HKSAR v. NG PING CHI

CACC317/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 317 OF 2009

(ON APPEAL FROM HCCC NO. 40 OF 2009)

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

BETWEEN

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

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

REASONS FOR JUDGMENT

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

Saw J (giving the judgment of the Court) :

1.  On 18 September 2009 the applicant was convicted after trial before Beeson J and a jury of murder contrary to common law and punishable under section 2 of the offences against the Person Ordinance, Cap. 212.  He was sentenced to life imprisonment. 

2.  On 15 December 2009 the applicant was granted legal aid and Mr Gerard McCoy SC was assigned, instructed by Messrs Henry Wan and Yeung.  On 18 December 2009 Mr McCoy advised that there were “no arguable grounds of appeal”.  As is the usual practice he advised that he would attend the hearing of the application and assist the court, if necessary.  On 23 June 2010 the Legal Aid Department advised that Mr Phillip Ross had been assigned in lieu of Mr McCoy to attend the hearing.  He like Mr McCoy had determined that there were no arguable grounds of appeal.  

3.  On 30 June 2010 we dismissed the application for leave to appeal conviction and indicated we would hand down our reasons in due course.  These are our reasons. 

4.  The victim named in the indictment was Miss Wong Wing-In (we shall refer to her as “the deceased”).  She was aged 36 when she died.  At the outset of her summing up the judge outlined the issues in the trial she said :

“ Members of the jury, as you know, on 1 August 2008, Miss Wong Wing-in attended at the offices of a company called Sea Linker. She had told her boyfriend, who gave evidence as PW1, that she was going to collect money and she arrived at the building at about 10.55 pm and was met by the accused. You have seen the CCTV film which shows the accused and Miss Wong going up to the 23rd floor. That was the last time that Miss Wong was seen alive by anyone, as far as is known, apart from the accused. What happened to her at that time is known only to the accused.

The last contact with Miss Wong was when she made a telephone call to her boyfriend at 11.32 pm on 1 August. At that time, she told her boyfriend that she ‘had not finished yet’, but that she would meet him shortly for snacks. He told us in evidence that he expected her, probably at about 1 or 2 o’clock.

At about 2.47 am on 2 August 2008, the CCTV reveals the accused pushing a trolley from the 23rd floor offices down to the basement where the company vehicles were kept. There was a box positioned vertically on the trolley. It was a box that was ordinarily a container for oysters. On that occasion, it contained the dead, or dying, body of Miss Wong.

The accused, at a later stage, told the police that he had driven the body to the Kwun Tong Ferry Pier and there pushed the body into the water after cutting open the carton. The body was not found until 16 August 2008 when the decomposed body of Miss Wong was found caught in the rocks on the breakwater at the pier.

The accused had in fact been arrested on 7 August 2008 and, on that day and the following day, the 8th, he gave statements to the police which were recorded on videotape and which have been shown in court. You have the transcripts and the translations of those tapes. He also gave what was termed a reconstruction of the events as to what happened at the ferry pier.

Basically, he gave an account of a dispute between him and the deceased. His account initially was that there was a dispute between him and Miss Wong because she wanted him to repay a large sum of money that had been paid out to him in various instalments between January and June of 2008. Later, that account was changed. In the later account, the accused said that the dispute was caused because Miss Wong owed him money and was refusing to pay it.

There were varying accounts given of what happened on the night in question. The accused admitted that he had killed Miss Wong but, in the videotaped interviews and his evidence in court, there are slightly different versions of how events actually unfolded. Initially, he appeared to say that he had acted in self-defence, that Miss Wong had attacked him first, that they had fought together and struggled and, in the course of that struggle, he had inadvertently picked up a piece of wooden pole and hit her on the head with it, causing the four linear fractures and the three compressed fractures that were referred to in the evidence of the pathologist. You can see those fractures quite clearly in the photographs that were taken at the autopsy. If Mr Ng had been acted in self-defence and that was not disproved by the prosecution, he would be entitled to a complete acquittal.

The second account of events showed that the accused killed the deceased intending to do so, intending to kill her or cause her grievous bodily harm, but that the provocation that was offered to him by Miss Wong on the occasion of the dispute was such that he is able to rely on it to reduce the charge of murder to one of manslaughter.

Most of the evidence at this trial has been put before you unchallenged. There have been a few oral witnesses. The accused confirmed, in his evidence, that he adopted what he had said in his video interviews and then went on to make some exceptions to that, and he supplemented what was in his video interviews with what he told you in court. He is quite clear that he did actually kill Miss Wong.

What is in contention and what you have to decide in this case is what the accused’s intention was at the time he killed Miss Wong. Did he intend, at the time he was hitting her on the head, to kill her? Or did he intend to cause her grievous bodily harm? If you found that he intended to kill or cause grievous bodily harm, the prosecution would have satisfied you that he had committed murder. The prosecution says that he had the intent to kill in this case; that is the way they have based their case.

The issue in this trial is intention, and that is quite different from motive. You do not have to concern yourselves with the question of motive. It has been suggested, on the basis of his interviews and on what he said in court, that the accused did have a motive which was that he wanted to avoid paying the very large debt that he allegedly owed her. The prosecution says that is a very clear motive and the reason why Miss Wong was killed.

However, the prosecution does not have to prove the existence of the motive. If, after all the evidence has been considered by you, you cannot be satisfied as to whether the accused had a motive to kill, that does not affect the prosecution case. The prosecution has to prove that he had the requisite intention to do grievous bodily harm or to kill, and you have to be sure about that before you could find him guilty of murder.

…”

5.  It was an admitted fact in the trial that the applicant had caused the death of the deceased. 

6.  Subsequent to being advised of Mr McCoy’s opinion the applicant wrote to the court.  In a letter dated 23 April 2010 he provided his grounds of appeal.  As that document in part complained of the conduct of his counsel in the trial that letter and a certified translation were forwarded to his counsel (Mr John Hemmings) for his comments. 

7.  On 3 June 2010 Mr Hemmings provided an affidavit setting out his response to the applicant’s complaints which were referable to his conduct of the trial.  We accepted the contents of that affidavit and did not need to hear from Mr Hemmings in person.  

T he grounds of appeal

8.  The applicant’s homemade grounds of appeal, which are contained in his letter dated 23 April 2010, can be summarized as follows :

(a) his counsel improperly and without his consent objected to parts of the evidence of PW2 a female friend of the deceased which, the applicant said, supported his defence;

(b) he had never admitted, either in cautioned interviews or in court, that he owed the deceased any money;

(c) the CCTV footage supported his version that there had been a conflict at the scene;

(d) prosecuting counsel improperly crossed-examined him about his relationship with his employer; and

(e) the trial judge erred in not disclosing to the jury that he was willing to plead guilty to the charge of manslaughter.

Item (a)

9.  In his affidavit Mr Hemmings explained that he objected to the prosecution eliciting from PW2 hearsay evidence of a conversation that the deceased had had with her.  We have looked at the witness statement of PW2 and agree with Mr Hemmings that the evidence of that conversation could have given support to the prosecution’s case that the applicant owed the deceased money, which explained why she went to the applicant’s work place that night.  The exclusion of that part of her testimony was therefore to the benefit of the applicant.  The fact that his counsel did not seek his approval to object to that part of her evidence does not assist the applicant.  This was a decision, a proper one we consider, taken by counsel in the course of the trial in the exercise of his judgment.  No valid criticism can be made of it. 

Item (b)

10.  At the commencement of the summing up the judge pointed out that, after he was arrested, the applicant was alleged to have said he owed money to the deceased and that he later retreated from that position.  In his video recorded interview and in his evidence he insisted that it was the deceased who owed him money. 

11.  When dealing with this aspect of the applicant’s evidence the judge succinctly put it in perspective she said :

“ … overall, the evidence about the money really only goes to credibility. It does not show us what the true situation was or what the true nature of his dealings with the deceased was. Whatever the financial dealings were, it is clear that Miss Wong arranged the meeting and the dispute was over money.”

We considered that nothing more was required. The applicant’s complaint was misconceived.

Item (c)

12.  There was no merit in this complaint.  The CCTV footage was part of the circumstantial evidence which went to show that the applicant was the killer — unnecessary as it transpired because that was an admitted fact.  It, however, shed no light on how the dispute, if any, arose between the deceased and the applicant. 

Item (d)

13.  The applicant did not spell out clearly what the objection was or how the cross-examination affected his defence or in what way it was improper.  It is apparent that the applicant’s relationship with his employer was marginally relevant to one issue in the trial namely the source of funds obtained by him to support his admitted gambling habit.  It was therefore proper in the circumstances for the prosecution to explore that relationship in cross-examination. 

Item (e)

14.  Counsel for the applicant had advised the applicant, that in view of what the applicant said in the cautioned interviews, “self-defence” was a live issue and that a plea of not guilty was open to him on arraignment.  The applicant instructed counsel he was willing to plead guilty to manslaughter on the ground of provocation.  This was not acceptable to the prosecution.  The applicant’s complaint was that the jury were not told of this.  It has been a practice for many years in murder trials in the High Court that where a defendant wishes (no doubt on the advice of and through his counsel) to inform the jury that he is willing to admit and plead guilty to the offence of manslaughter, then that is done.  That is because in such circumstances the issues will often be narrow and their resolution in favour of the defendant will be consistent with his defence.  This approach is not a principle of law but a rule of practice and as such will, as to whether it is allowed by the court or not, depend upon the circumstances of the case.  In the present case adopting that practice would not have been to the benefit of the applicant.  Such a plea would entail an admission on the part of the applicant that he had the intention to unlawfully kill or to cause grievous bodily harm to the deceased which, in the circumstances of the case, would have been inconsistent with “self‑defence”.  If the jury had been alerted to his proposed plea this defence would have been undermined. 

The summing up

15.  The jury were directed to first consider self-defence and to acquit the applicant if this had not been disproved by the prosecution.  If self-defence had been disproved they were directed next to consider the issue of the applicant’s intention at the time he killed the deceased. 

16.  The jury were directed that if the prosecution had not established that the applicant intended to kill or cause grievous bodily harm to the deceased their proper verdict, if they had rejected self-defence, should be manslaughter.  However if the prosecution had established the requisite intent for murder the jury were directed to consider the partial defence of provocation. 

17.  Given the evidence and the issues, we were satisfied that these directions were appropriate, in the context of how the defence case was presented at trial and that, where necessary, suitable reference to the relevant evidence was given. 

18.  In short, no valid criticisms could be made of the summing up. 

19.  On his behalf at the hearing of the application Mr Phillip Ross brought to our attention matters raised by the applicant with him in addition to the above.  It suffices to say that given it was an admitted fact that the applicant had killed the deceased those were irrelevant. 

20.  There was one matter that initially concerned us.  In the summing up the judge referred to the evidence of PW1 — who was the boyfriend of the deceased she said :

“On 1 August, he said that the deceased ate in his restaurant and left about 10 o’clock, saying that she was going to collect some money. He received a call at 11:32 p.m. The deceased said to him ‘it has not been fixed. Once it is over I will come to have night snacks with you.’”

21.  This was hearsay and inadmissible.  Standing alone it could have supported the prosecution’s contention that the applicant had a motive to kill the deceased namely to avoid the repayment of monies she had lent to him. 

22.  However in the passage cited in paragraph 11 above and the direction shortly after where the judge said :

“… the question of the dispute is one for you to consider and it is probably just simplest to say that it was a dispute, you cannot be certain about what it was all about or what the relationship was, and it is not particularly relevant in terms of dispute.”

The judge was effectively telling the jury that that the issue of who owed money to who was not the critical issue for them to determine. Immediately after these passages she said this :

“What is relevant is whether or not he acted in lawful self-defence in dealing with Miss Wong. If the prosecution has proved that self-defence is not applicable, you would go on to consider the question of intention to kill or cause grievous bodily harm in relation to the charge of murder.”

23.  Taking the summing up as a whole and these passages in particular we were satisfied that the jury’s attention was properly focused by the judge not on the question of money owed by one to the other but rather the fact that there was that night a dispute between the deceased and the applicant. 

24.  Given this we were satisfied that whilst there was an irregularity in the admission into evidence of this hearsay conversation the irregularity was in all of the circumstances immaterial. 

Conclusion

25.  There was no substance in the complaints made by the applicant.  The application for leave to appeal was dismissed.