HKSAR v. CHAU KWOK ON

CACC 131/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 131 OF 2001

(ON APPEAL FROM HCCC 17 OF 2000)

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

Backgrounds

1. The applicant, Chau Kwok-on appeared before Gall J and a jury on a charge of murder and a charge of robbery. He was unanimously convicted of the charge of murder. In respect of the charge of robbery, the jury returned an alternative conviction of theft.

2. The applicant was sentenced to the respective terms of life imprisonment and 18 months imprisonment to be served concurrently.

3. He seeks leave to appeal against both conviction and sentence on the charge of murder.

4. The application relating to sentence is not persuaded because of the decision in HKSAR v Lau Cheong and another FACC No. 6 of 2001 and is dismissed.

The Facts

5. The deceased victim Kong Yiu-fai was a young man of 19. His body was found in a flowerbed near the Grand Stanford Harbour View Hotel in Tsim Sha Tsui East on 17 September 1999 with serious wounds to his head and throat. Either of the injuries could have caused his death in a short time after sustained if untreated.

6. Properties, including a gold and silver Rolex watch, a Motorola "Star Tac" mobile telephone, a Dupont cigarette lighter and a bag containing items of clothing were taken from the victim. There was evidence that the victim had been searched.

7. Before the victim was killed, the Rolex watch was pawned and redeemed twice in Macao in August 1999 by a man who presented a Hong Kong Identity Card No. XXXXXXX (X) in the name of Chau Kwok-on.

8. After the death of the victim, the same Rolex watch was pawned in Hong Kong for $9,000 on 17 September 1999 by a man who also presented a Hong Kong Identity Card No. XXXXXXX (X) in the name of Chau Kwok-on.

9. The Dupont cigarette lighter was recovered in Choi Wan Estate on 23 September 1999 on the direction of the applicant.

10. The police arrested the applicant on 22 September 1999. The police found the pawn ticket for the Rolex watch. He was interviewed under caution on 5 occasions on 22 September 1999 and 23 September 1999. The interviews were video recorded.

The Recorded Interviews (the First Interview)

11. In his first interview, the applicant denied responsibility for the death of the victim. Initially he said the victim gave him the Rolex watch. He then said he arranged to meet the victim shortly before mid-night on 15 September 1999 and they went to Tsim Sha Tsui together.

12. When they were having some drinks at about 1 am the next day, the victim quarreled with a few Kam Mo Chais (golden hair youths) who accused the victim of staring at them. The applicant intervened and separated them. The applicant then went to the toilet as he had a stomachache.

13. When he returned, he saw those Kam Mo Chais running away from the flowerbed with broken glass beer bottles in their hands. The victim was found lying on the flowerbed groaning. The applicant also saw blood.

14. The applicant said he was frightened. He also said he was greedy and in need of money. He removed the Rolex watch from the victim's wrist and pawned it for $9,000.

15. The applicant claimed to be friendly to the victim and that he treated the victim as his younger brother. He also described how he came to know the victim when he was introduced to work in a Japanese restaurant where the applicant worked as a chef.

16. Although they both left the Japanese restaurant, they remained in contact with one another as well as some other fokis of the restaurant. He also suggested that the victim had friends who were triad members.

The Second Interview

17. When the applicant was interviewed on 23 September 1999, he had a different story to tell. He admitted to have used a piece of stone to hit the victim on his head once or twice. He said when he saw the victim lying on the flowerbed, he was greedy and he wanted to take off the watch that the victim was wearing. The victim suddenly moved and struggled and he picked up a piece of stone to hit him. He said he did not strike the victim with great force.

18. The applicant said he then took the watch and the mobile telephone from the victim. Apart from pawning the watch, he also sold the mobile telephone for $450 and used $150 to repay a friend. The sim card was discarded. The applicant suggested that the victim had given his Dupont lighter for him to repair. However, after it was repaired, he discarded it near where he lived. The applicant also admitted that the victim had given him a Dupont ball-pen that he subsequently gave to his girlfriend.

The Third Interview

19. In the third interview, the applicant was asked about the mobile telephone numbers of the victim and his girlfriend. The applicant said he no longer remembered the telephone number of the deceased. There was no dispute that on 15 September 1999, the applicant had called the victim on his mobile phone 8 times and the victim had also called him once. The applicant was unable to recall details of the telephone conversation.

20. The police had retrieved certain items of clothing from the applicant's residence. The applicant said he had taken those items of clothing from the victim because he was greedy. He was asked about the items of clothing that he was wearing at the meeting with the victim.

21. The applicant also identified the Rolex watch and the Dupont ball pen retrieved from his girlfriend.

The Fourth Interview

22. At the fourth interview, the applicant was shown a video recording seized by the police from Hilton Centre. The video recording captured the applicant and the victim when they were outside 7-Eleven in Tsim Sha Tsui East on the evening in question. The applicant then said he met the victim to teach him a lesson.

23. The applicant told the police that the victim had asked his big brothers to beat him up because of a watch. On the night in question, he met and chatted with the victim. They then had an argument about the watch incident. The victim said his big brothers wanted to force the applicant into treating them a meal. In the course of the argument, there was pushing and the applicant became very angry. He picked up a stone to hit the victim and then in the confusion, he also used a glass bottle to stab the victim before removing the watch from him.

24. The applicant admitted to have lied when he said it was the Kam Mo Chais who attacked the victim.

25. The applicant said he only intended to teach the victim a lesson but unexpectedly took a stone to hit him and a friend of his also used a bottle to stab the victim.

26. The applicant also said he had borrowed the Rolex watch from the victim and lost it in gambling in Macao. When the applicant was unable to return the watch in time, the victim asked a group of people to beat him up.

27. Subsequently a friend of his, Ah Lung suggested teaching the victim a lesson. On the night in question, the applicant arranged to meet the victim and Ah Lung was following them.

28. The applicant said after he hit the victim two to three time with a stone, the victim was still struggling. Ah Lung then appeared and used a glass bottle to stab the victim on his neck. The applicant then took the Rolex watch, the mobile telephone and some items of clothing from the victim before they left.

29. The applicant said he was unable to locate Ah Lung.

The Fifth Interview

30. In the fifth interview, the applicant confirmed leading the police to recover the Dupont lighter in Choi Wan Estate. The applicant also described the circumstances in which he borrowed the Rolex watch from the victim and how it led to argument between them. There was also further reference to the circumstances in which the victim was attacked. He said he had paid Ah Lung $1,000 to assist in teaching the victim a lesson.

The Prosecution Case Against the Applicant

31. It is the prosecution case that the applicant struck the victim on the head and had either himself or through another as part of the joint enterprise used a broken bottle to stab the victim on the throat. The applicant then took the various items from the victim while he lay dying in the flowerbed.

Voire Dire

32. The applicant raised objection to the admissibility of the record of interviews, except that of the 4th interview. A voire dire was held and the judge ruled the record of all the interviews to be admissible.

The Applicant's Case

33. The defence's case was essentially one of provocation and/or self-defence. Self-defence was not considered to be sustainable.

34. The applicant gave evidence in his defence. The applicant admitted responsibility for the death of the victim. He also admitted to have taken his properties. He was in fact prepared to plead guilty to the lesser charges of manslaughter and theft.

35. He mentioned how he first met the victim at the end of 1998 in the Japanese restaurant Kyushi-Ichiba. He learned that the victim was a triad member and in early 1999 the victim left the Japanese restaurant to work in a nightclub as a bouncer. He also suggested that the victim used drugs.

36. In July 1999, the applicant noticed that the victim was wearing a Rolex watch costing over $10,000. On 1 August 1999, the applicant borrowed the watch and went to Macao to gamble. He pawned the applicant's watch when he ran out of money.

37. When he went to work on 4 August 1999, he learned that the boss of the Japanese restaurant wanted to fire him. The victim then asked him to meet his triad big brothers - Ah Kit and Ah Kong.

38. The applicant was asked about the watch. When he said he had pawned it in Macao, Ah Kit and Ah Kong assaulted him. They wanted the applicant to redeem the watch immediately.

39. When they realized that money would be deposited into the applicant's account, they took his ATM card and the Pin number. His account with over $7,000 was then emptied.

40. Despite such incident, the applicant said his relationship with the victim remained very good. The victim even asked him for help in seeking new employment. He was in touch with the victim on 15 September 1999 and arranged to meet in the evening.

41. The applicant borrowed $10,000 from a friend, Ah Shing. He then met Ah Lung and had a conversation with Ah Hon. Ah Hon was the victim's master in the Japanese restaurant and over the phone, Ah Hon asked the applicant to scold the victim for having left the Japanese restaurant without notice.

42. The applicant also said he told Ah Lung that the victim had asked somebody to beat him up because of the incident involving the Rolex watch and Ah Lung said he would give the victim a lesson by giving him a few punches.

43. After meeting up with the victim, they smoked cannabis together and the victim gave him the Dupont lighter for repair. They then decided to go to Tsim Sha Tsui and the applicant was worried that the victim would be meeting his triad brothers, he wanted Ah Lung to stay in the vicinity to see what would happen.

44. The applicant said they had some minor dispute with the Kam Mo Chais outside 7-Eleven but the matter was settled. They then went to a park. They sat on a bench and drank beer and consumed cannabis. As it started raining, they moved to a flowerbed under a pedestrian overpass.

45. The applicant said he then went to the toilet, and on his return, he met Ah Lung. Somehow, the victim mentioned about the watch incident and said his big brothers wanted the applicant to give them a treat and to pay travel expenses of $12,000, as the amount paid by the applicant was insufficient.

46. When the applicant said he had no money, the victim suggested that his girlfriend should resume working as a prostitute in the establishment of his big brothers. When the applicant stopped the victim from talking about his girlfriend, the victim asked for payment and said the applicant had $10,000 with him.

47. There was then quarrel and they started pushing each other. But the victim was getting more aggressive and suggested that the applicant's girlfriend was a whore. The victim even started hitting the applicant.

48. There was a struggle and the applicant sat on the victim. He then got hold of a stone and hit the victim on his head 3-4 times. The applicant said he was confused and did not know what he was doing.

49. Ah Lung then suddenly dashed forward and used a broken glass bottle to stab the victim on his neck and there was plenty of blood. Ah Lung claimed to be trying to help on seeing the fight.

50. Ah Lung then searched the victim before he removed the cash, the Rolex watch and the mobile telephone. Those items were then put inside the bag that the victim used to put the clothes he had brought. The bag was then given to the applicant.

51. The applicant had asked his friend Lau Kam Ho to pawn the Rolex watch for him. Lau refused. The applicant then sold the mobile telephone taken from the victim. The lighter was taken for repair. He then met up with Ah Lung and together they went to pawn the Rolex watch for $9,000. The applicant then gave about $10,000 to Ah Lung including the proceeds from selling the mobile telephone and the few hundred dollars that he had. The applicant also gave his girlfriend $9,000 from the loan he obtained from Ah Shing.

52. The applicant was arrested on 22 September 1999 when he tried to resume working.

53. The applicant said during the interviews, he was very sad and felt confused and he had therefore made mistakes. He said he never intended to hurt the victim seriously.

54. The applicant said during the struggle with the victim, it was very confusing. There was an occasion when the victim picked up a stone or a bottle to hit him. When the victim attacked him, he tried to resist. When the victim scolded him in foul language, he got agitated.

55. It was in such stage of confusion and agitation that he picked up a stone to hit the victim. He also said at some stage and he was acting in self-defence as he feared that the victim would use a stone to hit him.

56. It appeared that the victim had told others that his triad brothers had helped him to recover the watch and they expected a thank you dinner. The victim said he could not afford it.

Summing Up of the Judge

57. The judge raised the special issues of provocation and self-defence. The judge also referred to the issues of good character and lies.

58. On the issue of lies, the judge directed the jury in the following way:

"Lies have played quite a great part in the addresses of both counsel, I have to deal with it as well. It is admitted that accused lied in saying firstly, that the deceased gave to him the watch that he pawned; secondly, that a group of golden haired youths attacked the deceased and that he stole the watch out of greed; and thirdly, that the youths attacked the deceased and he then hit the deceased with a stone and stole the watch.

Now, you are entitled to consider whether this evidence supports the case brought against him by the prosecution. The prosecution also allege, although that has not been proved, that the accused lied when he said Ah Leung participated in the attack. Now, you must consider two questions. You must decide whether the accused did, in fact, tell those lies. Well, as far as the admitted lies are concerned, he says that he did. If you are not sure, then of course, you ignore the matter altogether, but if you are sure on his admission, in respect of the three lies, then you consider why did he lie?

People lie for many reasons; the mere fact that an accused tells a lie is not in itself evidence of guilt. There may be innocent reasons why he lies; to bolster a true defence, to protect someone else, to conceal conduct, because he does not think you will believe the truth, or the police will believe the truth. These are all reasons why an accused may lie other than out of a desire to distance himself from the offence. He may lie out of panic and confusion.

If you think that there is or there may be an innocent explanation of his lies, then you should take no further notice of them. It is only if you are sure that he did not lie for an innocent reason that you could regard his lies as evidence that supports the prosecution case. Even then, even if you felt he did not lie for an innocent reason, those lies could only support the case for the prosecution if you are sure that he told them to conceal his involvement in the murder of the deceased and not tell them just to conceal his connection with the death.

So, first of all, you have to be sure that he told the lies; secondly, you have to be sure that there was no innocent purpose; and thirdly, you would have to be sure that he was trying to conceal his involvement in murder and not just conceal the fact that he had been involved in the death of the deceased. Unless all those criteria are satisfied, you cannot rely upon it to support the case for the prosecution."

The good-character direction is as follows:

"The accused has no criminal record with the police. That degree of good character assists him in this way: He has reached the age of early thirties, 33, I think he is, without a criminal record and that makes him less likely than otherwise might be, to commit either of these offences."

On the issue of provocation, the judge emphasized the conduct of the victim, things he did or things he said or both. There was no special reference to the allegation by the applicant as to what had happened to him on 4 August 1999 when he was bullied by the victim and his triad brothers.

Grounds of Appeal

59. Mr. Haynes, on behalf of the applicant raises the following written grounds in support of the application:

1. That the judge failed to sum up the defence's case. In so far the judge failed to refer to the incident on 4 August 1999, the directions on provocation were over-simplified and inadequate;

2. That the judge had wrongly admitted into evidence the record of interviews;

3. That the judge had not properly qualified his direction on "lies" told by the applicant in view of the importance of his credibility to his defence; and

4. That the judge had failed to give a "full good character direction".

The suggestion that the judge had wrongly admitted the record of interviewed is abandoned at the outset.

Provocation

60. Mr. Haynes suggests that the conduct of the victim must be viewed with reference to the incident on 4 August 1999 and its impact on the applicant. Mr. Haynes complains that the judge had not made specific mention of the insulting comment about the applicant's girlfriend and the general background of the case that touched the "raw nerves" of the applicant.

61. Lord Lane CJ summarizes provocation as a defence in R v Whitfield (1976) 63 Cr. App. R. 39 at 42 in the following words:

"Provocation is some act or series of acts done or words spoken by the deceased to the accused which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind."

62. The prosecution case did not give rise to the defence of provocation. It only arose because of the evidence of the applicant and perhaps what he said in the interviews. It is important to bear that in mind with reference to the definition of provocation by Lord Lane CJ in Whitfield's case (supra).

63. In this regard, we agree with the observation by Mr. Saw SC, counsel for the Respondent that the applicant's evidence was obscure and contradictory. In each of the interviews, the applicant had a different story to tell as to how the victim was killed.

64. The applicant did not mention the insulting comment about his girlfriend in any of the interviews. Indeed in the fourth interview which is said to be voluntary and when the applicant was meant to give a true account as to what had happened, he described the attack on the victim as a joint and premeditated one on the suggestion of Ah Lung to avenge the attack on him by the victim and his triad brothers because of the "watch" incident.

65. The applicant said it was shameful to mention the insult to his girlfriend and he wanted to protect her.

66. He said he only intended to teach the victim a lesson but unexpectedly used a stone to hit the victim when the victim attacked him first. Ah Lung then suddenly appeared and used a broken bottle to attack the victim on his neck.

67. There was no evidence that the applicant was acting under a loss of self-control at any stage. Indeed, his evidence under cross-examination was to the opposite effect. He specifically denied that it was the past unpleasantness or anything said with regard to his girlfriend, which had made him angry and caused him to strike the victim.

68. In our view, the judge was generous in leaving the issue of provocation to the jury at all.

69. The complaint about the failure of the judge to mention specifically the incident on 4 August 1999 is not justified.

70. There had been a lapse of almost 6 weeks before the victim was killed. In his evidence, the applicant positively suggested that despite the incident on 4 August 1999, his relationship with the victim remained very good. They continued to have frequent contact and the victim seek his help with regard to his employment.

71. The applicant denied that he was angry with the victim and the incident on 4 August 1999 had no effect on him. He said he was angry only because the victim hit him first.

72. On his evidence, the 4 August 1999 incident has no relevance at all to the issue of provocation. There is no evidence to show such incident "would have caused in the applicant a sudden and temporary loss of self-control, rendering him so subject to passion as to make him for the moment not master of his mind."

73. If the said incident has any bearing to the case, it perhaps provides a motive for the applicant to do what he did. A plan-attack must be distinguished from an attack as a result of sudden and temporary loss of self-control. (See R v Ibrams & Gregory 74 Cr App R 159)

74. The judge cannot be criticized for not making special reference to the incident on 4 August 1999.

75. In any event, the judge had invited the jury to take into consideration all the evidence including the reference to the applicant's girlfriend to decide if the conduct of the victim had caused a sudden and temporary loss of self-control on the part of the applicant.

76. Mr. Haynes's submission on the issue of provocation is a non-starter.

Character Direction

77. We repeat, echoing what the Court of Final Appeal said in Tang Siu Man v HKSAR (1997-98) 1 HKCFAR 107 that "Where positive evidence of good character had been adduced and nothing discreditable concerning the defendant had emerged, a summing up which failed to give a full Vye direction (1993) 97 Cr App R 134, might well render the summing-up unbalanced and unfair."

78. Despite his not having any criminal record, the applicant cannot be said to be a man of good character in the true sense. On his own admission, he agreed with another to teach the victim a lesson for what he had done and he was a drug abuser.

79. The fact that the applicant was prepared to plead guilty to the lesser charges of manslaughter and theft in the face of the charges of murder and robbery is certainly not a factor in his favour.

80. Litton PJ in Tang Siu Man (supra) had the following to say at p 133:

" 'Absence of previous convictions' is a concept indulgently construed by trial judges. One or two minor offences, not related to the charges in question, may be overlooked. A string of offences, even though unrelated, will begin to strain common sense in the context of 'good character'. The judge's margin of assessment is wide in this area.

Where a person with a clear record is before the court, but in the course of the trial, discreditable matters concerning him (or her) are revealed, the judge again has a wide margin of assessment."

In R v Aziz and others [1996] 1 AC 41, Lord Steyn affirmed the decision in Vye (supra) and said at 53:

"A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviours similar to the offence charged in the indictment. A sensible criminal justice system should not compel a judge to go through the charade of giving directions in accordance with R v Vye [1993] 1 WLR 471 in a case where the defendant's claim to good character is spurious. I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considers it an insult to common sense to give directions in accordance with R v Vye."

81. When the judge mentioned to the jury that "the applicant has reached 33 without a criminal record and that makes him less likely than otherwise might be, to commit the offence", he clearly had decided to omit the other half of "good character direction" that "it supports his credibility."

82. If the judge were to include the other half of "good character direction" and in order to be fair and balanced, the judge would have to say at the same time that the applicant had admitted to have lied on previous occasions. Such an approach would indeed be absurd and an insult to common sense.

83. The judge's directions on the applicant character cannot be faulted.

Direction On Lies

84. Mr. Haynes suggests that the applicant might have lied simply because he was ashamed of killing a friend. In the circumstances, those lies were equivocal and had no probative value.

85. It is further submitted that in view of the background, the judge was wrong in directing the jury that "those lies could only support the case for the prosecution if you are sure that he told them to conceal his involvement in the murder of the deceased and not tell them just to conceal his connection with the death." The suggestion is that such direction was not properly qualified to cater for the defence of provocation.

86. We fail to see how it can be argued that the applicant's lies even if proved, was not relevant to the charge. Despite the evidence of the applicant, one of the issues that the jury had to resolve was whether the applicant killed the victim. He tried to put the blame on the Kam Mo Chais and then on Ah Lung. If he lied on those matters, the lies would certainly support the prosecution case that he killed the victim.

87. In fact "the lies" was relevant only to the issue of whether the applicant indeed killed the victim. Whether such killing constituted "murder" or whether it only constituted "manslaughter by reason of provocation" should be the subject matter of a separate direction to the jury.

88. Out of abundance of caution and accepting the suggestion of Mr. Haynes based on R v Taylor [1998] Crim L R 822, the judge gave the jury the further direction that lies of the applicant could support the prosecution case of murder only if the jury were sure that such lies as they were considering were told to conceal the fact that he had murdered the deceased, rather than merely to conceal his connection with the death.

89. It must be remembered that in Taylor's case (supra), it was not disputed that the accused killed the deceased. The only issue was the question of provocation.

90. The applicant admitted to have used a stone to hit the victim 3-4 times. He never admitted to have killed the victim. At one time he said did not strike the victim with great force. At another time, he suggested that Ah Lung used a broken glass bottle to stab the victim on the neck and there was then a lot of blood.

91. In the absence of any admission that the applicant killed the victim, the "lies direction" adopted by the judge was fair and reasonable. It was also a direction given at the suggestion, if not insistence of Mr. Haynes. The applicant cannot now complains about such direction.

92. The judge's summing up was impeccably fair and balanced. There is no valid basis for the criticism.

Conclusion

93. None of the matters raised by Mr. Haynes support the suggestion that the conviction against the applicant is unsafe or unsatisfactory. He was rightly convicted. The application is dismissed.