R. v. HUI YIU FAI

IN THE COURT OF APPEAL

1992, No. 195
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the court.

2. The applicant was convicted after trial, before Sears J. and a jury, of two offences, namely, (1) forcible detention of a person with intent to procure a ransom for his liberation; and (2) murder. This is his application for leave to appeal against his conviction of murder only.

3. The particulars of the two offences as stated in the Indictment were that on 7 November 1990 the applicant together with other person or persons forcibly detained the victim YAN Yuk-tong, and that on 8 November 1990 they murdered him.

4. The case for the prosecution was that at 6:30 p.m. on 7 November 1990, the victim was kidnapped at knife point at Whampoa Gardens, Hunghom, and thrust into the boot of a car. His hands and legs were tied, and he was gagged and blindfolded. The car was driven by the applicant with a man called Kup as passenger. They arrived at the Wellcome Supermarket and bought a towel, what was described as "string", a blade and adhesive tapes. At a secluded spot they tied up the victim.

5. There was evidence that the victim was a man of some wealth. Bank records showed that at about 9:10 p.m. that evening, the victim's ETC card was used on a number of occasions to draw money.

6. The applicant and Kup went on a joy ride around Hong Kong for sometime. They stopped at Junk Bay and spent the night there, with the victim still in the boot. The victim was beaten up severely causing, amongst other injuries, the rupture of his kidney. They got up at 8 a.m. on 8 November 1990 and continued their joy ride and spending-spree using the victim's credit card. Then they drove to Shatin and at the Yaohan Department Store bought some clothes and other items. At 7:08 p.m. they arrived at San Po Kong and bought some body-building weights and dumb bells. These weights, subsequently found tied on the person of the victim, were 17.25 kgs in weight.

7. At 11 p.m. the car was filled with petrol at Po Kong Village Road and it was then driven to the Chinese Permanent Cemetery at Junk Bay. There the victim was released from the boot of the car and strangled with a length of "string", the applicant pulling at one end and Kup the other. They also relieved the victim of his watch, jewellery, necklace, and other belongings. The applicant sold the necklace on 16 November 1990.

8. After the strangulation the victim was thrown into the boot of the car. The car was then driven along Ko Tai Road to the sea where the body of the victim was thrown in with the body-building weights tied to his body. This occurred at about mid-night. The travelling distance between the place of strangulation and the place where the victim was put into the water was about ten minutes.

9. The victim's body was located at about 8 a.m. on 9 November 1990. The cause of death was drowning. In the meantime, the applicant and Kup continued to spend the victim's money by making purchases with his credit card. At about 7 p.m. on 9 November 1990, the applicant and/or Kup met a person called Ah Dee and they asked Ah Dee to store some goods for them - these goods comprised items which had been taken from the victim's person and purchases made with the victim's credit card.

10. According to the evidence of the applicant's girl friend, WONG Yuk-mui, sometime in November the applicant told her that he and Peter - Kup was known as "Peter" - had killed a person and that "the vehicle is still at the airport". The car was found at the airport.

11. According to the evidence of the applicant's former employer, there was a meeting between them sometime after October 1990. The applicant told him he was in trouble as he had killed somebody, and he asked his former employer to find him a place for him to escape. The applicant was arrested on 21 November 1990.

12. The Police took a number of cautioned statements from the applicant. The first, taken at mid-night on 22 November 1990 (Exhibit P. 226), contained admissions that the applicant had robbed, kidnapped and assaulted the victim. He said that he had strangled the victim with a rope, and "after strangling Hui, I used iron discs and threw Hui into the sea."

13. This gave the appearance of acting alone and was stigmatised as being untrue because, as Mr. Sedgwick who appeared at trial, said to the jury "..... we know later that he gives a statement that another man was involved" - words quoted to the jury by the trial judge.

14. The next statement of significance is Ex. 220, taken in the course of a visit to the killing area and recorded in the note books of the constables who were with him. The applicant indicated where a mobile phone, the victim's credit cards and a knife had been thrown into the sea. When the post-recording of these events was read over to him the applicant said (P. 52): -

"I have something that (I) want to tell. In fact, Kup Wing Keung and I together did this case from beginning to end !"

15. He then went on to describe in detail what they had done "together" which description was, generally, in line with the sequence of events and the type of acts given in the first statement - but, of course, now involved Kup.

16. The jury also had the benefit of a video recording showing a reconstruction.

17. In his evidence at trial the applicant introduced two further characters into the plot. These were "Ah Bai" and "Ah Chong" on whom he sought to place most of the blame for that which had occurred. While he himself played a part in the events right up to the end, it was a minor role and he never expected, or intended, that the deceased would be killed - though he in fact saw him strangled with a ligature pulled tight around his neck. He explained his first statement as an attempt to shield Kup.

18. The thrust of the submissions of Mr McCoy, who appeared for the applicant in this court, went to the admission that the applicant strangled the deceased - or that the deceased was in fact strangled on whatever version of the facts the jury accepted - and the forensic evidence that death was caused by drowning. Briefly: you cannot kill a dead body; therefore there could have been no intention to kill present in the mind of the applicant when the deceased was, with his assistance, thrown into the sea.

19. He has drawn our attention to and criticised the following passage in the summing up at P. 16 R to 17 P: -

"The only slightly unusual feature about the case, members of the jury, is that the defendant in his statement said that he had strangled him to death, and it may be, if you are sure that this is what actually happened, of course, it may be that that is what he thought did happen. But there was no doubt at all that the cause of death was drowning, in other words, the man was alive when he was put into the water; he was not dead. It may be he would have died. If you remember, the pathologist said - his words, I think, were 'Drowning got in first'; in other words, he died by drowning. It may be he would have died by the strangulation and the injuries he had suffered. There is no doubt that he died by drowning.

Does that make any difference at all to your approach ? My direction to you is as follows, members of the jury: Where the unlawful application of force, which was the strangling, and the eventual act which caused the death were part of the same sequence of events, the fact that there was a short time, ten minutes or so, between the two events does not exonerate the defendant from liability, particularly as he has admitted that the act which caused the death was designed to conceal the commission of the strangling. So, that is the direction I give you. It does not excuse him - the fact that there was this short interval between those two events. If you are of the view, if you are sure that this was part and parcel of the same sequence of events, then it is still murder. Do you follow that, members of the jury ?"

20. The judge was then asked, by the foreman of the jury, to repeat his directions and the judge said as follows (P. 18 A - H): -

"Where the unlawful application of force, which is the initial strangling, and the eventual act which caused the death, which is the putting in the water, were part of the same sequence of events, the fact that there was a short time, some ten minutes or so, between the two events does not exonerate the defendant from liability, particularly as he has admitted that the act which caused the death was designed to conceal the commission of the strangling. You will remember he said it was to get rid of the evidence."

21. It is Mr McCoy's contention that the repetition was inadequate, and therefore confusing, in that it failed to repeat the essential portion of the prior direction: the timing of the sequence of events.

22. In any event, says Mr McCoy, the judge in those directions was imposing on the jury his own view - and it was the view of the jury which mattered - of the facts that the strangling and the drowning were part of the same sequence of events. He failed to direct the jury, and thus deprived them of the opportunity to consider, the need, which Mr McCoy suggests exists, for a coincidence between the actus reus and the mens rea. This gap was open on the evidence for the jury to consider, in the sense that the mens rea necessary for murder had dissipated by the time the body was thrown into the sea - there to drown, the cause of death.

23. In so doing he deprived the jury of the opportunity - upon which in any event he should have directed them - to consider alternative verdicts either of attempted murder or manslaughter which were properly open to them on the evidence.

24. In our judgment the trial judge was fully entitled, on the facts as they emerged from the evidence, to direct the jury in the manner he did. The issue is: was he right in law ?

25. The authorities start with Thabo Meli v. The Queen [1954] 1 WLR 228 (P.C.).

26. That case was concerned with a preconceived plan to kill. The victim was brought to a hut, struck on the head and then, in the belief that he was dead, was rolled over a cliff. The scene was dressed to make it look like an accident. Medical evidence indicated that the injuries caused to the victim in the hut were not sufficient to cause death which in fact resulted from exposure on being left at the foot of the cliff.

27. The appellants there took, as does the applicant here, the ground that the mens rea attached to the hut incident and not to the rolling of the body over the cliff, therefore they were not guilty of murder.

28. The Judicial Committee held: -

"That it was impossible to divide up what was really one transaction in that way. The appellants set out to do all those acts as part of, and to achieve, their plan, and it was much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before it in fact was, therefore they were not guilty of murder. There was no difference relevant to the present case between the law of South Africa and that of England, and by both laws there could be no separation such as that for which the appellants contended merely because of their misapprehension."

29. Mr McCoy seeks to distinguish Thabo Meli from the instant case because of the lack here of a preconceived plan. Further he draws our attention to the volume of academic criticism of the decision.

30. In Tara Chand & Others v. R [1968] 14 Fiji LR 73 the Court of Appeal of Fiji, the judgment of the court being given by Gould, VP, dealt with Mr McCoy's pre- conceived plan point and, incidentally, with a number of decisions contrary to Thabo Meli to which Mr McCoy has also drawn our attention.

31. The facts there were that the three appellants attacked the deceased and, after that attack, threw the apparently dead body into a creek. The medical evidence could not establish with certainty the cause of death.

32. The court applied Thabo Meli holding: -

"1. The three appellants were guilty of murder if, with malice aforethought either in the form of an intent to kill or in the form of an intent to do grievous bodily harm, they inflicted grievous injuries on the deceased and then, mistakenly believing him to be dead, and in continuance of a course of conduct that may properly be regarded as indivisible, threw him into the water - whether in execution of a pre-arranged plan or merely on the spur of the moment - and thereby caused his death by drowning.

2. The question whether such a course of conduct should be regarded as an indivisible whole is one to be decided by the tribunal of fact."

33. In the course of his judgment, Gould, VP, at P. 84 B said: -

" In R. v. Ramsay [1967] N.Z.L.R. 1005, 1014, the New Zealand Court of Appeal appears to have regarded the absence of a preconceived plan as a fundamental distinction between that case and Thabo Meli v. R. But the facts of the two cases differed greatly. We need only say that, if it was intended to lay down a general proposition requiring a previous plan for the disposal of the body to justify a verdict of murder in a case such as the present one, we are, with all respect, unable to agree. Provided there is a sufficiently connected series of acts, we cannot see that it makes any difference whether the murderer disposes of the body in a manner previously planned or merely in such manner as may occur to him impromptu and on the spur of the moment."

and again at P. 85 F: -

" We are aware that the Thabo Meli decision has been severely criticised in Russell on Crime, 12th Ed., pp. 55-60. But we respectfully prefer the view expressed in Glanville Williams' Criminal Law, General Part, 2nd Ed., para. 65, to the effect that "ordinary ideas of justice and commonsense require that such a case shall be treated as murder." The present case sufficiently illustrates the extent to which commonsense might be offended were a different rule applied."

34. With respect we are happy to adopt and agree with that which Gould, VP, said. We have no hesitation in accepting Thabo Meli as being correct and, consequentially, the directions in law given by the trial judge. It, and they, accord with common sense.

35. If further authority be needed it comes from R. v. Le Brun [1992] 1 QB 61 in a judgment given by Lord Lane, CJ, though there the facts were different, there the "same sequence of events" direction was approved even though there was an appreciable time interval between the two events.

36. Here it was not incumbent on the trial judge to leave attempted murder, manslaughter or mistake of fact to the jury.

37. By making reference, a short way into the summing up - Mr McCoy's Ground 2 - to the issue being the applicant's participation "in that man's murder", the judge was placing the real issue squarely before the jury. Manslaughter was not, on the facts, open. Therefore that direction in no way deprived the applicant of any defence available to him.

38. There were matters fit for the consideration of this court: leave to appeal was granted, we treated the hearing of the application as the appeal but dismissed the appeal. We stated we would give our reasons later. This we now do.