WONG SAI MING v. R.

1994, No. 317
(Criminal)

H E A D N O T E

The Court of Appeal issued the following reminder to trial judges. When on a murder charge the jury is left with more than one basis for convicting of manslaughter instead, they should be told in the course of the smming-up that in the event of their returning a verdict of manslaughter, they would be asked to state, through their foreman, the basis of that verdict. And in the event of such a verdict, they should be asked to so state the basis thereof.

IN THE COURT OF APPEAL

1994, No. 317
(Criminal)

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J U D G M E N T

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Bokhary JA (delivering the judgment of the Court):

1. On July 13 last year, in the conference room of a primary school in Kowloon, a quarrel and then a struggle took place between this applicant, who was the headmaster of that school, and a woman, who was an accounts clerk at that school. In the course of the struggle, he rained blow after blow on her head with a lump of concrete which was present in the room as a consequence of some renovation work which had been going on. He then strangled her to death with his hands. And then he drove her dead body to a car park, where he doused it with petrol and set it on fire, to hide what he had done.

2. His activities at the car park attracted, unfortunately for him, the attention of two members of the public who telephoned the police.

3. As he was driving away from the car park, he was approached by police officers. He tried to escape in his car, which struck and injured one of the officers.

4. In the course of his attempt to escape, he drove against the flow of traffic, and eventually collided with a taxi. That is when the police caught him.

5. A number of statements made by him to the police were admitted at his trial for murder before Leong J and a jury.

6. By their verdict delivered on June 3 this year, the jury convicted the applicant not of murder but of the lesser offence of manslaughter.

7. Passing sentence on the 6th of that month, the judge sentenced the applicant to nine years' imprisonment. The applicant now seeks leave to appeal against sentence.

8. Realistically - and both sides before us accept this - the verdict of manslaughter could only have been returned on the basis of provocation.

9. It is true that provocation was not the only basis left by the judge to the jury for convicting of manslaughter rather than murder. An absence of intent to kill or cause grievous bodily harm had also been left to the jury as a basis for convicting of manslaughter. The jury should have been told - but were not told - that upon their return to court, in the event of their returning a verdict of manslaughter, they would be asked to state through their foreman the basis of that verdict. And upon the jury returning their verdict of manslaughter, they should have been so asked what the basis of that verdict was. That did not happen either.

10. All of that we mention as a reminder to trial judges of what ought to be done. But the omissions in the present case do not really matter. They do not matter because provocation was in all the circumstances the only basis on which the jury could reasonably have returned a verdict of manslaughter, as both sides accept.

11. The account which the applicant gave in the witness-box of the struggle, which account the jury must at least have felt unable to exclude beyond reasonable doubt, was that the deceased had provoked him both verbally and physically. The physical provocation, on the applicant's account, took the form of a violent attack by her upon him. To understand the verbal provocation, there is something else which we must first say; and it is this.

12. If one goes by the applicant's statements to the police, he and the deceased had, over a period, stolen a considerable amount of money from the school and shared it, the larger share going to her.

13. According to those statements, he had long been a reluctant partner in such crime. He had been trying to get out. But he had been kept in by the deceased. She refused to stop. And she had a hold over him since he had allowed himself to become involved.

14. In the witness-box, he told a different story. It was to the effect that he had known that the deceased had been stealing money from the school, but that, although he did not report it, he had not himself gained from it. He had made repeated attempts to get the deceased to stop. But she would not.

15. Now, one way or the other, there was the quarrel and struggle which resulted in him killing the deceased under provocation. And in the light of what we have said about the financial background to this matter, the verbal provocation can be indicated by simply stating that it was in the form of threats by her to put the entire blame on him for the stealing.

16. One thing has to be said straightaway. In these cases, justice requires that anything that can reasonably be taken in favour of the accused person must be so taken, because it is he, after all, who is on trial and facing punishment. An unavoidable by-product of that is this. Very often, some very harsh things are said about the victim, who is not there to tell his or her own story. Therefore, none of the things said are to be taken as being against the memory of the victim. They are to be taken only as what justice requires in the interest of a person accused of a crime and presumed innocent of it and who, for the purpose of sentence, is not to be taken to have done anything of an aggravating nature unless the evidence warrants that view. All of that, we think, has to be said in the interest of justice to the memory of this victim and, indeed, all victims.

17. Moving on, against that background, there are five grounds of appeal urged. We called upon the prosecution on the first only. Therefore, as to the second, third, fourth and fifth grounds, we can be extremely brief.

18. The second has to do with the judge's observation that:

"the degree of provocation is not that high to justify you to use such methods"

It is suggested that in saying that, the judge had gone against the verdict of the jury. He had done nothing of the kind. His observation was not strictly speaking necessary. Provocation does not justify a homicide. Rather, it reduces homicide from murder to manslaughter.

19. The third ground of appeal is that the judge failed to make a proper assessment of the degree of provocation because he failed to consider a number of things identified in that ground. We do not see that at all. The judge had of course sat through the trial and had heard an able mitigation by Mr Wong, who appeared before him even as he appears before us. There is no reason to think that the judge failed to take anything material into account.

20. The fourth ground of appeal is that the judge did not take into consideration:-

"that the Appellant had offered the plea of guilty to manslaughter due to provocation which was declined by the prosecution."

Strictly speaking, if you look at the approach made by the defence, it was more in the form of an invitation to treat rather than an offer. But the prosecution seems to concede that it was an offer which was rejected, so we will proceed on that footing.

21. Despite that so-called offer, the case was fought on the basis first of all of self-defence. It is not as if the accused had said that he accepted that he was guilty of manslaughter and that he wished to plead guilty to it and then fought the case on that footing. It may well be that this inquiry, treated as an offer, affords a modicum of mitigation. But if it does that, then it does no more than that, and cannot possibly affect the result of the present application.

22. The fifth ground of appeal is a very general one, which is to the effect that nine years' imprisonment is manifestly excessive. It is not manifestly excessive. It requires of course careful consideration to see whether it was right. And that consideration takes place in the context of the first ground of appeal, upon which we did call upon the prosecution.

23. The complaint there is directed to two observations made by the judge in the course of passing sentence. The first is this:-

"You realised that the thefts in which you were involved would inevitably come to light when the accounts were fully investigated by the board of directors with the assistance of the deceased."

And the second is this:-

"You didn't want that to happen. Your career and your reputation were so much at stake at the time. You wanted to shift to the deceased the sole responsibility in this respect. You have meetings with the deceased for that purpose."

24. What is urged under the first ground is that there was no evidence to justify the view reflected in those observations and that in fact the evidence was the other way.

25. Now, in the course of mitigation, this was said by defence counsel to the sentencing judge:-

"Now of course the defendant had already given evidence that he had not benefitted at all from all this tampering of accounts, but to what extent it is accepted by your Lordship it is a matter for you."

So, the judge was being invited by the defence to take a view, on the basis of the evidence at the trial, of whether or not the applicant had benefitted. Well, there was plenty of evidence on which the judge could take the view that he had benefitted; and that is the view which the judge obviously took.

26. That view wholly undermined the story which the applicant told in the witness-box about the stealing. And once that basis was undermined, the general sentiments embodied in the remarks of the judge complained of were justified, whether or not one takes the view that they could have been more happily worded. In those circumstances, the first ground of appeal does not afford any basis for interfering with this sentence. Nor do any other of the grounds. Accordingly, this application for leave to appeal against sentence is dismissed.