted, he would, of course, have been at liberty to have made mention of this to the trial judge after the jury had retired, but he did not do so.

18. As to the second criticism in ground 1, the judge dealt in summing up with the medical evidence which was given by Dr. Beh. At page 11H, he said this:

"He commented that the fissure fractures of the skull were the likely result of the impact of the skull with or against a hard flat surface. The likely site of impact, he said, was over the left side of the head, and involving the left ear. He said that the brain showed extensive injuries which explained the fact that the deceased had remained comatosed.

Looking at photograph 94/1-3 and the blood stains in the centre of the floor, the doctor said that if it was rough concrete floor, it would cause the facial abrasions.

About the three fissure fractures of the skull, the doctor said that those could be caused by one blow with a broad surface, and if the surface was not broad then more than one blow, but minimum of two, would be required to cause those fractures.

He added that it all depended on how heavy the blows were. Speaking of the force required to cause the fissure fractures, he said that it would have to be a very solid contact to cause fractures to the skull.

He said that the wooden piece Exhibit P19, the shorter one measuring 45 x 4 x 6.5 cm, could cause the head injuries if struck with its board surface, and one such blow could cause the three fissure fractures.

The longer wooden piece, Exhibit P20, 57 x 3 x 7 cm, he said that as with the previous exhibit, if struck with its broad surface, it too could cause the three fissure fractures with one blow, whereas with the narrower surface two or three blows would be required. The doctor said that assuming the wider surface of either was used with lesser force, it might be that multiple blows would cause those fractures."

19. When dealing with the Applicant's evidence about what he had done to the victim, the judge reminded the jury at page 49R as follows:

"As you will no doubt remember, not only did the defendant admit that he struck the deceased at least one blow on the head with the wooden piece, he admitted also that he continued to hit him when he was on the ground, defenceless, grabbing his feet. What then was he protecting himself from? It is a matter for you to consider in the light of the rest of the evidence as a whole, taking full account of the credibility that you place on the defendant, and I have dealt with that. If you conclude that he was or may have been acting reasonably in self-defence, you will find him not guilty of count 2 of murder."

20. This was a direction that accorded with the evidence. Clearly, Dr. Beh's evidence of what may have been done to the victim to cause his injuries had to be looked at in the light of what the Applicant admitted he did to the victim.

21. There is in ground 1 no substance and it fails.

22. In ground 2, Mr. Haynes submits as follows:

"It was essential (in view of the quantity of evidence supportive of the defendant's version of events) to give the jury a specific direction (separate from provocation) that lack of intent to cause really serious harm may sometimes arise where initially defensive action became excessive or unreasonable, i.e. that if self-defence (and provocation) were excluded the jury must still go on to consider whether the defendant had injured the victim without any specific intent to cause him really serious harm. The direction at page 51I-J is wrong in law. It is a critical misdirection because it undermines a line of defence which, until that direction, was properly available to this accused. And it diverts attention away from the more relevant question of specific intent (referred to but not dealt with at p.51Q-S). This misleading direction was repeated at p.53H-J. The result was that the defence case was not correctly stated to the jury."

23. The judge in his directions to the jury outlined three possible defences to murder which were open to the Applicant. He dealt in terms with self-defence as a complete defence to murder and with provocation and lack of intent as possible reasons for alternative verdicts of manslaughter. It has been necessary to look with care at the directions given as to the alternatives as it is these which are the subject of criticism in this ground.

24. Obviously it is important firstly to look at what the judge said at page 51 where complaint is made of the directions given to the jury.

25. Having directed the jury as to provocation in model terms the judge, at page 51F, to put in context the complaint made by Mr. Haynes in the second ground, said this:

"Because the prosecution must prove the defendant's guilt, it is not for the defendant to prove that he was provoked. The prosecution must make you feel sure that the defendant was not so provoked before you can convict him of murder. It is for the prosecution to make you feel sure that the defendant was not so provoked. If you find that they have succeeded in doing that, then you will find the defendant guilty of murder.

If you are satisfied that he was provoked, or if you think that he may have been provoked, then you will convict him of manslaughter. There is a difference. Self-defence is a complete defence to murder. If self-defence succeeds, the charge is out. With provocation, it reduces the crime of murder to manslaughter. That is the difference, and it is all based on the intention. In murder, there must be intention to kill or cause serious bodily harm. In manslaughter, it is unlawful killing without that intention.

If you are satisfied that he was provoked or if you think that he may have been provoked, then you can convict him of manslaughter; and of course, the other basis for finding manslaughter will be lack of intention to cause death or serious bodily injury, as he has maintained throughout that he did not have the intention to kill."

26. The summing up had specifically dealt with self-defence. No criticism is made of the directions given in this regard. The summing up, at the stage when this passage cited was given, had also covered the law relating to provocation and the further alternative of manslaughter by reason of lack of intent. In regard to the latter, on the preceding page of the summing up, the judge had said, at page 50G:

"If you think the prosecution have disproved or negatived self-defence, then you will reject self-defence - it does not exist, it is gone - in which case you will then go on to consider whether, in the circumstances of this case, where, if you so find, the elements of murder proved, you go on to find whether there was provocation given to the defendant so that the verdict might be one of manslaughter.

If self-defence has been disproved - negatived - it is out. Right? But then if you find that all the other elements of murder have been proved - are present - then you will go on to consider whether there was provocation given to the defendant so that the verdict could be one of manslaughter.

Now, manslaughter is unlawful killing, without the intention to kill or cause serious bodily injury. The intention that is required for murder is not required for manslaughter. It is unlawful killing, but without that kind of intention."

27. The judge then gave his legal directions on provocation. It is in this context that the directions complained about were given. Although the judge at page 51M did say: "With provocation, it reduces the crime of murder to manslaughter. That is the difference, and it is all based on the intention", this has to be read in the full context of the judge's directions. The jury could not, in our judgment, have failed to comprehend that provocation and lack of intent were alternative bases for manslaughter verdicts. This had just been explained to them and was again emphasized immediately after the offending words on page 51 which have already been read. There is, in any event, no question but that the judge had twice during his summing up made plain to the jury that an intent to kill or cause really serious injury had to be proved before murder could be established. This had been done at page 7E-K. It had also been spelt out in the clearest terms and emphasized again at page 48R to 49D immediately before dealing with self-defence and the two alternative bases for manslaughter.

28. The skull and brain injuries suffered by the victim were extremely serious. There were extensive fractures and the whole scalp was bruised. If, as the jury found, self defence had to be rejected, the only defences which were left were manslaughter by reason of lack of intent and provocation. With injuries such as these, it would be hard sensibly to imagine that the blow or blows which caused such extensive damage to his skull were not done with an intention to cause, at the very least, serious bodily injury.

29. This brings us finally to what it is submitted was the judge's misdirection at page 53H-J. Before dealing with this, the judge, perhaps unwisely and certainly unnecessarily, but no doubt concerned to repeat yet again his directions on provocation so that they would be practically the last thing the jury would hear before they retired, began all over again his directions starting on page 52 almost immediately following the passages earlier cited on page 51. This ended with the passage that Mr. Haynes has particularly criticized at 53H and, to quote what the judge said, he told the jury:

"Should you, in the end, find that provocation has been negatived by the prosecution so as to make you sure that the defendant was not provoked in terms of the legal definition, only then you will find him guilty of murder. On the other hand, should you find that the defendant was provoked by the actions of the deceased so that he lost his self-control, or that you are left in any doubt as to this, then you will find him not guilty of murder, but guilty of manslaughter."

30. This was not a misdirection in itself but Mr. Haynes complains that the directions "swamped" as he put it, his principal defence, at least as he perceived it, which was one of lack of intent. He pointed out that the judge at this final stage made no further reference to lack of intent as a basis for finding the Applicant guilty of manslaughter.

31. There was no need to direct again upon this aspect. This had only just been done. In any event, we are quite satisfied as we have already indicated that no jury hearing this summing up could have been in any doubt that there were two alternative bases for returning a verdict of guilty to manslaughter.

32. For all of these reasons, we find that there is no substance to any of the matters argued on this ground. There are, furthermore, no grounds for stating that the jury's verdict was unsafe or unsatisfactory.

33. Accordingly, we refuse leave and dismiss the application.