HKSAR v. YEUNG HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

-----------------

-----------------

JUDGMENT

-----------------

Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 25^th June 1997, the Applicant was convicted of murder following a trial before Wong J. and a jury. He now seeks leave to appeal against conviction.

2. The allegation was that the Applicant murdered Yim Chun-hoi (the victim) on 20^th June 1996 inside the McDonald's Restaurant at Texaco Road in Tsuen Wan. A pathologist testified that the victim had received a number of cut and stab wounds, the two most serious of which had caused his death. These were stab wounds to the abdomen and a long cut wound to the left arm that severed an artery. Massive bleeding from the wounds caused the victim to die. The general background which had led to this violent death was concerned with a dispute over wages between the Applicant on the one hand and the victim's father, Yim Kam-tuen or "Boss Yim", as he was frequently called at the trial.

3. The Applicant was employed by Boss Yim for a period of about 9 days to work at a construction site in Causeway Bay. He obtained the work through another person who worked there, called Chan Mau-sin. The Applicant was told by Chan that the daily wage was $550 and that 5 hours overtime was counted as a day's wage. The Applicant testified at the trial that he had seen Boss Yim pay Chan $1,100 for two days' wages.

4. On 20^th June 1996, and based on his understanding of the wage rates, the Applicant was short-paid by the girlfriend of Boss Yim's second son by $1,000.

5. The Applicant then made it his business to speak to Boss Yim and he duly made an arrangement with him to meet at a McDonald's. The tone of the arrangement was bad from the outset because it seems that foul language was used by both sides.

6. The Applicant admitted, both in his cautioned statements and in his evidence in the trial, that he took to the meeting the knife, Exh.60, which was used to wound the victim. Boss Yim took to the meeting two of his workers, Chan Shui-ping and Chan Tak-man, as witnesses to establish for the information of the Applicant that $500, and not $550, was the proper daily rate, whatever he may have heard to the contrary. His account was that they arrived at McDonald's at about 8 p.m. and sat near the entrance. The prosecution's case was that the Applicant then arrived, accompanied by two others. He was invited to sit down. Instead, the Applicant punched Chan Tak-man and the two men with the Applicant joined in the assault on both the Chans. These two men then ran out of the restaurant, and five more men ran inside and began to assault Boss Yim.

7. At some stage, Boss Yim saw his son, the victim, arrive and he asked for people to sit down and talk. He said that the Applicant then asked the victim who he was and, when the victim confirmed that he was Boss Yim's son, the Applicant stabbed him several times.

8. A number of other witnesses testified to these events providing some variation to the version given by Boss Yim. It will be necessary in due course to refer to this aspect when considering one of the grounds of the application.

9. The Applicant was arrested within a few hours and gave answers in the course of six interviews held over the next two days with the police. The details of these are contained in Exhs.109 to 114.

10. In essence, the Applicant's version of events as it eventually emerged, was that he had hidden the knife that he had used in the incident from which he admitted having cleaned the blood before he had put it away. Originally he told a false story about having discarded it in a litter bin. He admitted that this was the knife with which he had chopped the victim. He had carried it to the restaurant with self-defence in mind because he was afraid of his boss who was a "burly" man. The man he chopped was someone who drew out a leather belt and hit him once on the back. The Applicant said, "I then drew the knife to chop him".

11. The Applicant's evidence at trial was that when he arrived at McDonald's, Boss Yim ignored him, except to speak to him in an abusive and foul manner, which led to a heated argument. The Applicant said that he had threatened to sue Boss Yim in the Labour Tribunal. Then, as he intended to leave, Boss Yim tried to hit him, and the other two men who were with him then set on him with Boss Yim joining in. One or two others then joined in and he became scared. He tried to ward them off. He then noticed one of his attackers was bleeding from the arm. It was the Applicant's case that the injuries, which he more or less accepted he had caused to the victim, were done as the result of trying to ward off an attack. They were unintentional and, for this reason, he was not positive that he had caused the wounds. He went on to say that he had left the restaurant.

12. Whilst effectively he accepted responsibility for having inflicted the fatal wounds, two defences to murder were available to the Applicant, namely self-defence and, possibly, provocation.

13. It is against this background that Mr. Haynes, on the Applicant's behalf, has advanced 10 grounds of appeal.

14. Ground 1 is that the trial judge failed in the summing up to deal with any of the cross-examination of prosecution witnesses so that the discrepancies could be highlighted between what the various eye-witnesses had said. This, Mr. Haynes has argued, might have had the effect of showing that Boss Yim had not told the truth. In particular, it is submitted that the judge did not deal with the basis of the defence case.

15. This first point raised on the application is not a point with any substance. This was a trial that lasted only 14 days. The speeches of counsel occupied the whole of the morning session on 24^th June 1997 and, as might be expected of experienced counsel for the defence, he reminded the jury in great detail of the discrepancies in the evidence about which he wished the jury to be reminded. It follows, therefore, that the jury would have had in mind less than a day before their retirement, which was at 11:27 a.m. on 25^th June, the points that Mr. Haynes had dutifully and painstakingly covered in his speech to the jury. There was no duty on the judge to do more than give a balanced summary of each side's case which is precisely what was done.

16. The jury was also reminded that they should carefully consider and take into account anything in the speeches of counsel they considered to have merit in reaching their own assessment of the value of the evidence. Having given a brief account of what each of these witnesses had said, the judge went on to say that, given the confused and chaotic situation which existed at the time of these events, it was understandable that the evidence of some of the witnesses did not accord with others but importantly, he added, it was for the jury to decide what had actually happened.

17. A similar point is made in ground 2, that the judge did not sum up the evidence, notwithstanding that the jury had copies of the physical exhibits, which incontrovertibly supported the defence case, namely the prosecution's photographs and plan and a newspaper picture of the victim produced as 'D1' by the defence. The matters which arose from each of these points were straightforward in the extreme. The prosecution's photographs showed four drinks at Boss Yim's table which was indicative, on the defence case, that Boss Yim's group expected further reinforcement. The plan (Exh.104) illustrated that Boss Yim may have chosen a "strategic" position to await the victim's arrival. The newspaper picture of the victim showed the presence of a belt between his legs. An employee testified that he had seen a belt used in the fight. Boss Yim had denied this.

18. Once again, these points were covered by Mr. Haynes in his speech and none of them was so fundamental to the defence that it needed to be covered again in the summing up. The judge's task was to concentrate on the central issues in order to assist the jury with their task. On any view, comments that could have been made about the exhibits were on issues that were peripheral, and Mr. Haynes had launched his vigorous attack on the credibility of the prosecution's main witnesses at length in his speech only a day before. If there had been a long intervening period between the end of the speeches and the start of the summing up, there may have been a case for saying that the jury needed to be reminded of more of the evidence than might usually be the case. In this trial, it is inconceivable that the jury required a further reminder on the matters raised by Mr. Haynes for criticism.

19. Ground 3 is a complaint that the judge, early in his summing up, made a misleading and prejudicial remark that was unfair to the defence. The passage which is criticized is to be found on page 8J-M, but it is sensible to go back to page 7 to place it in the wider context. The judge was dealing with motive and intent having earlier pointed out the difference. He said at page 7S:

"In some cases, it may be useful evidence to decide whether a person who killed did so with intent to kill or to cause grievous bodily harm. If a person armed himself with a sharp and pointed knife, like Exhibit P60, before he went to a meeting to resolve some wage dispute, it may be evidence that he intended to use the knife to kill or to cause grievous bodily harm. If he, in fact, attacked someone with that knife, it would be evidence in which an inference can be drawn that he intended to kill that person or to cause him at least grievous bodily harm. But whether you will draw such inferences or not, it is a matter entirely for you."

And then the passage complained about:

          "Do you think, members of the jury, that it is reasonable for someone to attend a wage negotiation, to bring along a knife with him? You may think, but again it is a matter for you, if you had anticipated some danger of an attack from the other side during the meeting, you might have thought carefully whether you should go to that meeting at all. But again, these are really matters for your consideration."

20. In the judgment of this court, this was a statement containing a number of very obvious comments which the judge was perfectly entitled to make, provided, of course, he left the issues and the inferences to be drawn to the jury. In the event he did precisely that.

21. There is one further passage of which complaint is also made, where the judge used the phrase "rightly or wrongly, the accused believed that he was short-paid ...." Mr. Haynes submits that the evidence shows that the Applicant probably rightly, and certainly sincerely, believed that he was owed wages. This may be so, but it was nevertheless a matter of dispute and the neutral way of expressing it was the way chosen by the judge which can in no sense have prejudiced the Applicant's fair trial.

22. Grounds 4 and 8 can be taken together. Provocation was made the subject of a direction to the jury out of what Mr. Haynes accepts was perhaps an excess of caution. At no stage during the trial did the Applicant ever claim that he had lost his self-control. His defence was more akin to an accident which had occurred as he waved the knife around trying to ward off people. Nevertheless, on the judge's direction as to provocation, Mr. Haynes submits that the judge erred by failing to make any reference to individual characteristics of the Applicant. He cites as examples, the fact that the Applicant was smaller in physical build than Boss Yim, and was weaker than Boss Yim, and also that he was scared of him. He points to the fact that the Applicant was blind in his left eye, which is the side the Applicant claimed in his evidence to have been seized by the neck during the course of the incident. In addition, Mr. Haynes submits that the defence were wrongly prevented at trial from introducing evidence about Boss Yim's "fierce reputation" which was, subjectively, highly relevant to the Applicant's reason for having a knife with him.

23. This last matter raised by Mr. Haynes is not a consideration which could have had any bearing upon the defence of provocation although it may have been strong evidence from which a jury might infer that the Applicant took the knife intending to use it if the occasion arose. It could also be said that it was evidence that was strongly indicative that any defence of self-defence was ill-founded. There is, however, merit in the argument that the judge was wrong to prevent the Applicant from giving evidence in-chief as to the general reputation of the victim's father but this was not, in the context, a matter of any significance.

24. The statutory defence of provocation set out in section 4 of the Homicide Ordinance, Cap. 339 reads:

          "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

25. The judge accurately summarized this section and its effect for the jury's benefit, and went on to say on page 24B of the bundle:

26. The question which we have been asked to consider is whether this was a sufficient direction in all the circumstances. We bear in mind that Mr. Saw S.C., on behalf of the Respondent, may well be right that a direction as to provocation was probably unnecessary. This is not a matter we have needed to decide as the giving of such a direction can in no way have prejudiced the Applicant. We have concentrated therefore on whether the direction was flawed by the absence of any reference to the Applicant's personal circumstances. We are quite satisfied that the fear which the Applicant said he felt towards Boss Yim had no application to provocation any more than the Applicant's blindness in one eye. The only reason that provocation was even a possible issue was because of the Applicant's belief that he had been short-changed over the amount he believed he should have been paid. There were no special characteristics to be taken into account affecting the gravity of the provocation in question. It might have been a different situation, indeed it would have been, if the Applicant was being ridiculed on account of his partial blindness or his obvious weakness compared to Boss Yim. There is no substance in these grounds.

27. However, arising from grounds 4 and 8, we did consider whether the judge should have given a direction to the jury that they could convict of manslaughter, by reason of lack of intent, in the event that they found murder had not been proved but that the Applicant had unlawfully caused the death of the victim. It goes almost without saying that such a direction would not have assisted the Applicant because the jury were satisfied that murder had been proved. However, on the facts in this case, bearing in mind the hideous injuries inflicted upon the victim, such a direction would not in our judgment have been appropriate in any event.

28. Grounds 5 and 6 were taken together by Mr. Haynes and we have approached them in the same way. In these grounds, it is submitted that an inadequate direction was given to the jury about their approach to the alleged answers given by the Applicant to the police bearing in mind the challenges made about the conduct of the police during those interviews.

29. Turning to page 18 in the bundle, the judge gave an appropriate direction and one that was perfectly adequate, where he said:

          "Now, in deciding whether these statements or records of interviews contained the words of the accused, and that they were true, you must take into consideration all the circumstances in which they were made or they might have been made."

30. The judge, during the course of the summing up, reminded the jury of the framework of allegations made against the police.

31. Mr. Haynes argued that the jury should have been given a copy of the Rules and Directions for the Questioning of Suspects and the Taking of Statements. Whilst it is perfectly true that the police did concede that certain provisions in the Rules and Directions had been breached, which the jury were reminded about in the summing up, we cannot agree that it was desirable for the jury to be given a copy of the Rules, although it is often necessary to explain the way in which they have been breached. During cross-examination, police agreed that no opportunity had been given to the Applicant to see lawyers or to telephone his family. The judge reminded the jury of that as well as the nature of the allegations made by the Applicant about all the other aspects of alleged misconduct on the part of police. He then gave a standard direction to the jury as to how they should approach the evidence concerning the contents of the statements, leaving it to the jury to decide if the Applicant actually gave the answers and, if he did, whether what he said was true.

32. There is no substance in these grounds.

33. The 7^th ground relates to the direction given to the jury as to lies told to police by the Applicant when he pretended originally that he had thrown away the knife used in the killing. The judge gave a direction upon lies that is almost routinely given in cases where a full Lucas direction is unnecessary, but where a lie told by a defendant has featured as a part of the prosecution case.

34. Some direction was necessary and the judge gave this. In particular, and most importantly, he directed the jury that the mere fact of the lie was not to be taken as evidence of guilt. He went on to highlight examples where lies might be told for innocent reasons. The judge ended by saying that only if the lie was not given for an innocent reason could it support the prosecution's case. This direction was perfectly proper and there is no substance in this ground.

35. The 9^th ground of complaint is that the judge twice interrupted Mr. Haynes, who was also trial counsel, in the making of his final speech which he submits had the effect of undermining what he was saying.

36. The relevant passages in the transcript appear at pages 255H-S and 259T-260S. It is unnecessary to read these out.

37. Nothing about the first interruption could be said to have been prejudicial to the Applicant, and it is apparent from the transcript that, far from being put out his stride, Mr. Haynes actually built on the interruption and seemingly gained strength from it. The judge appeared to have been anxious to clarify the evidence which had been given in the trial at a time when it might well have seemed to him that Mr. Haynes was about to embark on a false point. His rhetorical question to the jury was answered by the judge's own inquiry.

38. The second interruption came at a time when Mr. Haynes was dealing with self-defence. Again, he does not appear to have been thrown by the interruption. It is apparent to us that in the context of this interruption the judge was making a perfectly genuine inquiry. Mr. Haynes had spoken of the victim "running" onto the Applicant's knife. The judge was concerned that no evidence of that kind had been given. Following the dialogue between counsel and the judge, it is apparent that by the time the summing up was done the following day, the judge, again in a passage that does not have to be read, at page 21 A-M, was able to deal with this issue with clarity and with accuracy.

39. No prejudice has resulted to this Applicant by these interruptions by the judge, but we do emphasize that it is generally preferable that clarification should be made at the end of counsel's address in the absence of the jury unless there is good reason for stopping counsel during his speech.

40. The final ground relates to the reference in the summing-up to the jury's approach to the Applicant's previous conviction for theft. This evidence was perfectly properly, and for good reason, introduced by the defence and had to be dealt with in the summing-up. We do not need to go into the matter in depth because the judge twice advised the jury to "ignore" the criminal record. This was sensible advice and followed a discussion with counsel which had taken place earlier in the jury's absence. There was no need to go to the lengths suggested by Mr. Haynes in his grounds, and which Mr. Haynes himself dealt with at length in his speech to the jury, to the effect that the Applicant should be treated as a man of good character with no propensity for violence. Insofar as the judge did go further on the subject of character, he reminded the jury that evidence had been called on behalf of the Applicant from his wife and his mother to establish that the Applicant was a good husband, a good father, a good son and a hard-working man who cared very much about his own family.

41. Having regard to all of these matters, the conviction for murder is neither unsafe nor unsatisfactory.

42. Accordingly we refuse leave to appeal and dismiss the application.