R. v. CHONG YAN YUK

IN THE COURT OF APPEAL

1994, No. 233
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. This is an application for leave to appeal against the conviction of the applicant on one count of murder and on another count of attempted murder. He also seeks leave to appeal against his sentence of life imprisonment for the attempted murder. In this part of the judgment, we are only concerned with the question of his convictions.

2. The matter arose from a tragedy which has been described as a "triangular love affair". The persons involved were the applicant and his common law wife (the deceased) and a girlfriend whom he became acquainted with during the period of his cohabitation with the deceased.

3. When the girlfriend learned of his relationship with the deceased, she put pressure on him to severe the relationship, so much so that he was undoubtedly in a state of mental turmoil for some days before the fatal act took place.

4. One morning, after spending the night in the flat of the deceased's parents, and thinking that all the other occupants in the flat had gone, he told her about his intention to leave her so as to join the girlfriend. That led to a quarrel and a physical fight, in the course of which, the applicant killed the deceased by suffocating her.

5. In a panic and in order to obliterate any evidence of the killing, he attempted to create a scene as if a robbery had taken place, whereupon he ransacked the flat. Unbeknown to him, a lady who was the girlfriend of the deceased woman's brother was sleeping in another bedroom. When he discovered her, he attacked her violently, striking her on the head with a hammer, cutting her neck with a chopper, and also attempting to kill her by suffocation. Fortunately, she did not die but suffered very serious injuries.

6. In the course of the hearing, the applicant maintained that he never had the intention to kill the deceased, the killing was an accident. He also maintained that he never attempted to murder the lady found asleep in the other bedroom. His intention was only to wound her seriously.

7. A number of grounds have been advanced this morning on behalf of the applicant. We have had a very helpful and full skeleton argument from counsel for the applicant. We do not propose to deal with those arguments in detail save to say that we have considered the written as well as oral arguments with care.

8. There are only two points we need raise briefly. Firstly, it is said that the learned judge structured his summing up on the questions of murder, provocation, intention and manslaughter in such a way that the jury was confused and in effect the judge had taken away from the jury the issue of manslaughter without the intention to kill.

9. We have examined the summing up carefully and are of the view that everything that needs to be said upon these issues, have in fact been said by the judge though a better practice would have been for the judge first to deal with the meaning of murder and then the question of intention and then to tell the jury that if the accused intended to kill, then the issue of provocation might well have to be considered. On the other hand, if such intention were absent , then the question of involuntary manslaughter might have to be considered.

10. The second point we need to make mention of is the judge's direction on the meaning of provocation. It seems clear that the judge had in mind the direction that was outlined in the case of R. v. Duffy [1949] 1 All ER 932. However, that direction has been superseded in Hong Kong by section 4 of the Homicide Ordinance, Cap.339. Though that passage of the judge's direction by the judge taken in isolation is a departure from section 4 of the Homicide Ordinance, we are satisfied that subsequent passages in the summing up cured that defect and the jury could be in no doubt as to what the proper meaning of provocation was.

11. As we have indicated, we have considered the other grounds of appeal and find no merits in them. For these reasons, the application for leave to appeal against the convictions is refused.

12. As to the application for leave to appeal against the sentence for attempted murder, counsel for the applicant quite rightly stated that life imprisonment is usually imposed in the case of an accused who is a psychopath or an accused who may well repeat the same offence some time in the future. It is also true to say that the applicant does not fall into either category. However, this is perhaps one of the worst imaginable cases of the type. It is only by sheer good fortunate that the victim did not die from the very serious wounds inflicted upon her.

13. In all the circumstances, we cannot say the sentence, heavy though it is, is wrong in principle or excessive. The application is accordingly refused.