CACC 48/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 48 OF 2010

(ON APPEAL FROM HCCC NO. 234 OF 2009)

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JUDGMENT

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Hon Yuen JA:

1.  The Applicant Tang Choy was charged with murdering his wife Lam Tim-tai on 10 November 2008.  He offered to plead guilty to the lesser charge of manslaughter but that was not accepted by the prosecution.  He was tried before Madam Justice Beeson and a jury and was found guilty of murder by a unanimous verdict.  He was sentenced to life imprisonment.

2.  The Applicant has appealed against conviction and sentence.  He is represented in his appeal against conviction (but not against sentence) by Mr Paul Wu who was also his counsel at trial.

3.  At the time of the incident, the Applicant was 81 years of age and the deceased was 76.

4.  At trial it was admitted pursuant to s.65C of the Criminal Procedure Ordinance that sometime around 2 am on 10 November 2008, the Applicant hit the deceased on the head with a hammer in the bedroom of their home on the ground floor of a village house in the New Territories.

5.  The medical evidence showed the deceased suffered some 30 lacerations and blows to the head, causing brain damage of which she died later that day without regaining consciousness.

6.  At trial the Applicant advanced the defence of provocation. 

Background

7.  The Applicant had previously lived with another woman but had moved to live with the deceased earlier that year after he had had an operation.  The deceased had a self-contained flat on the ground floor of the house with two bedrooms.  Their children lived upstairs although a granddaughter had a room on the ground floor which was not connected to the flat but which backed onto the deceased’s bedroom.

8.  At first when the Applicant moved to live with the deceased, she did not wish to share her bedroom but she later relented when he said he could not sleep well by himself.  The sharing of the bedroom had led to some arguments between the two, but there had been no history of violence.  The Applicant had a clear record.

9.  On the day of the incident the deceased played mahjong with some members of the family and afterwards she and the Applicant had dinner with their daughters.  After the daughters left, they went to bed.  There was no dispute between them during the day. 

The Applicant’s evidence

10.  The Applicant alleged he could not sleep that night even though he had taken two sleeping pills.  He said his tossing and turning disturbed the deceased who then provoked him by ordering him out of her bedroom, threatening to chop him if he did not, and then going to the kitchen to get a chopper. 

11.  The Applicant said he then went to the other bedroom to get a hammer.  He alleged that after he returned to the bedroom, the deceased came into the room and closed the door which automatically locked behind her.  He said she grabbed him by his left shoulder from behind and used a knife to “slit, slit, slit” his neck.  He said “at the time I thought she was playing with me but she just chopped, chopped, chopped and slit me”. 

12.  The Applicant claimed that when he saw the blood, he was furious and lost self-control.  He turned and grabbed hold of the chopper with his left hand, in the course of which he suffered a laceration to his forehead.  He said he took the chopper from the deceased, threw it to the floor and hit her with the hammer several times; the deceased ran about the room, falling against the walls.  He then pressed her onto the floor and hit her head with the hammer.

The neighbour’s evidence

13. In the meantime, a neighbour (PW1) who had been smoking on the balcony of her house testified that she had heard no quarreling or fighting sounds from the deceased’s house, nor any other sounds, until the granddaughter came out of the house to make a telephone call. 

The granddaughter’s evidence

14.  The granddaughter (PW2), whose room backed onto the deceased’s bedroom, testified that she was studying late that night when she heard noises like moving objects, but she could not tell where the noises were coming from.  Shortly afterwards, she heard what she thought were voices from the grandparents’ flat.  She went out of the house towards the grandparents’ flat and saw the lights were off.  She listened through the open window but heard nothing. 

15.  She returned to her room but then heard moaning sounds.  She went out of the house a second time and saw a figure flash past the window. She called out twice to her grandmother asking if she was alright.  On both occasions the Applicant replied saying there was nothing the matter.  The granddaughter became aware of the smell of blood and became suspicious.  She telephoned her father (the couple’s son) asking him to go to the scene. 

The son’s evidence

16.  The couple’s son (PW3) used a gardening tool to break the lock on the bedroom door, found the deceased on the floor and the Applicant standing with blood on his face and the hammer in his hand.   After a struggle,the son disarmed and subdued the Applicant, and the police were called.  The Applicant did not speak to the son or the police after the incident.

The weapons

17.  The police found a chopper on the floor of the bedroom and a hammer under the sofa of the living room. Bloodstains on the handle of the chopper were a mixture of at least two persons, with the Applicant being the major contributor.  The source of the minor contributor could not be determined due to limited DNA typing results. 

The Applicant’s injuries

18.  The Applicant was sent to Princess Margaret Hospital.  He was first seen by Dr Lee Ka Yan at the Accident and Emergency Department.  Dr Lee’s statement was agreed and she did not give evidence at trial.  According to her statement, the Applicant had scalp lacerations over the frontal area (forehead), one laceration near the right jaw with superficial muscle involvement and multiple lacerations at the right upper anterior neck region (mostly superficial down to subcutaneous layer only).   

19.  Dr Tsang Kai Fung of the Intensive Care Unit gave evidence that he was called by the A&E Department to treat the Applicant at about 3am.  The Applicant was under Dr Tsang’s care until he was released from ICU the next day.  It would therefore be reasonable to assume that Dr Tsang was more familiar with the Applicant’s injuries than Dr Lee.

20.  According to Dr Tsang, when he examined the Applicant he found only 1 laceration wound on the forehead, 1 laceration over the right jaw, and 4 lacerations over the right neck region. At trial, Dr Tsang marked the sole laceration wound on the forehead as “A” in a photograph taken of the Applicant on 19 November 2008, 9 days after the incident.

21.  The photographs taken on that day showed more than 1 laceration wound on the Applicant’s forehead.  It was common ground that after the Applicant left the ICU, he had hit his head on a wall at the Hospital on 11 November 2008, and also at the Tsuen Wan Magistracy on 13 November 2008.   The Applicant denied that these were attempts at suicide and said that he had hit his head against the wall on those occasions because he was scared, confused, frustrated and annoyed.

22.  The prosecution sought to rely on these episodes of self-harm to support its case that the Applicant’s injuries were self-inflicted – not inflicted by the deceased – so as to disprove provocation.    

Evidence on whether wounds self-inflicted

- The examining doctor (PW5)

23.  In this respect Dr Tsang testified that any sharp blade, including a chopper, could have caused the Applicant’s injuries, but that they were “cut” wounds, not “chop” wounds.  His evidence was that he could not tell from physical examination itself whether the injuries were self-inflicted, but it was possible that they were self-inflicted as they were in areas of the body which a person could reach by himself.

- The forensic pathologist (PW6)

24.  Dr Lau Ming Fai, a forensic pathologist, was called to speak to his autopsy report on the deceased. However prosecution counsel also examined him on whether the Applicant could have inflicted his injuries on himself.  Dr Lau’s evidence on this issue was not the subject of any written report.

25.  At that point Mr Wu raised an objection that Dr Lau’s views would be speculative, but the judge ruled that he was entitled to give his opinion. 

26.  Dr Lau gave the following reasons for his opinion that the lacerations on the neck and jaw could have been self-inflicted:

(1)  the pattern of the injuries -

- they were closely grouped around one area;

- the depth of the wounds was shallow and there was no damage to the underlying structure;

- they were roughly parallel in one direction;

(2)  the location of the injuries -

- normally a person would not expose one’s neck to receive 5 attacks without moving;

(3)  the lack of defensive injuries - 

- there were no defensive injuries on the Applicant’s hands or arms;

(4) the nature of the wounds -

- the Applicant’s injuries were from sliding cuts, not chop wounds.

27. However Dr Lau agreed in cross-examination that the cuts to the neck could have been caused in several attacks rather than one single attack, and that people reacted differently to danger.

Grounds of appeal

28.  The 1^st ground of appeal is that the judge should not have permitted Dr Lau to give evidence on the Applicant’s injuries as he had not examined him, and that the judge had erred in directing the jury “effectively to give full weight” to Dr Lau’s evidence. It is also said that the judge had failed to direct the jury that Dr Tsang had not ruled out the possibility that the deceased had inflicted the injuries on the Applicant.

29.  The 2^nd ground of appeal is that the judge had failed to direct the jury to treat the doctors’ evidence with caution as their opinions were not conclusive that the injuries were self-inflicted.

30.  Mr Wu says Dr Lau’s evidence should not have been admitted in evidence.  He says that not as a matter of principle, but as a matter of the exercise of the Judge’s discretion.  He argues first that Dr Lau had not been asked to address his mind to the issue whether the Applicant’s injuries were self-inflicted prior to coming to court.  Whilst it is correct that this issue was not addressed in Dr Lau’s report, he did refer to reports on the Applicant having been injured in different incidents, so it would appear that he was not solely concerned with the deceased.  This case is completely different from HKSAR v Habibullah Abdul Rahman and others [2010] 4 HKC 301.  Dr Lau could not have been in any doubt that he was giving evidence as an expert and as such was subject to the higher responsibilities imposed on expert witnesses (para. 156). 

31.  In any event, and more importantly, Mr Wu did not cross-examine Dr Lau whether he (Dr Lau) had or had not been prepared to give evidence on this issue.  It is important to note that Dr Lau is a forensic pathologist and to quote the High Court of Australia in Velevski v The Queen [2002] HCA 4 on the question of expert evidence on the issue whether wounds were self-inflicted,

“[160] Medical doctors, and pathologists in particular, are well capable therefore of processing specialised knowledge enabling them to offer informed opinions as to the infliction, self or otherwise, of injuries. Their experiential knowledge of the pathology of blood, tissue, bone, and additionally, of the way in which vulnerable parts of the body may be reached with weapons would, on that basis as well, qualify them to express an opinion on this matter”.

32.  Nor did Mr Wu object at the trial that this evidence was sprung on the defence.  He did not ask for an adjournment for Dr Lau to prepare his statement in writing so that he could study it first before cross-examination, or if appropriate, call evidence to contradict it. 

33.  It is true that Dr Lau had not examined the Applicant personally but it is clear from R v Mason (1911) 7 Cr App R 67 that this would not render the evidence inadmissible.

34.  As for the weight to be given to the evidence, the judge twice reminded the jury that Dr Lau had not examined the Applicant (transcript p.49D-E, p.62H-I) so this was a matter of which the jury was aware.  Further, Dr Lau’s evidence was based on cogent reasoning based on facts visible from the photographs, such as the location of injuries and pattern of wounds, which indeed were matters referred to in Velevskiat [159].  It is also relevant to note that the Applicant’s evidence of an attack by the deceased was contradicted by the evidence of the neighbour that she had heard nothing from their flat, and by the evidence of the granddaughter that the Applicant had twice denied that anything was the matter even when she could hear the deceased moaning inside the bedroom.  The opportunity that the Applicant had to inflict injuries on himself was also evident from the son’s evidence that he had to prise open the lock to the bedroom with a gardening tool and that he had called out at the time why the door was locked.  There was a time gap of half an hour between the granddaughter hearing the grandmother’s moaning and the time when the son managed to enter the bedroom.

35.  As for the argument that the judge had failed to direct the jury that Dr Tsang had not ruled out the possibility that the deceased had inflicted the injuries on the Applicant, the judge had reminded the jury that there was no clear evidence that the Applicant’s jaw and neck injuries were self-inflicted (p.62C), which amounts to the same thing.

36.  In respect of the 2^nd ground of appeal, the judge had also reminded the jury that it did not need to accept the evidence of the experts, even if unchallenged (p.40 F-I).

Conclusion

37.  In conclusion, the grounds of appeal against conviction are not arguable and I would dismiss the application for leave. 

38.  It follows that it is not necessary to deal with the application for leave to appeal against sentence.

Hon Hartmann JA:

39.  I agree and have nothing further to add.

Hon McMahon J:

40.  I agree.