R. v. CHAN SAI KIT

IN THE COURT OF APPEAL

1993, No. 619
(Criminal)

HEADNOTE

Challenge to admissibility of circumstantial evidence showing past enmity and ill-will in a murder trial - Held: There was a sufficient link to the relationship at the time of the murder. Reliance by defence upon expert evidence that fire was probably accidental. Held: Witness went beyond the area of his expertize when giving that opinion as he could properly have said no more than that there was no evidence of foul play and that what he observed was consistent with the evidence of the accused.

IN THE COURT OF APPEAL

1993, No. 619
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant was, after trial before Wong J. and a jury, found guilty of murder. The charge alleged that on the 23rd day of October 1989 at an unnumbered wooden hut in Fuk Hang Tsuen, Lam Tei, Tuen Mun, New Territories, Hong Kong, he had murdered Mak Wai-ngor. The victim was the wife of the applicant. It was the Crown case that he murdered his wife by incinerating her, having arranged the scene so that it would appear that she had been the victim of an accidental fire which occurred while she was assisting him to repair his motor vehicle. There was nothing at the scene which indicated that the fire had been deliberately set. It was the Crown case that the applicant had a motive to murder his wife and that there were scientific evidence to establish that his detailed story of an accidental fire was untrue.

The Circumstantial Evidence

2. The evidence as to motive came principally from four tape-recorded conversations which the wife, without the knowledge of the applicant, had made while they were residing in Canada in 1986 with, it appears, a view to using the tapes as evidence in divorce proceedings. The exact dates and sequence of the tapes could not be established but it was clear that they were recorded in the months preceding 10th December 1986.

3. It was not disputed that the tapes were of conversations between the deceased and the applicant. They were produced at trial as Exhs.P10, P11, P12 and P13. Two of the recordings were of conversations in person and the other two were of telephone conversations. In the course of the tapes the deceased makes constant complaints of infidelity which the applicant does not deny. There were further complaints of assault which were also not denied. Exhibit 10 reveals a catalogue of accusations by the deceased. The applicant failed to make any specific response to the great majority of the accusations. He does, however, make several answers which appear to be admissions of adultery. It must be said that the deceased seems clearly to have been deliberately provoking the applicant in an endeavour to obtain evidence which she could use against him in divorce proceedings.

4. In Exh.11 the deceased accuses the applicant of wanting to murder her and says that if she dies it will be definitely him who has murdered her. There are also repeated complaints that it was she who has been providing the money for the house and the matrimonial expenses. Again there are accusations of infidelity and again there are oblique answers which appear to be admissions of unfaithfulness. There is a bizarre discussion of the way in which the applicant might murder the deceased in which he says that he would not do it with his own hands or by employing someone or by using poison as that would not be "legal". At one stage the applicant says: "But I would not take a gun to put you to the fucking death. I have the 'get away from' already well-planned. Have been contriving plots all the time. You thought that I ... when I was at an idle end, all the time I was thinking of those things." The deceased then says, "So I see !. You do not go to work so that you can think about how to murder me." To this applicant replies, "It is not your fucking concern. Anyway I have plans to proceed with ..."

5. Later in the conversation after a discussion about family finances the following passage occurs:

"Male: It is better for you to let the thing go its natural course. Definitely I will go away. Don't cherish any hope, mind you ... I have been fucking bottling up for so many fucking years. I've had quite enough of it.

Female: Likewise, I have been bottling up with you. I have been ill-treated so much both mentally and physically by you. Obviously I am bottling up with you. What else can it be. It was you who hit me. You hit me and the beating resulted in me having black eyes, my mouth bleeding and my head having swellings. Tell me who is bottling up with who(?) I was beaten up, so much so that I could not utter a word, and I felt pain in my chest. Tell me who is bottling up with who (?) Always failed to stay overnight at home. Tell me who is bottling up with who (?)

Male: ....

Female: One more thing, who went into my room with an axe at the ghostly hours of the night, attempting to chop me to death with the axe. On one occasion, it was luck for me to know about it all of a sudden. You wanted to murder me on that occasion, didn't you. If not what is the point of your coming in with an axe. I was lucky that I was not asleep. Did you want to murder me on that occasion.

Male: Yes.

Female: You speak up.

Male: Yes.

Female: You wanted to murder me on that occasion?

(Male: Yes.)

You wanted to chop me to death.

Male: Yes.

Female: You speak up.

Male: Yes.

Female: So (you) have the guts to admit that on that occasion you did want to murder me with the axe.

Male: Yes."

The conversation later continued in the following terms:

"Female: As a thoughtful person like you, you of course would not reveal any of what you intend to do.

Male: I disclosed what I did, didn't I? You have a cheap mouth in saying this .... I would not lay blame on any person indiscriminately. Before doing anything, definitely I will make enquires to see if there is any evidence, especially when it is concerned with life and death. I would not act indiscriminately. I would - would - even in the case of a thief, he has his rule of honour. Though I say I will kill, yet I will first get evidence through investigation before I make the move. You get it.

Female: You said that (you) had killed more than one person. You also claimed that you had gone around to kill some people. (Male: Didn't I (?)) What people did you kill?

Male: None of your business.

Female: What people did you kill?

Male: For the past few months, you have been saying that you would drive me away. If I had not helped you, given out so much paid out so much money, and worked so hard, you would not have been so comfortable. You have your way and do things only when you like them. Did I ever meddle in your affairs?

Male: Fuck your mother's cunt. I would rather do it than not fucking do it now. All the time, (I) am trying to think of some plot. You can try to guess what I ...."

In the course of this conversation the deceased accused the applicant of being homosexual and of "fondling" another man. The deceased repeated her accusation that the applicant wanted to kill her, after which the following exchange occurred.

"Female: You have a lot of methods. (You) said that I would be shredded with a meat-shredder, and said that I would be chopped into pieces and that a dog would be bought and kept to eat me. And you said that the bones would be burnt. You have a lot of methods, I know it.

Male: There will be no evidence for a murder in the absence of a dead body.

Female: That is the most you can do. Now I know it.

Male: ... There are more. You guess me - What I told are already outdated. If I do a murder now, a murder will not be established without a dead body. Yes.

Female: And you also said you would shoot me dead with a gun.

Males: Shooting dead is no ......

Female: On the whole, you have a lot of methods, threatening me mentally always like that.

Male: How can it be a murder in the absence of dead body? Let me ask you what murder is? If the dead body disappears, what is murder? What murder (?) ..... forge it. No murder at all."

Later the applicant said:

"Male: ...... know it. When the dead body disappears and all is melt, no fucking this is found. I won't be found guilty. I knowingly .....

Female: Um! (yawning)

Male: ......... Only when the dead body is found can I be charged with murder. Right? Do (you) have ? You don't !"

6. Exhibit 12 is the first of two telephone conversations. It occurred after the applicant had wounded the deceased with a knife. The wound to her hand was a serious one requiring 20 stitches. The applicant when asked by the deceased why he had done it says that he "wanted to scare" her. After some discussion about family finances the applicant asks the deceased to tell the prosecutor that she does not want to proceed with the charge which had been laid against him as a result of the wounding. The applicant protests that he loves the deceased and eventually she says:

"When I am in the court, I shall not prosecute you that in the past you ill-treated me, you chopped me with an axe, threw things at me, kicked me, hit me severely, hit me so much so that I bled. I will not say these. It is because I am not prosecuting you now."

To this applicant replies:

"It is not so ... Now I am prosecuted for, prosecuted for Dangerous with weapon he/she accused me of."

The deceased endeavours to obtain financial concessions from the applicant and a promise that he will seek marriage counselling. Later in the conversation the deceased accuses the applicant of wanting to murder her and says:

"You have already thought out methods to destroy the corpse and evidence, haven't you?"

The applicant replied:

"I did not mean it. Sometimes I said that only in a moment of anger."

The applicant goes on to say that an admission of adultery with a woman in Vancouver which he had made was not true and that he had only invented it to make the deceased anxious.

7. The second telephone conversation (Exh.P13) appears to have taken place after the court hearing as the wife asks why he did not now come to visit. In this conversation the applicant is aggressive from the outset. He abuses the police and when the deceased refuses to permit him a late night visit saying that she is afraid for her safety, the following passage occurs:

"Male's voice: Your life by no means is safe. (I) tell you. I can finish you off any time I wish. You are no way safe.

Female's voice: By what means you can finish me off?

Male's voice: How I can finish you off? A lot of fucking ways.

Female's voice: What ways?

Male's voice: Damn nonsense. Do you think that I don't care. Don't you ... Don't drive a dog into a corner. I tell you."

8. Tong Siu Wai, the younger sister of the deceased, gave evidence that in 1987 the deceased and the applicant had come on a visit to Hong Kong. She said that while her sister stayed with her off and on for may be two months the applicant was only in her house for less than ten days. She said that they were not a very loving couple and had quarrels over very minor things. It was her evidence that "they were never at peace and their kind of conversation was very heavy stuff and very explosive". She said that on one occasion, after the couple returned from Beijing, they looked very angry and upset and the applicant was aggressive and punched the deceased. This witness went on to say that in March 1989 the couple again returned to Hong Kong and that she saw them three or four times between March and October and that on only one occasion did she see a quarrel. Hospital records were produced which indicated that the date of this incident was 2nd September 1989. The witness said that the deceased had complained that the applicant had given her some tonic soup and that after taking it she felt dizzy and that the applicant then had her lie down and rubbed her with some kind of medicine oil with the smell of chloroform. The witness said that the applicant denied having done anything improper to his wife. Under cross-examination she said that on that evening the deceased had said that she did not wish to go back to Wood Yuen because the applicant would "set another trap and do her in". She also said under cross-examination that by 1989 the couple "appeared on the face of it to be happy". It was the defence case that whatever had occurred in 1986, thereafter the relationship between the deceased and his wife had been a relatively normal one.

9. The defence relied upon evidence that the deceased had in May and again in September 1988 written letters to two cousins in China saying that her husband was behaving better. The defence also relied upon the evidence of Ng Siu-chuen, an uncle of the applicant with whom the couple lived at Fuk Hang Tsuen from March 1989 until the death of the deceased on 23rd October 1989. Mr. Ng gave evidence that they were "a very close and loving couple." The Crown, however, relied not only upon the evidence of Tong Siu Wai, set out above, but also on the evidence of Mak Hing-yeung, a younger brother of the deceased, to show that there was persistent enmity between the couple. Mr. Mak said that, in December 1988:

"At the end of the dinner my elder sister was getting up at the same time saying that (the applicant) had been treating her very badly all along, always scold her and always beating her up. She also said that (the applicant) wanted to kill her. As she was saying all these my sister made her way round the table, say, all three of us were one side of the table; by the time she said that (the applicant) was trying to kill her, she was on the other side of the table. So (the applicant) also got up and followed her. And what I witnessed was that she was uttering the words to the effect that Chan was trying to kill her, Chan hit her very hard on her tummy with the back of his fist.".

Under cross-examination he said:

"I am hundred percent sure now recollecting that my elder sister actually described (the applicant) as sexually pervert, as a result of which she got this punch on her tummy from (the applicant)".

10. The Crown also relied upon evidence surrounding the making of a "joint will" in 1989.

11. On 6th March 1989 when the applicant and the deceased were in Canada the applicant asked a friend, Poon Man-chu, to assist in drafting a will. A document which he described as "a joint will" was drafted and upon the instructions of the applicant he inserted the following clauses:

"III. If my wife die, or we both killed in an accident at the same time I (we) shall donate our property and the only house at the above address (the matrimonial home) to The Scientific Research Institute of the People's Republic of China (c/o The Embassy of the People's Republic of China in Toronto, Ontario, Canada)

IV. If any of the suspicious accident or death of my said wife, a full investigation of the circumstances is required."

The witness said that a few days later the applicant rang him saying that the deceased had changed her mind and asked him to draft another will. He said that his instructions with regard to the second will were that the applicant's brother was to become the beneficiary of the matrimonial home at 121 Pitt Avenue, Scarborough, Ontario, in the event of his death and was also to become the beneficiary of what was left in his bank accounts. He said that he was also instructed that there was not to be any clause IV in the new will. He said that the applicant told him that this alteration was decided upon after he had had a discussion with his wife. He said that the applicant later came and asked him for the new will and that he had witnessed the applicant signing it. This second will has never come to light.

12. The final piece of circumstantial evidence upon which the Crown placed reliance was the evidence as to insurance policies. In 1982 the deceased took out a life insurance cover in the amount of $35,000 and the applicant took out a similar cover in the sum of $50,000 which he raised to $85,000 in 1985. On 17th May 1988 each party took out a further cover in the sum of $35,000 in the event of accidental death or dismemberment. Further, on 3rd March 1989, some ten days prior to the couple coming to Hong Kong, a travel insurance was taken out by the applicant. The Crown did not seek to make any point with regard to these policies other than that the applicant was aware of their existence and that upon the death of his wife he would obtain, if the policies were applicable to the circumstances of the death, substantial financial benefit from them.

The Applicant's Version of the Fire

13. No one witnessed the fire except the applicant, but there was substantial expert evidence with regard thereto.

14. The applicant did not give evidence, but in a statement made shortly after the incident he said that he had decided to repair his car on 22nd October 1989 and that

"At the very beginning I was doing the repair alone. I asked my wife to come out to help me because I required somebody to switch on and off the ignition of the car in order to test the oil pump. She came out from the house and got into the car. At the time she was wearing pyjamas. I gave her sports pullover to put on. After she had got in the car, I tried to find out if there was electricity with the self-made tester lamp under the car. At the time the deceased was listening to the car radio while she was controlling the electric switch with the car key. I later found that there was no problem in the electricity source. Therefore I tested other parts. I also changed the oil strainer and the pipe connecting (it). After I had done the above-mentioned things I asked the deceased to start the engine for me to test if there was any problem with the oil pump pressure. At last I believed that the problem of the car came from the oil strainer because there was dogging and petrol could not flow fast enough. I wished to change the carburetor pipes so I went to work on the pipe on the working table which was at the other side of the garage. The working table was about 10' away from the car. At the time I had my back towards the car so (I) did not know what the deceased was doing. Later as I needed the deceased's assistance to hold the pipe for me, I asked her to come to help me. I heard a few sounds of starting the engine of the car. I also heard a sound of minor explosion. I also saw some red light in the garage. So I turned round and saw the car had turned into a ball of fire. I shouted out the deceased's name several times, but (she) made no response. I thought the deceased had left the car. The fire was so big at that time that I had to seek safety in flight. I rushed out via the garage door. I remember that I had switched off the lamp switch of the garage before I left."

15. In a cautioned statement made some three hours later the following exchange occurred:

"Question: Inside which part of the vehicle was your wife when you last saw her during the period you were repairing the vehicle?

Answer: (She) was at the driver's seat, listening to the radio. I did not notice her other actions.

Question: Did your wife smoke cigarettes?

Answer: Yes, occasionally. But I was sure that she didn't when (I) was repairing the vehicle.

Question: Did you hear any sound before the vehicle caught fire?

Answer: Yes, there were sounds of turning machine coming from the inside of the car. Afterwards, there came a 'pop' sound. Following that, I saw red light inside the garage. But I did not know that a fire had broken out.

Question: Did you see your wife inside the car after the fire broke out?

Answer: (I) didn't see (her) because before the fire broke out, I was cutting a rubber tube which was used to connect the steel nozzle of the fuel tube to the carburetor at a working table about ten feet away from the offside vehicle front."

Later in the statement came the following passage:

"Question: Did you see the ground where the car was parked catch fire?

Answer: As the car was engulfed in a fire-ball at that time, therefore, I cannot be sure whether or not the ground caught fire."

It was, then, the applicant's story that when he went to the bench his wife was seated in the driving seat of the car, that he then heard the motor being turned over and the sound of a 'pop' and that when he turned to look at the car it was 'engulfed in a fire ball'. He was also, it is true, saying that he did not at that time see his wife and so was unaware whether or not she was still in the car. If his story were true then his wife must have left the car and gone around behind it before she succumbed to the fire as her body was found immediately behind the vehicle. It seems, however, if this be so, that, although he turned immediately upon hearing the 'pop' and upon becoming conscious that a fire had started, he did not see his wife leave the car even though he was on its off side, that is on the driving side, and only about 10 feet away.

The Expert Evidence as to the Fire

16. The first expert witness was Mr. Tang Man Hin, a forensic scientist. Considerable reliance was placed upon his evidence by the defence. Mr. Tang made an examination of the scene before giving his report. He said that his findings were consistent with the description given by the applicant. During his evidence in chief the following exchange occurred:

"Q. Right. In your opinion, was the fire accidentally started or not?

A. I wouldn't completely rule out the possibility, but since I found no sign of foul play or anything suspicious on the balance of probability, I would consider it is more probable to be started accidentally."

Having considered the evidence as to the state of the scene we are satisfied that Mr. Tang should not have been allowed to make this observation. While it was entirely within his province to state that there was no evidence of foul play and that he found nothing suspicious, he went beyond what was proper when he said that it was "more probable to be started accidentally". This was pure speculation as his expertise did not entitle him to make such an observation. He could properly do no more than say that he found nothing suspicious and that his findings were consistent with the applicant's story.

17. The other important expert evidence came from Professor Ferris, a forensic pathologist. He placed particular reliance upon the fact that the carbon monoxide level in the body of the deceased was only 23%. It was his finding:

"............. that the only reasonable conclusion is that she has become so rapidly burnt in the fire that she has died from her burns before she has inhaled enough carbon monoxide to even render her unconscious, so that she must or she would appear to have died from the shock associated with the severe burning of the body. That is very unusual. This indicates not just an intensity of the fire but a localisation of the intensity of that fire to her body."

18. In examination in chief the following passage appears:

"Q. Now given the cause of death of burns and the low level of carbon monoxide, what does this mean to you?

A. Well, it means that there must have been an extremely intense fire on her body and that her body in fact caught fire, not the clothing but the body was affected by the fire very early on in the fire sequence."

19. The final passage in examination-in-chief was as follows:

"Q. So to take it step by step, in your judgment, she died very quickly or quickly?

A. Yes.

Q. And she didn't die from carbon monoxide causing her to stop breathing?

A. That is correct.

Q. So she died quickly from severe burning of her body?

A., That would appear to be the only reasonable conclusion, yes.

Q. Now given that situation, where do you think she died?

A. Well, I believe she died where her body was found, at the back of the vehicle.

Q. Do you think it would have been possible for this woman, given the pathological evidence you have revealed, both burns and carbon monoxide level, to have moved from inside the car to the back of the car?

A. No, I do not."

20. In cross-examination the following passage occurred:

"Q. Well, doctor, the question might then arise as to how long it would have taken the deceased to leave the cabin of the car and reach the point where her body was found. Could I suggest that a person would probably cover that distance in about 3 to 5 seconds?

A. Yes.

Q. So then it is reasonable, if not probable, that she survived long enough to escape from the cabin of the car and reach the spot where she was ultimately found.

A. That could well be correct, yes."

The defence placed particular reliance upon this passage, suggesting that in it the doctor had resiled from his earlier opinion. We do not agree. He was doing no more than agreeing that she would have "survived long enough", i.e. more than 3 to 5 seconds, for her, had she been in the cabin, to have escaped from it and reached the spot where she was ultimately found. It was, however, clearly not his opinion that this has happened. He had made that plain in his evidence in chief and reaffirmed it in the following passages in re-examination:

"Q. Now you said there has to be an explanation for this low CO2 level.

A. Yes.

Q. And it is that she died of burns on her body.

A. Yes. Well that, as Mr. Plowman pointed out, that is the only other evidence we have.

Q. Well, your position is that based on this level which would not have caused her to collapse of either CO2 or cyanide, she is free to move around. She is not unconscious, where do you believe she was at the start of the fire?

A. Well, I believe she must have been very close to where her body was found at the start of the fire. I believe in fact she must have been very near the back of that vehicle, if not actually lying where her body was found."

Finally in re-examination we have the following passage:

"Q. And given the distance we say between the front seat of the car and the back of the car, you agreed with him that it could take maybe 3 or 4 seconds to get from the seat of the car to the back of the car. Well where does that leave your position?

A. Well, what it means is that if there is a fire and she is in the vehicle, she escapes from the vehicle albeit perhaps with her clothing on fire, she will survive outside the vehicle in the unconfined space of the garage long enough to get a carbon monoxide level of greater than 23 per cent, so the level of 23 per cent is the key. It would in fact make it impossible for that person to have been alive for any length of time at all because they died very quickly after the inhalation of carbon monoxide. It's not a question of getting out of a car, going to the back of the car collapsing as a result of the fire and the fumes and then dying in the fire because when that happens the carbon monoxide level is high. In this case, death has occurred too quickly for that scenario. The carbon monoxide level is too low. There is some other as yet undetermined factor which has caused this lady's body to burn and for her to die." (Emphasis supplied.)

21. Mr. Charles Close, an industrial training consultant, gave evidence referring to a record which showed that the applicant had been an indentured mechanical apprentice in Ontario and had successfully completed both the in-school and the on the job portions of the apprenticeship programme. He said that the applicant was awarded a certificate of apprenticeship and a certificate of qualification which was in effect a licence to practice as a mechanic in Ontario. He said that the records showed that the applicant later sat for an inter-provincial examination which would have allowed him to work in other provinces without having to be qualified, but that he had failed in this exam. Mr. Close went on to say that the applicant qualified in electrical systems from his first exam and the first certificate that he received. This witness also gave evidence that if there were any spillage of gasoline while repairs were being conducted an experienced and qualified man's prime concern should be either to air out the area and get rid of the fumes or to dry up the spillage. He also said care should be taken with regard to any loose wires and battery which could be dangerous because of the possibility of arcing. He said that these were basic things of which a person with the qualifications of the applicant must have been aware.

The Grounds of Appeal

22. We turn now to the grounds of appeal.

23. The applicant contended in Grounds 1 and 2 that either the judge had erred in law in admitting the four tape-recordings or that he had failed to exercise his discretion to exclude them on the ground that their prejudicial effect exceeded their probative value. It was argued that they were inadmissible, being not proximate enough in time to the alleged defence and because they could not reasonably be regarded as evidence of enmity or ill will which might have motivated the applicant.

24. They were clearly evidence of enmity and ill will in 1986. The only question for determination under Grounds 1 and 2 is whether they were, given their nature and given what occurred between 1986 and 1989, so linked to the relationship of the parties in 1989 that they could properly be regarded by the jury as evidence to establish a motive for murder. The defence relied upon the evidence of the sister and the uncle which we have set out above which indicated that there was a harmonious relationship between the parties in 1989. There was certainly some evidence to that effect. There was also evidence coming from the sister and the brother that a degree of enmity persisted. We refer particularly to the evidence of the younger sister as to the quarrels in November 1987 and as to the incident some six weeks before the alleged offence and to the brother's evidence of the insulting behaviour by the deceased and the assault upon her by the applicant in December 1988.

25. Mr. Mullick, who appeared for the applicant, relied particularly upon the decision in R. v. Barbour [1939] 1 DLR 65 where evidence of previous quarrels and assaults was held to be inadmissible upon the issue of malice in a murder charge. The facts in that case were, however, very different from those in the present case and we find it of little assistance. Each case must be looked at in the light of its facts applying the principle which was clearly stated during argument in by Lord Atkinson in R. v. Ball [1911] AC 47 at page 68:

"Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused as well as his 'malice aforethought'."

We rely also on a passage from the earlier case of R. v. Bond [1906] 2 KB 389 where Kennedy J. at p.401 said:

"The relations of the murdered or injured man and his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial."

In the present case we are satisfied that there was evidence upon which the jury might have been satisfied that there was a continuing history of enmity by the applicant towards the deceased and that the evidence was therefore rightly admitted. The admissibility of such evidence is in no way affected by the fact that the deceased may by her own behaviour have exacerbated the ill will that had grown up between the parties.

26. The third ground contended that the judge had erred in ruling that the evidence relating to the insurance policies was admissible. This was, it is true, not conclusive evidence but it was certainly relevant to the relationship of the parties and could, we are satisfied, properly be taken into account when determining whether the applicant had a motive to kill his wife. This is particularly so given the evidence which revealed that the parties had argued about money and about the control of the family assets. The judge gave the following direction in this regard:

"Then there is the evidence of the insurance policies. This is now before you by way of admitted facts and it is marked Exhibit P45. I think this aspect was dealt with in great detail by Mr. Plowman yesterday and I will not, therefore, dwell on it. Please do look at the admitted facts and the exhibits attached to the admitted facts.

Now on these facts, on the facts which you have heard, Mr. Alderdice invites you to draw an inference that the accused had a motive to kill his wife because of the poor relationship between the two and also for financial gain. Of course, it is a matter for you whether you would draw this inference. You have to consider these incidents cumulatively and not each of them in isolation."

This was a moderate and, in our view, proper direction as to the policies.

27. Under Ground 4 it was argued that the evidence relating to the will and its proposed alteration by the applicant was not relevant to either malice or motive. The judge when summing up did no more than recite the evidence of Mr. Poon as to the making of and the proposed changes to the will. He, properly in our view, left the assessment of that evidence to the common sense of the jury. The applicant's endeavour to delete Clause IV and to change Clause III, so that a member of his family benefited thereunder, were matters which the jury were entitled to take into account when assessing motive.

28. Under Ground 5 it was argued that the prejudicial effect of the evidence as to the will so far outweighed its probative value that the judge should in his discretion have refused to allow it to go before the jury. We have no hesitation in rejecting this contention. The evidence was clearly relevant and was properly before the jury.

29. Mr. Mullick next turned to the contention contained in Ground 8 that the trial judge erred in law and in fact in ruling that the appellant had a case to answer. He submitted that the only evidence as to the cause of the fire came from Mr. Tang and that since Mr. Tang had concluded that the fire was accidental, the trial judge should have held that there was no case to answer. This witness, as we have already indicated, went beyond what he could, as an expert, properly have said. His evidence should not have gone further than to state that there was no evidence of foul play and that what he observed was consistent with the story of the applicant. The judge was, in our view, clearly correct to hold that there was a case to answer.

30. In Ground 9 it was argued that the judge should have left the issue of manslaughter to the jury. It was argued that the judge himself recognized the existence of such an issue when he had said, when ruling on the submission of no case, that:-

"What the accused was doing was at the time very basic to a trained motor mechanic. On this evidence the jury was entitled to consider manslaughter if they acquit the accused of murder."

31. Mr. Plowman Q.C., who appeared for the applicant at trial, stated, when submitting that there was no case, that "manslaughter simply does not arise on the facts". He never resiled from that statement. It seems to us, however, that the defendant's story, it being accepted that he was a trained mechanic, did raise the possibility of criminal negligence on his part and that it was, therefore, the duty of the judge, whatever the view of counsel, to direct the jury as to manslaughter.

32. However, it is plain from their verdict that the jury were sure that the applicant had intended to kill his wife and that her death did not come about as the result of criminal negligence on his part. In the circumstance we have no hesitation in applying the proviso.

33. Under Ground 15A it was argued that the judge "erred in observing to the jury that, if they accepted the evidence of Professor Ferris, they could find that the appellant had not told the truth in his statements when he asserted that the deceased was in the motorcar when the fire started." It is necessary to look at what the judge said to the jury. He told them firstly that there was no contradiction between the statements of the accused but went on to say:

"There is only one matter you can find that these statements are not true, and therefore the accused was lying, that is, if you accept the evidence of Professor Ferris that the woman could not have been in the car when this explosion or fire occurred."

It was Mr. Mullick's contention that the applicant had never said she was in the car when the fire started. We have set out what the applicant said in this regard. While he did not say so in terms, it seems to us that the clear and only implication from what he said was that the deceased was in the vehicle at the time when the explosion occurred and the fire started. We find no error on the part of the judge in this regard.

34. When arguing this ground Mr. Mullick submitted, further, that the evidence of Professor Ferris was so contradictory that the jury should have been told that no weight could be attached to it. We have already dealt with this contention when reviewing the evidence. We are satisfied that the evidence was not contradictory and that the evidence was properly left by the judge for the consideration of the jury.

35. Issue was taken in Ground 16 with the following comment made by the trial judge:

"Well, that is all I would read to you, members of the jury, but I urge you to read the whole statement again yourself very carefully because it is important. Whether this statement is true or false is the crux of this case. But there is only one observation I would make to you - it is a very full and detailed statement. Remember the man had gone through a shock of an intense fire with his wife being burned to death not long ago, just about a day ago or so, would he have been able to recollect all these details when he was interviewed by the police less than a day later? So that is a matter perhaps you may take into account, or you may think that might be a statement that he had prepared beforehand?"

It was submitted that this possibility was never canvassed at trial and that no opportunity was given to the defence to make submissions or to address the jury thereon. What the judge said was no more than a common sense observation. It was one which he was entitled to make, given, of course, that he left it, as he did, for the jury to make up their own minds about the matter.

36. Finally it was argued in Ground 19 that the trial judge erred in not giving the jury the standard direction with regard to the applicant's previous good character. It is true that there was evidence before the jury by way of agreed facts that the applicant had a clear record. However, given the applicant's statements in the tapes, we find it difficult to know what comment the judge could properly have made as to his "good character". Anything he said would properly have had to have been so qualified that it would have been unlikely to have been of any assistance to the applicant. In the circumstances we are satisfied that the judge's failure to give such a direction worked no prejudice to the applicant.

We give leave to appeal, treat the hearing of the application as the hearing of the appeal. We find no merit in the grounds argued other than the submission that the judge should have given a direction on the alternative verdict of manslaughter. We find, however, that this occasioned no miscarriage of justice, we apply the proviso and dismiss the appeal.