HKSAR v. MA KWOK FAI

CACC 404/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 404 OF 2011

(ON APPEAL FROM HCCC NO. 40 OF 2011)

_______________________

_______________________

_______________________

REASONS FOR JUDGMENT 

_______________________

Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1.  Ma Kwok-fai (the applicant), Ng Fuk-keung (the deceased) and Leung Kam-shing (Leung) were residents of Kin Ming Estate in Tseung Kwan O, Kowloon.  The deceased and Leung, who were friends, lived in the same block and the applicant lived in a nearby block.  The deceased and Leung saw each other often and they recognized the applicant, but had not spoken to him.

2.  On 11 August 2010, the applicant, the deceased and Leung were involved in a brawl at the pedestrian passageway of Ming Chau House and Ming Sing House in Kin Ming Estate.  As a result, Leung was injured and X-ray showed fracture of his left ring finger with tenderness and swelling. The deceased, seriously injured, was sent to Queen Elizabeth Hospital by an ambulance.

3.  When arrested at 4:20 pm on 11 August 2010 for wounding the deceased, the applicant said under caution, “For self-defence only”.

4.  On 12 August 2010, the deceased died and the post-mortem examination showed serious injuries to his skull with an area of fracture to the left orbital plate, which could be due to a fall.  There were haemorrhages in the same area with damage to the brainstem and the cause of death was traumatic head injuries.

5.  The deceased also suffered fractures to his right fourth, fifth and sixth ribs caused by a significant amount of force.  According to the pathologist, most of the deceased’s injuries were blunt force injures caused by a fist, or a hard object, or a fall to the ground.

6.  The applicant was charged with murder.  He admitted having unlawfully killed the deceased and was prepared to plead to manslaughter.  The prosecution did not accept the plea and the applicant stood trial before Beeson J (the judge) sitting with a jury on the charge of murder.  On 14 September 2011, the applicant was convicted of murder and sentenced to life imprisonment.  

7.  Represented by Mr Gerard McCoy SC, the applicant sought leave to appeal against conviction.  On 15 June 2012, we granted the application and, treating the application as the appeal proper, we allowed the appeal.  We quashed the murder conviction and instead convicted the applicant of manslaughter.  

8.  On 16 July 2012, after hearing mitigation from Mr Richard David Donald and considering reports from the psychologist and two psychiatrists, we made a Hospital Order, under section 45 of the Mental Health Ordinance, for the applicant to be detained, for an unspecified period, in the Siu Lam Psychiatric Centre where provision had been made for him.  

9.  We indicated that we would hand down reasons for our decisions in due course and this we now do.

The Prosecution Evidence

10.  On the date of the incident, the applicant had a dispute with a young man at the nearby Choi Ming Shopping Centre (the shopping centre).  The applicant was said to have deliberately hit the young man with his fist and the young man abused the applicant in foul language until his mother stopped him.  The brawl between the applicant, the deceased and Leung took place soon thereafter as they were walking back to Kin Ming Estate from the shopping centre.

11.  Leung said he witnessed the altercation between the young man and the applicant and after the applicant went off alone, the deceased came by and they were walking home slowly.  On the way the deceased mentioned words to the effect that the applicant was fighting with others again. As they were going up the escalator, the applicant was at the top, scolding them in a foul language.  Leung asked the applicant what he was scolding about, the applicant just continued.

12.  Leung said the deceased said nothing, but when they were walking along the passageway, the applicant suddenly came forward and punched the deceased on the bridge of his nose.  The deceased fell down face upward on the ground.  The applicant then gave Leung a punch which he dodged but the blow caused the injuries to his left ring finger.  The applicant, who was wearing running shoes, did not stop, but continued to kick the deceased very hard a few times and accused him of pretending to be dead.  But the deceased was unconscious and there was blood coming from the nostril area.

13.  Leung initially said neither he nor the deceased had said or done anything to provoke the applicant, but he later admitted that after they had crossed the road, he had twice told the applicant to stop shouting.  Leung denied the suggestion that he and the deceased had tried to punch and kick the applicant.

14.  The incident was witnessed by Madam Zheng who did not see the applicant hitting the young man in the shopping centre, but heard and saw the young man abusing the applicant in a foul language.  Madam Zheng also said she heard either the deceased or Leung telling the young man not to get involved in a fight with the applicant.

15.  Madam Zheng followed the deceased and Leung who were talking in an ordinary and normal voice and the applicant, who was ahead of them by 3 to 4 metres, kept turning back to look at the deceased and Leung.  When they reached an escalator and when the applicant was at the top of the escalator, Leung and the deceased were still discussing about the applicant.

16.  According to Madam Zheng, the applicant kept looking at Leung and the deceased and was at one stage waiting for them, asking them if they were looking for a fight.  Madam Zheng was unable to say who struck the first blow, but saw the three of them fighting and she said it was chaotic.  The three of them continued to exchange blows as they were walking along and when they reached the pedestrian passageway between Ming Chau House and Ming Sing House, the deceased fell backwards onto the ground.  Madam Zheng was unable to see how the deceased was hit, but she said after the deceased had fallen backwards, the applicant kicked him on his waist three to four times with great force.

17.  A security guard who arrived at the scene saw the deceased lying on the ground face up and there was blood coming from his head.  The applicant was standing next to the deceased, saying in a soft voice words to the effect that it had nothing to do with him as it was the other two who hit him first and that he was acting in self-defence.  The applicant said it was Leung who hit him.  Leung said it was the applicant who hit him and that one of his fingers was injured.

18.  After his arrest, the applicant was interviewed by the police under caution.  He said when he was at the shopping centre, a man bumped into him, but the deceased and Leung told the man that it was the applicant who had hit him.  The man then told the applicant to be careful and scolded him in a foul language.  The applicant further said when they were walking home, he asked Leung and the deceased why they had accused him of hitting others, but they started assaulting him.  He said he only pushed the deceased when they kept hitting and kicking him and the deceased fell onto the ground.

19.  The applicant admitted that he was waiting for Leung and the deceased because he wanted an explanation from them.  He said it was Leung and later the deceased who together chased him, and then kicked and punched him.  He said he was able to dodge all the blows and he just tried to push the deceased.  The applicant said, “As I pushed him, he suddenly spat out blood and then fell onto the ground and then turned over his body, he turned over his body and the blood kept on gushing out from him”.

20.  The applicant said he thought the deceased was feigning death and he kicked his buttocks twice with his right leg, but there was no response.  The applicant further said he waited for the police and claimed that the incident had nothing to do with him.  He was adamant that he was wronged as he did not initiate the fight and it was the other two who did.

21.  The medical evidence did not show any injury on the applicant’s body.

The Defence Case

22.  The applicant did not dispute that he had assaulted the deceased causing his death, but claimed to be acting in self-defence.  When giving evidence, the applicant said he saw the deceased and Leung standing near the young man who had abused him in the shopping centre but he did not hear either of them speak to the young man.

23.  The applicant said as he was walking home along the pedestrian passageway, the deceased and Leung chased and tried unsuccessfully to punch and kick him.  The applicant said he had nowhere to go and in order to ward off what he believed to be an imminent attack he pushed the deceased in the face, causing him to be unconscious and to fall facedown.

24.  The applicant insisted that Leung injured his own finger when he hit the railing in the course of punching him.  He also said he pushed the deceased on the face for fear of a further attack when Leung gave the deceased an “eye signal”.  The applicant admitted that the deceased was 4 to 5 inches shorter than himself and when he pushed him, the deceased’s body shook before he lost consciousness and fell onto the ground.  He said he did not expect the deceased to be so weak, but admitted that he had probably used a lot of force in pushing the deceased.

25.  The applicant further said that after the deceased turned over and was lying on the ground face up, he used his foot to “push” the deceased’s buttocks to check if he was really unconscious.

26.  The applicant denied that he had scolded Leung or the deceased with a foul language, but admitted that he had asked them if they had seen him hitting somebody.

The Judge’s Directions to the Jury

27.  The judge had explained in detail to the jury both the law and the facts.  The judge directed the jury on self-defence and reminded the jury that it was the prosecution’s duty to satisfy them that the applicant was not acting in self-defence.

28.  On the question of the applicant’s intention, the judge did not separately deal with his intention when hitting the deceased on the nose and when kicking him on his waist.  Instead, the judge lumped the two together and simply said to the jury:

“…when you consider the question of intention, the prosecution says that the only reasonable inference you can draw from the facts is that the (applicant) intended to cause serious bodily harm. This is shown by the significant degree of force used for the punch or push to the deceased and, furthermore, at the time that the (applicant) knew the deceased was unconscious and bleeding from the head, he kicked him with great force in the ribs.

... …

The prosecution says that you can deduce the intention to cause really serious bodily harm, first of all, by the defendant’s action in pushing or punching (the deceased) as was described, followed by substantial kicks which fractured his ribs. Both actions were administered with significant force” (Italic emphasis added)

29.  The judge reminded the jury that they must acquit the applicant if they found that he was or might be acting in self-defence.  On the alternative conviction of manslaughter, the judge said:

“Any doubts that you might have as to whether the defendant had the intention to cause (the deceased) really serious bodily harm would mean that the prosecution has not made you sure of the (applicant’s) guilt on the charge of murder and it would be your duty as jurors to acquit of the charge of murder. If you found that the (applicant) had no intention to kill or to cause serious bodily harm, you would consider the alternative charge of manslaughter and decide whether the elements of manslaughter have been proved so that you are sure about them, and again, I have given you a reminder of what you have to be sure about.

If you are sure of those elements of manslaughter, you would find the accused guilty of manslaughter by reason of an unlawful and dangerous act where the intention to kill or cause grievous bodily harm has not been proved.  If you were not satisfied that all the elements of manslaughter have been established, you would also acquit the (applicant).”

Grounds of Appeal

30.  Mr McCoy suggested that the applicant could only be guilty of manslaughter, but not of murder.  He emphasized that the punch to the deceased’s nose could not be force, in fact or in law, sufficient to support an intention to kill or to cause grievous bodily harm.  Mr McCoy further emphasized that the cause of death was an “unintended traumatic head injury” resulting from the deceased falling and he suggested that when the deceased died from a blow by the fist alone, the jury should be directed closely to consider if there was an intention to cause grievous bodily harm, even if death was in fact resulted.

31.  Mr McCoy suggested that the judge had failed sufficiently or at all, to direct the jury as to the relevant issues of legal and factual causation of the death of the deceased and therefore the conviction of murder against the applicant was unsafe.

The Respondent’s Position

32.  Mr Simon Tam, for the respondent, accepted that a punch or a push to the face might not be sufficient to support an intention to cause grievous bodily harm, but suggested that the kicks to the deceased’s waist resulting in three fractured ribs would be.  Mr Tam argued that the punch to the face and the kicks to the waist were part and parcel of the same transaction and that the judge was right to direct the jury on that basis.

33.  Mr Tam further argued that whether the applicant intended to cause grievous bodily harm to the deceased when he punched and then kicked him was a question of fact and on the evidence and the judge’s direction, which was proper and fair, the jury was entitled to conclude that the applicant did have such an intention.

Discussion

34.  This was one of those unfortunate incidents when what appeared to be a trivial matter had led to a serious and fatal consequence.

35.  The applicant appeared to be a bad-tempered person with the tendency to look for and cause trouble.  He might have been angered by what took place between him and the deceased on a previous occasion and his anger could have been made worse, quite unjustifiably, by the deceased’ s comments on the dispute that he had with the young man at the shopping centre.

36.  The applicant must have used considerable, if not full force in delivering the punch at the deceased’s nose which caused him to fall flat on the ground, resulting in a fracture of his skull, which killed him.

37.  Mr McCoy compared the applicant’s punching the deceased with a schoolyard fight, opposing players punching each other in a rugby match and an “inter-hawker punch”.  It was, in our view, not a good comparison when the punch directed at the deceased by the applicant was an unprovoked and unexpected, yet a forceful one.

38.  However, a charge of murder could only be established if the applicant had intended to kill the deceased or cause him serious bodily harm when he directed the punch at him.

39.  Whether a punch to the face could support an intention to cause grievous bodily harm is a jury question to be decided according to the circumstances of each case, including but not limited to the physique of the parties, the amount of force used, the number of blows, the position of the parties, and the circumstances in which the blows are delivered.  We do not intend to lay down a hard and fast rule as it is neither necessary nor desirable do so.

40.  However, it is not easy to infer an intention to cause grievous bodily harm from a single blow with a fist.

41.  Mr Tam suggested that the punch and the kicks were part and parcel of the same transaction.  However, when the applicant kicked the deceased, the deceased was already lying on the ground with a fractured skull, which killed him.  The kicks could be gratuitous, separate from and independent of the earlier punch to the deceased’s face.

42.  This alternative scenario of the kicks being an opportunistic afterthought was clearly available on the evidence and impacts upon the issue of whether, in throwing the punch, the applicant had the intention to cause grievous bodily harm.  When it comes to inferring an intention to cause grievous bodily harm there is a very real difference between a one punch assault and a broader assault consisting of additional acts of violence.

43.  In R v Griffiths (1999) 103 A Crim R 291, the Court of Criminal Appeal, South Australia replaced a conviction of wounding with intent with that for assault occasioning actual bodily harm on the basis that the trial judge had not sufficiently directed the jury and at p 296 of the judgment, the court commented:

“However, there was a need in this case for a special direction to the jury with respect to the first charge that if they thought the injuries sustained were from a single blow with a fist they would have to closely consider whether they were satisfied beyond reasonable doubt that the appellant had acted with intent to cause grievous bodily harm even if it be the jury’s view that grievous bodily harm had in fact resulted. As counsel for the Crown fairly conceded in the course of argument before this court, it is very difficult to infer an intention to cause grievous bodily harm from a single blow with a fist.”

44.  It is true that the applicant continued to attack the deceased after he had fallen onto the ground.  The fractures to the deceased ribs indicated that the force used by the applicant was considerable.  Madam Zheng said that the applicant kicked the deceased on his waist three to four times with great force.  Had the jury concluded that the subsequent kicking and the punch which preceded it were part and parcel of the one event in the sense that at the time the applicant punched the victim he intended to inflict further violence on him and the punch was just the beginning of the attack then such kicks could have supported an intent to cause serious bodily harm.

45.  But, as emphasized by Mr McCoy, the kicks on the waist, separate and distinct acts of violence from the punch to the deceased’s face, did not kill the deceased.  Indeed when those kicks were delivered, the traumatic head injuries caused by the punch, which killed the deceased, had already been inflicted. In these circumstances it was incumbent on the judge to direct the jury to consider whether the attack was essentially a one punch attack as opposed to a broader assault upon the deceased.  The jury should have been further directed that should they conclude the former was the position then they should focus their minds on the applicant’s intention at the time he delivered his punch.

46.  However, the judge did not separately deal with the applicant’s intent in relation to the punch to the deceased’s face and the kicks to his waist.

47.  In our view, the judge should have reminded the jury that the kicks to the deceased’s waist did not kill him and directed the jury to consider if the single blow with fist, which killed the deceased, was inflicted with the intention to cause grievous bodily harm.  Without such a direction, the jury could have been misled into thinking that the intent with which the subsequent kicks were inflicted necessarily determined the intent of the applicant when he delivered his punch.

48.  We were of the view that it was doubtful if the applicant could have the intent to cause grievous bodily harm to the deceased when he delivered a single blow to his face with his fist.  We had doubt about the safety of the murder conviction and in our view it was right and just to convict the applicant only of manslaughter.

49.  We therefore granted leave to the applicant to appeal against conviction.  Treating the application as the appeal proper, we allowed the appeal, set aside the conviction for murder and in substitution thereof, we entered a conviction for manslaughter against the applicant.

50.  We note that the judge had, in the course of the summing up to the jury, used the terms “really serious bodily harm” and “serious bodily harm” interchangeably.  The essential elements of murder are the unlawful killing with intent to kill or cause grievous bodily harm.  Whilst “really serious bodily harm” was considered a sufficient equivalent to “grievous bodily harm”, “serious bodily harm” in many factual situations would not be sufficient to indicate the required intention for murder and the use of “serious bodily harm” would amount to a mis-direction.

51.  We wish to repeat what Prior J said in Griffiths (supra) at p 293:

“In Blevins (1988) 48 SASR 65, this court said that it is undesirable to define the expression grievous bodily harm to a jury but if it is done, the explanation should be in terms of really serious bodily harm. In that case, King CJ, then dealing with a case involving a conviction for the crime of wounding with intent to do grievous bodily harm, said that any explanation or definition of the expression grievous bodily harm in terms of interference with health or comfort is a misdirection. He cited an earlier decision of this Court, Perks (1986) 41 SASR 335 and spoke of other cases saying that it was desirable that a jury should be directed by using the expression grievous bodily harm and that generally speaking it was unnecessary and even undesirable to offer an explanation of that term. Then came the positive statement:

‘If an explanation is thought to be necessary, it should be confined to the expression (really serious bodily harm).’

Perks was a case involving a conviction for murder in which the direction to the jury as to the intent of the accused was in issue. This Court then said that the use of the expression ‘serious bodily harm’ was undesirable and that the trial judge should have used the normal expression of grievous bodily harm. King CJ then observed that there had been a tendency which he had shared to assume without proper consideration that serious was a synonym of grievous. His Honour was sure that he had frequently used the expression serious bodily harm as synonymous with grievous bodily harm. However, having heard the argument on the appeal he reached the conclusion that in some factual situations the expression serious bodily harm may mislead a jury into regarding the degree of harm which must be intended in order to constitute murder as less serious than the law actually requires. His Honour said that, like White J, he considered the conventional expression grievous bodily harm:

‘despite its somewhat archaic ring, should be adhered to.  If the meaning of grievous was to be explained the expression really serious rather than merely serious should be used.’ ”

52.  It would have been better for the judge not to use “really serious bodily harm” and “serious bodily harm” interchangeably in a murder case, but to adhere to “grievous bodily harm” or “really serious bodily harm”.

Sentence

53.  We were perplexed by the applicant’s behavior towards the young man at the shopping centre and what he did to the deceased and Leung at the pedestrian passageway.  We therefore called for psychiatric and psychological reports.  Those reports confirmed that the applicant had suffered anxiety depression since 1993 and had not obtained proper treatment.  The applicant was referred to a psychiatric clinic in 2004, but he did not comply with the prescribed medication treatment and had failed to keep the appointment for the psychiatric follow-up treatment.

54.  There were records of the applicant’s repeated attendances at the Accident and Emergency Department between 2004 and 2010 as a result of fights or complaints of being assaulted in public.  The applicant believed that he was targeted by strangers in the street as they had deliberately followed and bumped into him, sneezed or spat in front of him for no reason.

55.  The applicant’s mood was irritable and he was often involved in fights because he became suspicious and shouted foul language towards others immediately whenever there was any physical contact.

56.  The applicant was unable to maintain any job because he repeatedly ran into conflicts with his co-workers.  He was observed to be muttering and shouting to air about being deliberately approached and pushed, and he also demonstrated gestures of hitting others when he was alone.

57.  The applicant served a 6-month Hospital Order sentence for an offence of Assault Occasioning Actual Harm committed when he was detained in the Castle Peak Hospital in connection with the present offence.

58.  The psychiatric reports confirmed that the applicant suffers from paranoid schizophrenia evidenced his prominent paranoid delusion, possible hallucination for his muttering behavior and functional deterioration, but the applicant had poor insight into his mental illness and he refused psychiatric medication treatment.

59.  Dr Chow, Kit-man, the psychiatrist, opined that as the applicant is having active paranoid belief and the risk of violence is high, compulsory psychiatric inpatient treatment is necessary and she recommended a Hospital Order for an unspecified period.  Dr Amy CY Liu, another psychiatrist agreed with Dr Chow’s opinion.

60.  Karli WC Chan, the clinical psychologist, also agreed that the applicant has developed some persecutory delusions and functional deterioration consistent with the development of schizophrenia and that the risk of re-offending violent offences is moderate to high.

61.  The applicant is clearly a violent man.  He has five previous convictions, including wounding, fighting in public place and assault occasioning actual bodily harm.  On the day in question, he had a dispute with a young man before he attacked the deceased.  The applicant can be a nuisance and a threat to society.

62.  We had taken into consideration the background and the facts of the case, including the fact that the applicant was prepared to plead to manslaughter before the judge.  We had also taken into account the applicant previous convictions and what the psychologist and the psychiatrists had said about him in their reports.

63.  Taking a man’s life is always a very serious matter and the applicant is a danger to the society.  In sentencing the applicant, we must bear in mind the consequences of his crime and the need to protect the public.

64.  We were satisfied that the proper way to deal with the applicant was to enable him to receive proper treatment in a mental hospital until it is safe for him to return to the society.

65.  We therefore made a Hospital Order under section 45 of the Mental Health Ordinance for the applicant to be detained in the Siu Lam Psychiatric Centre for an unspecified period.