HKSAR v. POON MAN SUM

CACC 399/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 399 OF 2015

(ON APPEAL FROM HCCC NO 157 OF 2015)

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REASONS FOR JUDGMENT

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Hon Macrae JA (giving the Reasons for Judgment of the Court):

1. This is an appeal from a retrial, this Court having, on 23 April 2015, quashed the applicant’s conviction for Murder and ordered that the applicant be retried upon the same count on a fresh indictment before another judge[1].

2. On 17 November 2015, by the unanimous verdict of the jury following his retrial before Deputy Judge McMahon in the High Court (the “judge”), the applicant was sentenced to life imprisonment.  He subsequently sought leave to appeal against his conviction.

3. On 17 May 2017, we refused the application for leave to appeal against conviction and dismissed the appeal, saying that we would render our reasons into writing in due course.  These are our reasons.

The prosecution case

4. There was no dispute between the parties that on 28 November 2012, at the home of Ms Law Yuk Yu (the “deceased”), at Kwong Fuk Estate, Tai Po, New Territories, the applicant had a confrontation with the deceased, as a result of which she sustained injuries from a knife held by the applicant; although there was an issue as to how many stab wounds the applicant had actually inflicted, and the circumstances in which they were inflicted[2].

5. A set of Admitted Facts, signed by the parties, listed the forensic pathologist’s findings.  It was thereby agreed that the deceased had suffered four stab wounds to the back of her torso; three of the wounds (two of 10 cm in depth, and one of 11 cm in depth) penetrating into the muscles of her back; the fourth wound (of 8 cm in depth) entering the left chest cavity through the ribcage into the lower lobe of the deceased’s left lung.  The death was due to the fourth stab wound, which had caused bleeding with extensive blood loss, as well as the partial collapse of the left lung[3]. The rate of blood loss from the fourth wound was unlikely to have been immediately fatal and the deceased could have survived for a period of time (expressed in terms of minutes)[4].

6. A fruit knife was found still buried in the back of the deceased at the site of the fatal wound, when her body was turned over by the pathologist from the supine position in which the corpse had been discovered[5].

7. The applicant and the deceased had been in relationship for about 11 months, prior to 28 November 2012.  However, the applicant had come to believe that he had a rival for the deceased’s affections.  As a result, between 31 October 2012 and 25 November 2012, the applicant had on several occasions telephoned one Chan Tai Wai (“Chan”), urging him not to court his girlfriend.  The applicant, the deceased and Chan were all colleagues working as security guards at Coastal Skyline, a residential complex at Tung Chung, in Lantau North.

8. It was also an Admitted Fact that, on the afternoon of 29 November 2012, in the employee’s changing room at Coastal Skyline, the applicant attacked Chan’s head twice with a chopper and pursued him as he fled.  However, the applicant was intercepted and subdued by a security supervisor of the company, to whom the applicant said “Don’t stop me. I want to die”.  One or two minutes later, the applicant released his grip on the chopper, and he was subsequently taken to the security guards’ office.  The police were duly summoned to the scene[6].

9. It was further agreed by way of Admitted Facts that the applicant was subsequently arrested and cautioned by SPC 48350 in respect of the wounding of Chan, whereupon he told the officer[7]:

“He stole my girl. The girl was killed by me already, I need/want/have to chop him to death too.”

In answer to further questions from the officer, who knew nothing of the killing of the deceased at that stage, and who obviously wished to understand the significance of what he was being told, the applicant went on to explain[8]: “I killed her yesterday afternoon in her home in Tai Po”; “She was my girlfriend, Law Yuk Yu.  She lived in Room 2211, Kui Wo House”; “I used a knife to stab her to death”.

10. It was further admitted that the above answers given by the applicant upon his arrest and caution were made voluntarily[9].

11. The prosecution case was that the applicant had stabbed the deceased to death in a jealous rage, because he suspected her of having a relationship with Chan[10].

The defence case

12. The applicant elected to testify at trial[11].  In brief, the defence case was that the applicant had inflicted the first wound to the deceased with the knife accidentally.  The second and third wounds were caused in self-defence, when the deceased grabbed and squeezed his genitals.  Alternatively, he was provoked into stabbing the deceased.  The applicant denied that he had inflicted the fourth stab wound, which was found to be the fatal one.

13. The applicant testified that he came to know the deceased at the security company where they were both colleagues, and began a relationship in 2011.  In around July 2012, their relationship turned sour when the deceased began contacting Chan.  On 28 October 2012, the deceased informed the applicant that she intended to terminate their relationship.  Nevertheless, the two of them went on a five-day trip to the Mainland in an attempt to reconcile their differences.  On the fifth day of the trip, the deceased told the applicant that she really liked Chan and wanted to go back to him; although, at the same time, she said that she wanted one month to think about her relationship with the applicant[12].

14. At the time, the applicant was unhappy and thought of committing suicide.  He did not do so because of his father’s impending birthday.  Then the deceased told the applicant that she would like to resume their relationship, which the applicant willingly accepted. Nevertheless, the applicant said that the deceased had continued to remain in contact with Chan.  On the night of 27 November 2012, the applicant had a long telephone conversation with the deceased about their relationship.

15. On the morning of 28 November 2012, the applicant went to the deceased’s residence.  He wanted to discuss the question of their relationship further.  However, he was unable to make contact with her by telephone, nor did he receive any response when he banged on the door.  The applicant, therefore, left and went home for lunch.  The deceased later called the applicant, and told him that she had been asleep earlier.  The applicant thereupon brought some food and was allowed to enter the deceased’s home.  After lunch, the deceased indicated that she intended to resume her sleep and, since the applicant also said that he was tired, he was given a shirt to wear and the two of them went to bed.  The applicant thought they had become reconciled and tried to embrace the deceased; however, the deceased rejected his advances and told him that she wanted to end the relationship[13].

16. The applicant then went out to the living room. He got hold of a knife, which he happened to find there, and held it to his own neck, whereupon the deceased told him not to be so childish.  At one point, the deceased told the applicant not to threaten her and if he wanted to commit suicide, he should do it elsewhere; she added that if he was that “cheap”, it was none of her business[14]. An argument developed and, at one point, the applicant pointed the knife at the deceased.

17. The deceased became frightened and retreated into her bedroom.  The applicant pursued her and when the latter picked up her telephone, the applicant tried to grab it and a struggle ensued.  As a result, the deceased fell onto the knife, which the applicant was still holding.  The deceased shouted and the applicant covered her mouth with his left hand.  The applicant said he would call an ambulance and apologised to her; however, the deceased kept struggling as if she were “crazy”.  Suddenly, the deceased grabbed and squeezed the applicant’s genitals very hard.  He became very angry, but was unable to push her away.  At that moment, he saw the knife still in the deceased’s back, so he pulled it out and stabbed her twice before she succumbed and fell to the ground[15].

18. The applicant testified that he then placed the deceased onto her bed.  He lay alongside her for some time before taking a shower.  Later, he used the deceased’s telephone to respond to some messages, in which he gave misleading information purporting to be from the deceased. The applicant then went out with his colleague, a Mr Wong, since he needed a drink due to the emotional stress of what had happened.  At about 4 am on 29 November 2012, the applicant tried to return to the deceased’s flat but he could not gain entry, having locked himself out when he had left the flat earlier.  Accordingly, he went home.

19. The defence called the applicant’s father, who described the applicant’s emotional state during his relationship with the deceased, as well as a psychiatrist, Dr Cheung (DW3)[16]. Dr Cheung testified that the applicant had a personality problem, which was an adjustment disorder.  Such a disorder would lead to anger, jealousy and depression.  He described the applicant’s personality as being timid with feelings of inferiority.  Because of his suspicions about the deceased, and his resulting anger, depression, anxiety and jealousy, Dr Cheung was of the view that the applicant had an abnormality of mind, and his ability to control his actions would be reduced.  In the circumstances which unfolded on 28 November 2012, the applicant would have had less self-control than a normal person, and was more likely, therefore, to have been provoked.

20. The prosecution called evidence from two government psychiatrists[17].  Dr Liu (PW14) diagnosed the applicant to be suffering from an adjustment disorder with depressive reaction.  Dr Siu (PW15) gave the same diagnosis, but added that he meant the applicant had a minor form of mood disorder resulting from his relationship with the deceased.  Both government psychiatrists agreed that the applicant suffered from an abnormality of mind at the material time, but that the mental disorder did not affect the applicant’s rational thinking or judgment, nor did it affect his impulses or self-control.

Summing-up

21. In his summing-up, the judge first gave directions in respect of the ingredients of Murder[18]. Then, having regard to the applicant’s testimony that the first stab wound was inflicted accidently, the judge directed the jury that if they were satisfied that the fatal injury may have been inflicted accidentally when the deceased fell backwards onto the knife, then the jury should find the applicant not guilty[19].

22. The judge also directed the jury in respect of the issue of self-defence[20].  With the assistance of written handouts for the jury, the judge then gave further directions in respect of the circumstances in which the applicant would be guilty of manslaughter only, by operation of the partial defence of provocation and of diminished responsibility, notwithstanding their finding that the applicant was otherwise guilty of murder[21].

23. Of the evidence concerning the attack on Chan on 29 November 2012, the judge directed the jury as follows[22]:

“That evidence came before you simply because the attack on Mr Chan was the reason the defendant was arrested by police and the reason why, therefore, they became aware of the stabbing incident at Room 2211 involving Law Yuk-yu. What the defendant said to the police at that time is evidence also in this present trial and it is relied upon by the prosecution. But that is the only relevance of the events concerning Mr Chan on 29 November.

As I have already told you during this trial, it would be quite wrong for you to assume in any way that the defendant’s intentions or actions concerning Mr Chan were any indication of his intent or actions at the time of the stabbing of Law Yuk-yu.  They were separate events on separate days in different locations.  It would be wrong for you to draw any adverse inference against the defendant concerning the present charge of the murder of Law Yuk-yu because of what happened between the defendant and Mr Chan the following day.  So far, therefore, as what did occur between Mr Chan and the defendant on 29 November is concerned, you must ignore it as throwing any light upon this case.”

24. In respect of the applicant’s good character prior to the killing of the deceased, the judge gave a good character direction limited to his creditworthiness: he did not give the propensity limb of the direction.

The applicant’s grounds of appeal

25. Mr Bernard Yuen has advanced two grounds of appeal on behalf of the applicant.  The first ground avers that the leading of evidence about the incident with Chan on 29 November 2012 was more prejudicial than probative, and should never have been permitted.  It is further submitted that no direction from the judge could remedy the prejudicial effect of such evidence, thus depriving the applicant of a fair trial.  The second ground of appeal complains that the failure to give the propensity limb of the good character direction was a material non-direction, which again deprived the applicant of a fair trial.

Discussion

26. We did not call upon Mr David Leung SC, with him Ms Sabra Lo, for the respondent to reply.  For there is a very simple answer to the first ground of appeal.  First, the evidence of what took place on 29 November 2012 was plainly relevant and admissible evidence to account for why the applicant was arrested, to explain how the police came to discover the body of the deceased, and, more importantly, to prove that the applicant had killed the deceased at her home by using a knife to stab her to death.  The limit of this evidence and how it might be used was carefully explained to the jury by the judge in the passage we have quoted above[23].  We have no reason to think that the jury would not have faithfully abided by that direction, and we do not accept the proposition that no direction could remedy the prejudicial aspects of the evidence.

27. As Lord Hope of Craighead put it in Taylor (Bonnett) v The Queen (PC)[24]:

“The assumption must be that the jury understood and followed the direction that they were given: see Montgomery v HM Advocate [2003] 1 AC 641, 674, per Lord Hope of Craighead. In the Supreme Court of Canada in R v Corbett [1988] 1 SCR 670, 692, Dickson CJ said that the experience of trial judges is that juries perform their duty according to law. In the High Court of Australia in R v Glennon (1992) 173 CLR 592, 603, Mason CJ and Toohey J said that the law proceeds on the footing that the jury, acting in accordance with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. To conclude otherwise would be to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions by the trial judge. In the Irish High Court in Z v Director of Public Prosecutions [1994] 2 IR 476, 496 Hamilton P expressed confidence in juries to follow the directions given to them by the trial judge.”

Such statements of principle from the highest courts of other common law jurisdictions apply equally to the confidence reposed in juries by the appellate courts of Hong Kong: see, for example, HKSAR v Kissel[25].

28. That is enough to dispose of this ground of appeal.  However, we note, secondly, that this evidence was expressly agreed to in a set of Admitted Facts signed by the applicant’s counsel at trial.  The position was that, on 3 November 2015, before any empanelment of the jury, the question of the prejudicial effect of certain parts of the proposed Admitted Facts were raised and fully discussed between both counsel and the judge.  As a result, the judge adjourned the hearing until the following day, 4 November 2015, to enable both counsel to “discuss this between yourselves, … , so you both know what each other’s approach is to this then you can make sensible submissions based on that knowledge as well as what you say the facts of the case and the issues in the case are”[26].

29. At the outset of the proceedings on 4 November 2015, the applicant’s counsel at trial confirmed that the draft Admitted Facts were now “in order” and that he would agree to them[27].  He later confirmed that he had “no difficulty with the present Admitted Facts”[28], and that “the prejudice has all been contained”[29]. Thereupon, the judge indicated that he would in any event be warning the jury that even if the applicant intended to kill Chan, it did not mean that he had the same intention during the earlier incident with the deceased[30].

30. It seems to us that the applicant’s counsel at trial dealt with the matter perfectly properly and satisfied himself, after due consideration and discussion with prosecuting counsel, that such prejudice as there was in the proposed evidence in the Admitted Facts did not exceed its obvious probative value.  No doubt, he took the view that, with the judge’s direction as to the limited use the jury may make of this evidence, it was clearly admissible and not necessarily inconsistent with the defences of provocation and diminished responsibility, which he had earlier indicated he regarded as “the real defence”[31]. As counsel candidly conceded to the trial judge during argument before the jury were empanelled, he wanted the applicant’s statement to the security supervisor when being subdued on 29 November 2012, namely “I want to die”, to be in evidence before the jury and realised he could not “have it both ways”[32] by keeping the applicant’s other admissions out.

31. Mr Yuen has accepted that he makes no criticism of counsel’s decision or competence in this regard.  In our judgment, given the care with which the applicant’s counsel at trial (and the judge) addressed and resolved this issue, this ground of appeal is untenable.

32. In respect of the second ground of appeal, the judge explained in discussions with counsel prior to his summing-up, on 16 November 2015, that he proposed to give the credibility limb of the good character direction but not the propensity limb, since the jury would know that the applicant had attacked Chan with a chopper saying he wanted to kill him.  Accordingly, as the judge remarked[33]:

“So, I don’t see how I can sensibly say to them, look, he doesn’t have the propensity to this sort of thing.”

Defence counsel did not demur at this proposal: indeed, he expressly agreed with it[34]. In fact, defence counsel had only ever sought a direction from the judge in respect of the credibility limb of the good character direction[35].

33. Again, Mr Yuen makes no complaint about counsel’s judgment or competence in this regard; and rightly so, for both defence counsel at trial and the judge were correct that the propensity limb was not appropriate in the circumstances.  There is no merit whatsoever in this complaint.

Conclusion

34. We discern no errors at all in the judge’s summing-up.  It is clear from a reading of the transcript that the applicant was provided with competent counsel who conducted a capable defence on behalf of his client.  Moreover, such concerns as the applicant’s counsel at trial had in relation to the evidence and the directions to be given to the jury were fully canvassed and appropriately resolved with the judge.  The result was a summing-up that was entirely fair to the applicant.

35. For these reasons, the application for leave to appeal was refused and the appeal dismissed.

[1] See HKSAR v Poon Man Sum (unrep., CACC 152/2014, 4 May 2015).

[2] Summing-up, AB p 20F.

[3] Admitted Facts, AB p 16, para’s. 36-37.

[4] Admitted Facts, AB p 16, para 38.

[5] Admitted Facts, AB p 14, para’s. 24-25.

[6] Admitted Facts, AB p 12, para’s. 16-18.

[7] Admitted Facts, AB p 12, para 20.

[8] Admitted Facts, AB p 13, para 20.

[9] Admitted Facts, AB p 13, para 20.

[10] Summing-up, AB p 20Q-R.

[11] Summing-up, AB pp 65O – 73J.

[12] Summing-up, AB p 68O – R.

[13] Summing-up, AB p 70E – J.

[14] Summing-up, AB p 70K – M.

[15] Summing-up, AB pp 70R – 71K.

[16] Summing-up, AB pp 74K – 76F.

[17] Summing-up, AB pp 76F – 78F.

[18] Summing-up, AB pp 36S – 37J.

[19] Summing-up, AB p 37O – S.

[20] Summing-up, AB p 41Q.

[21] Summing-up, AB pp 46P – 48E.

[22] Summing-up, AB p 23B – H.

[23] Para 23 supra.

[24] [2013] 1 WLR 1144, at 1153B-D.

[25] [2014] 1 HKLRD 460, at para’s 115-117.

[26] AB p 111N-P.

[27] AB p 113C-J.

[28] AB p 116O-Q.

[29] AB p 116T-U.

[30] AB p 117A-C.

[31] AB p 103O-P.

[32] AB pp 121N-122D.

[33] AB p 380C-D.

[34] AB p 380D-H.

[35] AB p 379H-S.