HKSAR v. WONG LAU HING

CACC 374/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 374 OF 2011

(ON APPEAL FROM HCCC NO. 110 OF 2010)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

Introduction

1.  On 5 September 2011 the applicant was convicted after trial before Barnes J and a jury of the offence of murder.  The charge was that on 22 October 2009, he murdered Wong Kwan Hung (“Wong”).

2.  This is his application to appeal that conviction.

The evidence

3.  At the date of the events in question, 21 October 2009, the applicant was aged 70 years and Wong aged 74 years.  They lived as tenants in separate rooms or cubicles on the fourth floor at 11 Yiu Tung Street in Shamshuipo.  The applicant occupied room 5 and Wong and his wife occupied room 1. The rooms were separated by a corridor (along which were a number of other similar rooms or cubicles occupied by other tenants) and were opposite each other.  The rooms were at one end of the corridor, close to a window at that end.  Wong and his wife had lived there for some years and the applicant for about one year.

4.  The evidence showed that the relationship between the applicant, on the one hand, and Wong and his wife on the other, was problematic.  According to the applicant’s account, Wong and his wife seemed to go out of their way to irritate him; Wong in particular by banging the corridor window against its frame, especially when the applicant was sleeping or trying to sleep.  There was evidence from a rent collector that the applicant complained to him about Wong’s behaviour on at least a couple of occasions.  The applicant said that the Wongs were given to banging their room door to irritate him and were in the habit of deliberately bumping into him.  There was also evidence from one of the tenants that Wong played videos very loudly.  It must be said that at least one other tenant testified that the applicant tried occasionally to be kind to Wong by giving him small gifts, such as bunches of grapes; but the tenants were generally aware of the strained relationship between the two men.

5.  At about 9 pm on 21 October 2009, four people, of whom three were tenants at the premises, were playing mahjong in room 11, at the opposite end of the corridor.  They heard no commotion, perhaps because of the loud noise of the mahjong tiles.  The first they knew that something unusual had happened was when they saw the applicant appear at the doorway of room 11, covered in blood.  He told them that he had chopped someone and he asked them to leave.  They left the room and one of them called the police.  Wong was lying in the corridor and was taken to the Caritas Hospital where he died the following day.

6.  It was common ground that, at the hands of the applicant using a chopper, Wong had sustained 169 wounds to his body including quite a number consistent with Wong taking defensive action. There were severe injuries to the neck of the deceased and two places at which the chopper had gone through the skull.  The evidence of a pathologist was that, contrary to the testimony of the applicant at trial, it was unlikely that the deceased had remained standing during the entire course of the assault offered by the applicant; the evidence suggested that towards the end of the attack, the deceased must have been lying on the floor.

7.  By contrast, when the applicant was examined by a doctor on 21 October 2009, he suffered a wound to the left knee and a small cut to the little finger of his right hand.

8.  Not surprisingly in the circumstances, self-defence was never an issue in the case and the applicant pleaded guilty to manslaughter on the basis of provocation.  In his testimony, the applicant denied that he intended to kill Wong or to cause him really serious harm but, in reality, the issue in the case was provocation.

9.  There were two accounts provided by the applicant: the first was in an interview which took place between 5 pm and 6 pm on 22 October 2009 and the second was his testimony at trial.

10.  In his interview, he told the police that he was sleeping at about 9:10 pm on 21 October when Wong was making noises with the window and the applicant, at the door of his own cubicle, protested; at which point Wong took hold of a stool and struck the applicant on his head and twice on his body; whereupon the applicant moved back into his own cubicle and took hold of a chopper with which he chopped Wong; and there was then a struggle during which Wong grabbed the chopper from him and chopped him on his leg.  But the applicant retrieved the chopper and used it to strike Wong with blows which landed on Wong’s head and other parts of his body.  The applicant had no idea how many times he struck Wong.  Then, according to this account, Wong took the knife from the applicant again but the applicant pushed him down and chopped Wong when he was lying on the floor.  In this interview, he provided a broad description of the irritation visited upon him by the Wongs in the year in which he, the applicant, had been residing at the premises.

11.  His oral testimony was different in material parts.  He said that after he had protested at the disturbance that Wong was causing, Wong punched him and then struck him on the head with a stool whereafter the applicant backed away into his room and fell down.  Before he could stand, Wong kept striking and kicking him despite the applicant’s pleas to be left alone.  Pausing there, this differed materially from the interview account that the applicant deliberately went back into his room to fetch the chopper.

12.  At this stage, so his evidence continued, the applicant took hold of the chopper which was to hand and waved it at Wong and chopped him.  He, the applicant, was emotional, agitated and in pain.  Wong returned to his own room but about a minute later re-appeared and kept on striking the applicant and took hold of the chopper and chopped the applicant on his left knee.  The applicant retrieved the chopper and chopped Wong.  He did not know how many blows he inflicted on Wong: he was very agitated and very emotional.  The struggle moved into the corridor and when Wong stopped attacking him, the applicant helped Wong to sit down against a partition wall.  All the chop wounds which he inflicted upon Wong were inflicted whilst Wong was standing on his feet.  He knew, he conceded in cross-examination, that at one stage Wong was defending himself but that he, the applicant, ignored those attempts at self-defence.  He agreed also that after he had left Wong in the corridor leaning against the wall, he had done nothing to help Wong.

The Grounds of Appeal

13.  The first complaint advanced on behalf of the applicant is that the judge ought to have emphasised that the evidence of the blood in the two rooms – rooms 1 and 5 – tended to support the version put forward by the applicant in that there was little blood in room 1 to suggest a severe attack in that room but much more blood in room 5 which evidence tended to support the applicant’s account.  There is nothing, with respect, in this complaint for the point was sufficiently made in the course of the summing-up.

14.  The second ground seems to be that the judge did not explain to the jury how to approach “may” or “might” in the direction which he gave; that if they concluded that the applicant was or might have been provoked they were to ask themselves whether that conduct was, or might have been, such as to cause an ordinary and sober person of the applicant’s age and gender to do as he did.  We see no merit in this ground.  “May” and “might” are self-explanatory.

15.  The third complaint was that the judge failed adequately to sum up the applicant’s version of events and we are satisfied that there is nothing in this ground either.  Her reminder of his evidence was fulsome.

16.  Two matters, however, raised of our own motion, exercised us and we canvassed them with counsel.

The character direction

17.  The first arises from the nature of the judge’s direction in relation to good character.  She correctly directed the jury that the fact of previous good character supported the applicant’s credibility.  Then, as to the effect of good character on propensity, she said:

“ … The fact that he is of good character may mean that he is less likely than otherwise might be the case to commit a crime of murder.”

18.  That is the standard second limb of the good character direction.

19.  We wished however to consider the Opinion of the Privy Council in Paria v The State, No. 42 of 2002, unreported 15 April 2003, in which reference was made to Langton v The State No. 35 of 1999, unreported, 15 May 2000 where “the Board observed inter alia that the jury should have been reminded that a man of good character might be unlikely to indulge in very serious violence without first being provoked.” (see Paria paragraph 19).

20.  In the present case, the question whether there was provocation offered by Wong, the deceased, was not really in issue; so a Paria direction in the terms we have cited would not have taken matters further and, in our opinion, the direction given was adequate to the case.

21.  It may upon a close analysis be said that there is a flaw in the logic of the second limb of the standard direction in a case where the accused pleads not guilty to a charge of murder but guilty to manslaughter on the basis of provocation and where the issue is whether there were words or conduct or both that caused the applicant to lose his self-control.  In such a situation, the accused has admitted that he has committed homicide so the suggested illogicality lies in telling the jury that the fact of his good character means that he is less likely than otherwise might be the case to commit “such a crime”.  But a juror, thinking logically might, so the argument goes, say to himself: “But the accused has admitted committing a crime (manslaughter), and a serious one at that.  So how does his good character help him, other than in relation to his credibility?”  This is the effect of the comments of Lord Taylor CJ in R v Vye [1993] 1 WLR 471 at 477:

“The defendant’s argument that he has never stooped to murder before would be countered by the fact that he had never stooped to manslaughter before either. Nevertheless, there might well be a residual argument that what was at issue was intent and he had never shown any intent to use murderous violence in the past.”

22.  We note that the suggested formula in Paria and Langton arose in the context of cases in which no propensity directions of any kind were given.  We note too that despite the suggestion in Langton and Paria, the standard directions on good character and propensity in murder/provocation cases have not been changed in the directions suggested for judges in England and Wales.  The point, in our view, is that the standard direction will normally convey to the jury the key message that a defendant, by virtue of his good character, is less likely to be guilty of that which is alleged against him, namely, an unprovoked killing with intent.  Accordingly, whilst a judge may in a particular case think it useful to utilise the Paria formula, the failure to do so is most unlikely to constitute a material error.

The last straw direction

23.  The second matter which exercised our minds arises from a judge’s obligation, where provocation is left to the jury as a defence, to identify the provocative conduct relied upon.  That the judge did so is undeniable but the question is whether she gave disproportionate attention to the irritating behaviour of the Wongs in relation to the window noise in the context of explaining to them that “an incident which is trivial when examined in isolation might nonetheless be one which might cause a reasonable man to act explosively in the context of provocation over an extended period,” at the expense of the emphasis placed by the applicant in his testimony, not so much on the noisy window episode that night against an irritating background history, but on Wong’s (suggested) physically violent behaviour that night against that history.

24.  Having reminded the jury of the ingredients of the defence of provocation, she said as follows:

“Was the defendant provoked in the legal sense at all? Did (Wong) say and/or do something to the defendant which caused him to suddenly and temporarily lose his self-control? What did (Wong) say and/or do to the defendant on 21 October 2009?

According to the defendant’s testimony in court, the deceased denied causing nuisance to the defendant when the defendant complained. The deceased used abusive language to scold the defendant and he punched the defendant on the defendant’s chest. The deceased then picked up a stool and struck the defendant’s head on the left side causing him great pain. When the defendant backed into his own room, the deceased continued to strike the defendant despite the defendant asking him to stop.

The deceased kicked the defendant before the defendant grabbed the chopper to wave at the deceased, chopping the deceased.  It was when the deceased came back after retreating to his own room to strike at the defendant, that was the time when the defendant was resting his head on his right arm, then the second attack occurred.  The defendant said he chopped the deceased after he succeeded in grabbing the chopper back from the deceased and after the deceased had chopped him on his knee and injured his finger.”

25.  So far, so good.  But there then follows almost seven pages of the summing-up devoted entirely to the nuisance allegations – the nuisance of the window noise on 21 October 2009 and the past behaviour of Wong in similar vein; culminating in the question:

“So was this a case of the last straw that broke the camel’s back? Was the past behaviour of the deceased such that even when the incident of the squeaky window and the deceased’s words and acts on 21 October viewed in isolation might appear to be trivial, it was nonetheless an incident which might cause a reasonable man to react explosively in the context of provocation over an extended period?”

26.  The question is whether the very extensive attention given by the judge to the window incident and the background of irritating behaviour risked moving the jury away from the importance to the defence case of provocation of Wong’s suggested violence that night.

27.  We think not.  It is clear from the closing speech of counsel for the applicant at trial that he concentrated heavily upon his client’s contentions as to Wong’s use of violence, closing his speech by saying:

“So please consider the matter in the light of all the circumstances and I would say that hitting by chairs and repeatedly failed to stop upon the defendant’s request is a provocation and I pray you to return a verdict of not guilty to murder.”

28.  It is difficult rationally to conclude against the background of lengthy evidence by the applicant as to the use of violence by Wong and what triggered his loss of control, and against the background of the judge’s identification of the suggested violent behaviour immediately following her question, put in the context of a provocation direction: “What did (Wong) say and/or do to the defendant on 21 October 2009?”, that the jury did other than treat the suggested violence, if it occurred, as central to the issue of provocation.  Clearly, it did not strike Mr Fung at the time or thereafter as framed in such a way as to carry the danger which at first concerned us; and, further, the last straw scenario upon which the judge spent so much time was one which the jury was indeed required to consider in the event that they rejected the allegation that Wong had used the applicant with violence that night, but accepted that Wong had once again deliberately annoyed the applicant by banging the window against its frame.  The presence of but one cut to the applicant’s knee and a minor cut to one finger as the sum total of his injuries as well as the absence of any injury to his head, rendered wholly unlikely the acceptance by the jury of his account of Wong’s violence; for which reason the judge’s emphasis upon the window banging as the last straw basis for the defence was the more understandable.

Conclusion

29.  Accordingly, we dismiss the application.