THE QUEEN v. WONG TAK SING

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J U D G M E N T

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Silke, V.-P.:

1. Wong Tak Sing - "the Applicant" - appeared for trial before O'Dea, J. and a jury upon an indictment containing a single count of murder. He was convicted and now seeks leave to appeal against that conviction.

2. On 2nd March 1988 a female torso was recovered from the sea at the north west side of Tsing Yi Island. Forensic evidence was led - and this is not in issue before us nor was it seriously an issue at trial - that it was the torso of Law Shut Bing - "the deceased".

3. The Applicant lived in a cubicle in Block J of Kwong Ming Building, 1st floor, No.18, Shantung Street, Mongkok. The deceased lived in another cubicle in the same building together with the principal tenant of the 1st floor.

4. It was the case for the Crown that on 27th February 1988 the Applicant had a brush with the deceased. They bumped each other in the corridor outside the Applicant's cubicle. This led to an argument and to the Applicants being pushed by the deceased, then going to the head of his bed and there removing a knife from a drawer in which it was kept. He told the deceased to be quiet, and pressed that knife against her neck. Then she moved her head and it cut her neck and drew blood.

5. The Applicant pushed her to the ground, held the knife against her neck and "it cut into" her. Whereupon she struggled and he held her down until those struggles had ceased. He then dragged the body to the toilet and decapitated it.

6. When the body of the deceased had ceased to bleed, he carried it into his own room and returned to the toilet, using the shower to wash away the bloodstains on the floor and he cleaned the bloodstains near the door of the toilet with a piece of cloth. He returned to his room and locked the door.

7. There he cut off her limbs for the easier disposal of the body and put the head, the arms and the legs into a large plastic carrier bag and the torso into another such bag.  He washed the bloodstains from his room. Her clothes and a bloodstained bedsheet, which he had laid on the floor of the room, he put into a plastic litter bag.

8. The incident was interrupted by the arrival of the principal tenant at the main door of the premises which the Applicant had locked soon after the killing. He opened the door to the principal tenant and returned to his own room relocking his door. Shortly afterwards he left the premises and had a meal.

9. He returned there at about 11:00 p.m. and immediately after that took the, two bags containing the parts of the body of the deceased and threw them into the sea. This entailed walking a distance of some one hundred yards from the building in which he lived, across the main road and to a small jetty on the opposite side. The, clothes he threw into a bin in the street.

10. The evidence in support of the case for the Crown came from cautioned statements made by the Applicant on the 15th March upon his arrest and, in particular, on the 16th March. The Crown sought to support the contents of those statements by two pieces of independent evidence (i) a watch, the property of the deceased was pawned on the instructions of the Applicant on 3rd March by a friend of his and redeemed on the following day; (2) the finding of bloodstains near the toilet and, in particular, a substantial stain on the floor of the deceased's own room. The blood matched that of the deceased. These stains were found on 16th march and in the presence of the Applicant.

11. There was also a video reconstruction which was presented to the jury and which followed very much the lines of the cautioned statement of 16th March.

12. Both the cautioned statement and the video reconstruction were made the issue of a trial within a trial and were admitted in evidence by the trial judge. Their truth, and the weight which the jury should put upon them, were both contested at the trial proper. The Applicant gave evidence that he had been subjected to threats, inducement and violence and that the statement was a fabrication. The video recording took place also under duress and that which he was depicted as doing was done as a result of coaching by a detective police constable.

13. In evidence he denied killing the deceased. He accepted that he had pawned the watch and stated - in contradistinction to his statement where he had said that he had taken it off her arm after death - that he had bought it from her. The pawning was done in order to assist in his moving flat - and there was nothing sinister in that move, the principal tenant being the subject of an eviction order - and to buy food for the Gods. He had then borrowed money from his girlfriend in order to redeem: the watch which when he did he later sold - again in contradistinction to the statement where he said that, having redeemed it, he threw the watch away.

14. All the issues concerning the weight which the jury could or should place on the cautioned statement and the video recording were fully canvassed by the trial judge in his summing up. Their resolution was a matter for a properly directed jury and no issue is, nor could be, taken with the directions given to the jury on this aspect of the trial.

15. Mr. Wong, who appeared for the Applicant both here and below, has argued nine grounds of appeal - the ninth being the wrap up ground of unsafe and unsatisfactory. He complains of the trial judge's directions on the intent required for murder; the failure of the trial judge to leave to the Jury the possibility that the Applicant was performing "an unlawful and dangerous act" by placing the knife at her neck and thereby failing to leave a possible defence of manslaughter on that basis to them; he complains of a non-direction on provocation and further of the direction which the judge gave in relation to the Applicant's failure to explain the bloodstains. Coupled with those, he complains of that which he alleges to be factual misdirections and non-directions.

16. In support of his complaint that the trial judge misdirected on intent, he seeks to draw a distinction between that which the Applicant was seen and heard to demonstrate on the video reconstruction and that which he stated in the course of the cautioned statement. Mr. Wong submits that the trial judge failed to draw the attention of the jury to this distinction.

17. Taking first what the Applicant said in the statement and it is worth repeating in detail:

"... and I held the blade on LAW Shut-bing's neck. Then I said to LAW Shut-bing,' Don't make anymore fuss.' At that time, LAW Shut-bing was probably so frightened at that moment that she moved her neck. Then I saw that her neck was bleeding. Then I pushed her to one side of the toilet. Then I saw a lot of blood spurting out from her neck. At that time, I got into a panic and pushed her on to the floor of the toilet. At that time, I saw her struggling hard, trying to get on her feet. Then I pressed her chest with one hand and used the knife held in the other hand to cut into her neck. Then at that juncture, I saw that LAW Shut-bing did not struggle anymore." (Emphasis supplied).

18. In the course of the video reconstruction he said:

"I grabbed her at once 'Old bag, why making such a fuss, stop your gab. At that time, my knife was held on her throat. Eh, I did not know how deep it cut inside."

19. He went on, demonstrating the manner in which he held the knife, that she was not at that point bleeding. He continued:

"I just pressed against like that..... Well, she turned, just turned her neck, and then, she bleeded. I immediately used my palm to give her a push in the chest once, like that, a push, pushing her towards there 'Stop your gab.' 'Bang' However, I did not know if the knife held in my hand had cut a bit deeper. At that time, there was blood spurting out. I was very frightened.

Yeah.

Immediately, I grabbed her, and threw, threw her onto the floor here. Well she wanted to get on her feet. I just pressed against her. 'Don't move. Don't move. Then her head, eh, the knife was already in the neck. Her head kept writhing, kept writhing. And then, at last, she became motionless. (Emphasis supplied)"

20. With respect to Mr. Wong, the distinction he seeks to draw is rather more apparent than real. It is from this that he asks us to hold that the actions of the Applicant were in the nature of an "unlawful act" 'With the result not desired nor intended with the consequence of a verdict of manslaughter being open to the jury. I shall come back to this latter aspect in a moment.

21. Mr. Wong also complains that the trial judge was wrong in failing to tell the jury that when they came to their conclusion as to the Applicant's intent, they should disassociate from their minds the evidence of dismemberment. He advances this ground in particular in the light of a passage in Mr. Hartmann's address, Mr. Hartmann appearing both at trial and in this Court for the Crown, where he said:

"Clearly, of course, a body that is headless, and limbless must speak of foul play of some kind."

I find nothing wrong in that comment of itself. It was clearly commonsense and did not impinge on the jury's function. It must be remembered that the decapitation followed immediately upon the girl's becoming motionless. It was certainly open to the jury to consider all the facts, which emerged from the cautioned statement and the video reconstruction if they believed them to be true. I do not think the suggested failure to have been a non-direction.

22. The judge, perhaps out of an abundance of caution, left provocation to the jury and, in commenting on the acts upon which it was sought to contend were provocative as to make a man such as the Applicant lose his self-control, commented to the jury by putting in the form of a question whether a person would react to it by actually getting out a knife "and cutting a person to bits". It might well be that those words went further than was necessary but it must have been apparent to the jury that provocation was on so slender a basis I do not think that the comment in any way misled them.

23. Next Mr. Wong complained that the judge made comment that the Applicant offered no explanation of the bloodstain, matching the blood of the girl, being found in his room.

24. In evidence, the Applicant had made no attempt to do so, saying indeed that she had never entered it. In his closing address Mr. Wong suggested to the jury, without any evidential foundation, that the blood could have come from one or other of the Applicant's girlfriends or from someone else who might have earlier inhabited the room before the Applicant had taken up his three year tenancy which ended shortly after the killing.

25. The judge's comment was factually correct and he was entitled to make it to the jury - and this without the necessity of reminding them of Mr. Wong's suggested explanation which of course, they themselves had heard. It was a factor of some importance.

26. It is correct that the evidence of the principal tenant - that he had not heard any person leaving the flat between 8:30 p.m. on the 27th and 4:00 a.m. on the 28th - not specifically drawn to the attention of the jury This evidence was in contradistinction to the statement of the Applicant in which he said that he had left at least twice once for a meal and once the purpose of disposing of body. But again commonsense must prevail: while the main door was a noisy one, known to be such by the inhabitants of the building, if a man were disposing of incriminating evidence as the Applicant in his statement said he was, it is highly unlikely that he would have either opened or closed the door in such a manner as to make it obvious to the principal tenant, whose room was close to that door, that someone was leaving.

27. It might perhaps have been preferable had the judge gone into detail on this evidence but the jury had had it drawn to their attention in the course of the final addresses and had, of course, heard the evidence itself. I do not consider that this was a non-direction sufficient to mislead the jury into disbelieving the Applicant.

28. I turn now to the directions on intent. At the commencement of the summing up, having given general and proper directions on the burden and standard of proof, the trial judge said this to the jury:

"Now, members of the jury the accused, as I have said, faces only the one charge and that is one of murder. In this case, the Crown have to prove the unlawful killing of a woman named LAW Shut-bing with the intent on the part of the killer either to kill her or to cause her grievous bodily harm."

NO possible exception could be taken to that. He repeated this direction towards the close of his summing up posing a question directly to the jury:

"Has it been proved, members of the jury, that in killing the deceased, the accused at the time of doing so had formed an intention to kill her or to cause her grievous bodily harm?"

29. He advised them to consider the manner, as depicted on the video reconstruction, in which the incident occurred because

"... in essentially deciding where intention lies, you will be looking at the manner in which the deceased met her death."

30. Then, in relation to intoxication - for the accused said he had peen drinking -

"Did he intend to kill her or cause her grievous bodily harm, then this part of the case is proved against him. A drunken intent, members of the jury, is still an intent."

And, stressing to the jury that it was for the Crown to prove the necessary intent, he went on to say:

"If you are not sure that he had formed, when he killed this woman, he had formed an intent to either kill her or cause her grievous bodily harm, if you entertain reasonable doubts about that, then you would find him, members of the jury, not guilty of murder but guilty of manslaughter - guilty of manslaughter because he had not formed the necessary intent for him  to be guilty of murder."

31. He concluded his summing up by dealing with the matter of provocation.

32. No complaint can be made of any of those directions, they were proper ones, and, if anything, over generous to the Applicant. It is however a passage which appeared at page 28, in the middle of that which was otherwise a very careful and conscientious summing up, which gives me cause for concern.

33. The trial judge indicated to the jury that the initial use of the knife, the, holding of the blade at her neck, coupled with his description of her moving that neck, did not in, his view indicate that, at that particular point, there was any indication that the Applicant had formed an intention to kill or cause her grievous bodily harm. He then suggested to them that it was the second sequence of events which "may possibly indicate intention to you. Again it is a matter for you." Then, a littler further down at that page, he said this:

"Now, members of the jury, in carrying out that act, [the second sequence] what do you believe his intention was? Was the probable consequence of his action one of causing her grievous bodily harm or even killing her? If it was, if that was his intent and you are satisfied of that, then the Crown has proved the necessary intent to have the defendant convicted of murder." (Emphasis Supplied)

34. This was an unfortunate direction. It ignored the advice given in R.v. Moloney [1985] AC 905 where Lord Bridge of Harwich said at page 926:

"The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid an elaboration or paraphrase of what is meant by intent, and leave it to the jury's good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding in trials for murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms. Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence."

35. This was not, on any footing, a case which might require a direction on foresight of consequences.

36. Moloney, explained in R. v. Hancock and Shankland [1986] AC 455 and R. v. Nedrick [1986] 1 WLR 1025 was, as were the others, a case of an indirect act. Here there was a direct attack with a weapon, whether or not in the first instance movement of her neck by the girl may have resulted in the knife's penetrating her. The direction was quite unnecessary. But, once a direction of this nature is given, then it must be given properly. This was not. What concerns me is that in the perfectly proper directions both earlier and later in the summing up, which emphasised the word "intent"; that word may have become coloured in the minds of the jury by the passage I have just cited. If they believed that the Applicant thought that the probable consequence of his action would be to cause the girl grievous bodily harm or even killing her then, they were told, in effect, that that was his intent. This is wrong.

37. While the expression "natural consequences" was used in Moloney this, it was made clear, meant that the consequences must be "overwhelming". In Hancock and Shankland the expression "high probability" was used which became, in Nedrick "virtually certain" - and this is now the correct phrase and emphasis if a direction on foresight is to be given at all. A jury should be told that a result is intended when it is the doer's purpose and they should be directed, if necessary, that they may infer that a result is intended, though it is not desired, when the result is a virtually certain consequence of the-act and the doer knows that it is a virtually certain consequence (Vide Smith and Hogan Criminal Law 6th Ed. p.56).

38. While the evidence as disclosed by the video tape, the statements, the pawning of the watch and the bloodstains was very strong, nevertheless, the judge quite properly left  manslaughter to them and left it solely on the basis as to whether the Applicant had formed this specific intent required for murder. I cannot say, in the light of the passage to which I have drawn attention, that the jury would necessarily, although it was open to them to do so, have found the requisite intent. Intent in this case was all. A material misdirection of this nature does not in my judgment, permit the conviction for murder to stand. Mr. Wong has asked that, if we be with him on this, we substitute a verdict of manslaughter. Should we be with him on any other of his grounds, which for myself I am not, then there should be an acquittal.

39. That I find this not to be a matter of an unlawful and dangerous act in the sense of Moloney must by now be clear and that part of Mr. Wong's submission causes me no concern. Accident, or indeed manslaughter, on that basis was not open to the jury.

40. I would therefore, with reluctance, allow this appeal and substitute for the verdict of murder one of manslaughter.

Bewley, J.:

41. I am reluctantly obliged to dissent from the judgment of my Lord the Vice-president.

42. I agree with him that this was not a case which required a direction on foresight of consequences: far from it. I am also in agreement with his analysis of the authorities on the subject. If such a direction is given, the jury should be told that they may infer that the defendant intended the result of his act only if that result was virtually certain to follow and the defendant knew that it was virtually certain there, as here, the judge equates probable consequence with intent, without enlargement or explanation, there is a palpable misdirection

43. This would usually be fatal to the conviction, because the jury is being invited to apply a test less stringent than the 'virtually certain' test. In the very special circumstances of this case, however, I am of the opinion that, in spite of that invitation, there was no danger that the jury could have applied anything but the 'virtually certain' test.

44. If, following the judge's direction, the jury considered the 'probable consequences' of the applicant's action, they must have done so in the context of the secondary encounter.

45. The only evidence of this, as recorded in the cautioned statement and video, which the jury must have accepted - otherwise they would have acquitted - was that the applicant pushed the victim to the ground, held the knife against her neck, while it 'cut into her', and then held her down until she ceased to struggle.

46. It is stating the obvious to say that, in these circumstances, death, or at the very least grievous bodily harm, was 'virtually certain' to follow.

47. There is no real possibility that the applicant was hot aware that it was a 'virtually certain' consequence. Could the jury have had any doubt about the matter? I am satisfied that, in spite of the misdirection, the jury, in considering the question of 'probable consequences', if indeed they did so, would not have asked themselves merely: "Did he know that grievous bodily harm was probable??They must have been satisfied, on the evidence, that the applicant knew the consequences were 'virtually certain'.

48. There was, therefore, no miscarriage of justice. I would apply the proviso and refuse the application.

Ryan, J,:

49. I agree with the reasoning and conclusions of Silke, V.P. and I too would set aside the conviction of murder and substitute for that verdict one of manslaughter.