THE QUEEN v. YEUNG LUNG FAI

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JUDGMENT OF THE COURT

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Power, J. A.:

1. On the 24th May we granted the applicant's application for leave to appeal against conviction, allowed the applicant, quashed the conviction and ordered a new trial. We now give our reasons for allowing the appeal.

2. The applicant was tried before Wong J. and a jury and was convicted of murder. The indictment alleged that on a day between 3rd July 1989 and 6th July 1989, he murdered CHIU Kin-fat. It was the Crown evidence that in early July 1989, the applicant and his friend, a Mr. Cheng, went to Macau for the purpose of gambling. It seems that they lost. It was the evidence of one Tse Yuk-ning that the applicant approached him and the deceased for a loan of $15,000. Tse and the deceased were then operating a loan sharking business. The applicant having obtained the loan, proceeded to lose that money also. The deceased, Tse, the applicant and Mr. Cheng then came to Hong Kong on the night of 2nd July. Mr. Cheng played no part in what followed. The applicant told Tse and the deceased that he had money in his safe at a furniture factory in Tsuen Wan where he worked. The three of them then went to the applicant's home in Tsuen Wan, and at about l a.m. on 3rd July, the applicant drove the deceased and Tse in a van to the factory. On arrival, finding the building locked, they slept in the van until about 6.30 a.m. when they took some food and went once again to the applicant's home. Having returned at about 12.30 p.m. to Tsuen Wan, Tse and the applicant set out to get the money from the safe while the deceased remained in the van. The applicant, however, then told Tse to wait at a coffee stall while he alone entered the factory to fetch the money. About an hour later, Tse saw the applicant approaching him and noticed that he had a scratch on his mouth and slight injuries to his hand. When Tse asked him if he had the money the applicant replied, "I have already given the money to Ah Fat. Did he not come to look for you?" Tse replied that he had not seen the deceased. Both men then went to the carpark to look for him. On finding the van locked with a padlock, the applicant told Tse that the deceased had taken the key. After waiting until -6.30 p.m. Tse said that he would return to Macau to look for the deceased:

3. At 9 a.m. on 5th July 1989, the deceased's body was found floating off a stone beach opposite the pier at Area 40, Chu Kong Godown Wharf  in Tuen Mun. The applicant was arrested by the police on 6th July and, when taken to his home, said:

"Ah Sir, you don't have to waste time any more. I don't want to drag on any further. I tell you. It was I who Killed him."

He later went on to say,

"I repaid $9,000 to him in the carpark on the afternoon of the 3rd day of this month. He was dissatisfied as considered the amount was too small and had a dispute with me. There was even a fight. I picked up a small metal cart from the rear compartment of the vehicle and slapped down on him several times and struck him a few times. I did not know on which parts of him I struck. He was completely motionless."

He went on to say:

"After the fight, I found that there was blood on my trousers. Then I got hold of another pair of trousers and changed into it. I locked up the side door of the goods vehicle again. I parked the vehicle near Kwan Kee Motors Company the following morning. As soon as day broke on the following morning, I went to Tap Shek Kok opposite Tai Wing Godown and rowed a dinghy out to sea.  I tied a piece of rock to CHIU Kin-fat's neck with a rope and pushed him into the sea."

4. When performing a reconstruction of the events at 4.45 a.m. on 7th July, the applicant said:

"The situation then was that the two of us stood by the side and walked there. To put it this way, it was because of money dispute. At that time I opened the door to the compartment. I sat in the compartment. When he and I were quarrelling here, we started to fight. He gave me a blow and rolled to the inner side. Then he rushed up too. We exchanged blows: you (sic) gave a blow, I gave a blow, up there. I fell down on the floor. Then I got hold of a small iron cart and struck it at his body, once from the left and once from the right. He was struck till he finally fell down on the floor. At that time he did not move and I stopped. At that time he had fallen down at the rear part of the vehicle. I swiftly alighted from the vehicle and then found that there was blood all over my body. Then I got a pair of clean shorts from the front part of the vehicle. Having changed the clothes there, I swiftly came down and closed the door. I closed the door and parked it properly. Then I left. Following that, two days later, I took his dead body and threw it to the sea side off Tap Shek Kok."

5. The Crown called two pathologists, Dr. H.M. WONG and Dr. K.S. Wong. They gave evidence of finding a number of wounds on the deceased's body. These included 30 stab wounds. Both, however, said that in their opinion the cause of death was ligature strangulation.

6. The thrust of the Crown case was that the deceased had been rendered unconscious and then strangled. The Crown's fall back position, if it can be so termed, was that if strangulation was not proved then the wounds on the body and the general circumstances were such as to negative any question of either provocation or self defence.

7. The applicant gave no evidence. The defence relied upon his statement, set out above, in which he had indicated that death occurred during a fight. One witness was called for the defence a Dr. Chan, who said it was more likely that the ligature was applied after death and that the deceased had therefore not been strangled to death.

8. Central to the whole matter was the conflict between the Crown contention that the applicant had strangled the deceased and the defence contention that he had not. It was necessary to hear Mr. McCoy, who appeared for the applicant, on only two of his 7 grounds of appeal.

            "Ground 1. The learned Judge erred in law in directing the jury that

'... the previous good character of an accused person is only relevant if he gives evidence in the witness box ... this does not arise here because the accused has not given evidence.'"

Mr. McCoy submitted that this direction was wrong in law.

9. The applicant did not call anyone to give evidence of good character, but Mr. Westbrook, his counsel at trial, elicited from a police witness that he did not have any criminal record. When addressing the jury, Mr. westbrook said:

"The defendant had no previous criminal convictions of any kind, no criminal record, and you are entitled to put that into the balance, into the scales of justice, if you like, in his favour. He is. not a man who has continuously been getting into trouble with the police for fighting or getting into any other kind of trouble. He is a law-abiding young man who, apparently on the face of it, has behaved reasonably in his life until this day."

10. Mr. McCoy conceded that it would have been correct for the judge to tell the jury that the evidence of good character was not relevant to the applicant's credit as a witness as he did not go into the witness box and give evidence. He submitted, however, that it was wrong for him to tell them that it was not otherwise relevant as, once it was in evidence, it was relevant both to the jury's consideration of the credibility of the applicant when making his statements and to whether the applicant was the kind of man who would be likely to behave in the way alleged. We think it not  inappropriate to remark that while evidence of a clear record is relevant and admissible it is less cogent than what might be described as the more positive evidence of good character given by witnesses on oath. Indeed, in our view, evidence of good character is in many cases of such little weight that it gives no real assistance to the jury.

11. The duty of a judge in directing the jury with regard to evidence of an accused' s good character was recently considered in R. v. Marr (1990)90 Cr. App. R. 154, R. v. Berrada (1990) 91 Cr. App. R. 131, R. v. Thanki, a decision of the Court of Appeal in England on 6th July 1990 and reported only in [1991] Crim L R 203, and R.V. Kabariti and R. v. Bainbridge both decisions of that court on the 6th July and 7th November 1990 respectively and reported in The Times on 20th November 1990 and 25th January 1991. A transcript of the approved judgment in Bainbridge was made available to us.

12. In Bainbridge the Court of Appeal considered the earlier decisions, and Lord Lane C. J. in delivering the judgment of the court referred to the following passage in Berrada.

13. Mr. McCoy submitted that the evidence of good character clearly related to credibility and that it should therefore have received the benefit of the mandatory conventional direction referred to by Lord Lane. Plainly there could be no direction as to the applicant's credibility at the trial for he elected not to give evidence. However, he had made statements to the police which had been put in evidence. It was in respect of the applicant's credibility when making these statements that the direction should have been given.

14. In support of this contention he relied on the following passage in R. v. Boyson [1991] Crim L R 274:

"When directing the jury on B's (Boyson's) character the judge had said that the jury could put it into the scales when considering her credibility in relation to what she had said to the police in interviews since she had not given evidence. The use of the phrase 'putting into the scales' was a serious misdirection: the judge should have said that good character was relevant to credibility, and might have added (though it was not obligatory) that a person of good character was less likely to commit the offence charged. (R v. Berrada (1990) 91 Cr. App.R. 131, 133 per Waterhouse J.)"

15. Since at the time of hearing this application we did not have a full report of this case, counsel agreed, that a transcript of the approved judgment should be obtained and sent to us after the conclusion of argument and we have now had the advantage of seeing that report. This has had the effect of delaying the handing down of these reasons. However, as the determination of this issue is not necessary for our decision, we prefer to express no opinion thereon.

16. We are satisfied that there is substance in Mr. McCoy' s primary contention that the judge erred in positively directing the jury that the evidence was not relevant. It is one thing for a judge not to give the direction that Mr. McCoy contended he should have given, but another thing for him to tell the jury that the evidence of good character was not relevant. Had this misdirection stood alone, however, we would unhesitatingly have applied the proviso. Indeed, we observe that in Boyson the Court of Appeal was satisfied that no miscarriage of justice had occurred and the appeal was dismissed.

17. The judge, having canvassed the evidence, went on to suggest to the jury that they would probably have no doubt that it was the accused who killed or caused the death of the deceased. He then said

It is true that this passage was preceded by a general statement that the onus of proof was on the Crown. It was, however, the first passage in which the judge referred the jury to the vital issue of a ligature strangulation, which, as we have already said, was the real thrust of the Crown case. The judge should have told the jury that the Crown must prove ligature strangulation of the deceased by the accused, and prove it beyond reasonable doubt. In fact what he told them was:

"The defence must overcome the first hurdle and that is, you must -- they must convince you - or they must persuade you to come to the conclusion that the cause of death is not ligature strangulation ..."

This was clearly a serious misdirection. There was no onus upon the defence to persuade the jury that they must come to any such conclusion. It was for the Crown to prove death by ligature strangulation. The jury may well have been left with the impression that if the applicant failed to prove that the cause of death was not ligature strangulation, they should return a verdict of guilty.

18. Accordingly we granted the application and allowed the appeal.