THE QUEEN v. WU WAI-CHI

IN THE COURT OF APPEAL

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JUDGMENT

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McMullin, V. -P.:

1. The applicant, WU Wai-chi, was convicted in the High Court of murder on the 28th of February 1985.

2. At the time of the events with which the case 11 was concerned, he was working as a hair dresser in the Lai Yin Beauty Parlour. He had become acquainted some time in 1983 with a young woman, then about 17 or 18 years of age, LEUNG Sau- king. Around Chinese New Year of 1983 this young woman introduced him to her family, the two had by then become steady companions and he seemed to have achieved favour with the mother of the family and was invited to take up residence with them. He did so shortly after Chinese New Year. The premises is the 2nd floor of Block B of the Tai Wing House in Hollywood Road. LEUNG Sau-king had a number of brothers and sisters living together with her and her mother at that place.

3. The relationship between the applicant and the girl seems to have been a steady one but in the latter months before the incident with which the case was concerned it had become somewhat unhappy. One of the witnesses, HO Suk-wai, said that the applicant had told him that he was not being treated particularly well by his girl friend and that she was behaving cooly towards him.

4. In a statement made by the applicant after arrest he too noted that there had been a falling off in their relationships and that on one occasion there was a quarrel when he had actually put a leather belt around her neck, whether with serious intent -or not, but had not done anything further than that.

5. Another matter of friction between them appeared to have been that she had decided that she wished to take up the career of an air-hostess which would require a certain sort of training which appeared to be something that was inclined to drive them further apart.

6. The young people obviously were living busy lives and had not much time together. Nothing however was seriously amiss, sofaras the circumstances exposed before the Court go to show, until the first of September.

7. On that day the applicant came home between 8 and 9 p. m. He had la bath and went to his room. The mother of the family must have gone to bed a little before the girl came in.   The latter returned to the premises at about 10:45. She was then holding down two different job and apparently she normally arrived home fairly late.

8. When the girl arrived home she was told by one of her sisters that a letter had arrived from Cathay Pacific and on perusing this it appeared that she was being invited to an interview to take up a job. The applicant was present and he asked if the person who was going to give her instruction in swimming - which appeared to be one of the requisites - would be a man or a woman and was told that it would be a woman and said that that sounded better.

9. A brother of the girl returning at mid-night saw the applicant and the girl sitting on one of the beds in their room, a small room on a balcony which had been given to him by the family, in which there were two bunks. He said that they were talking in low voices and appeared to be somewhat unhappy. However, the only other account of what occurred subsequently that night emerges from the statement made by the applicant subsequent to his arrest when he was in police custody and after caution.

10. There was also some evidence deriving from several phone conversation which were made by the applicant the following day.

11. What emerges from this material is the picture of a prolonged but by no means violent quarrel which seems to have fallen into two parts, the first lasting for about two hours up to 1 a.m. This was precipitated by an earlier phone call which the girl had made in which she had asked the applicant's advice about her proposed occupation as an air-hostess and had received a rather negative answer from him. While they were together in the balcony room, this theme was re-introduced.  By his own account the applicant was somewhat angry about this and he did not give her any advice. He also said that he did not propose to get married until he was thirty some three years later. The response on her side was to the effect that she might not be around by then. The quarrel then appears to have grown a little warmer. Some rather wild words were spoken including the suggestion from the girl that he should kill her and his reply was that if he did so he would then kill himself.

12. He had accused her at one point of being loose in her attitude towards relations between men and women and had received a rather unsympathetic response. She also had said at some stage that if he did marry she could still continue to be his mistress and that, in any case, she could become the mistress of another man.

13. All of this derives from the applicant's own statement.

14. He went on to say that they went to sleep after that at about l a.m. About 4 a. m. she rose, went to the toilet and did not return to the balcony room but went into her sister's bedroom and lay down upon a bed there.

15. Shortly after that the father of the family rose and went out to work. The applicant then went into the sister's room and persuaded the girl to return to the balcony room. What then happened is described in his statement in the following terms:

"On seeing that she repeated the same words again, I was very angry. I sat up and pulled down the electric wire of the hair dryer which was on the upper bunk. The electric wire was a length of red and black wire which served as an extension. I wound it round my hands and then wound the electric wire round her neck from behind. At first I only applied little force She did not struggle. She said, ‘Kill me’.  I was very angry and applied great force in the strangling. She said in a soft voice, Don't'.  But at the time I was very confused in mind. I did not know how it happened.  I did not release my hold. I did not know how long I had strangled her. When I felt that she had lain prone on the bed, I undid the electric wire. I sat on the bed and became dumbstruck for a while. I sat on I touched her foot and felt that (it) was very cold. I thus covered (her) with sheets.  I then changed my clothes and left the flat. It was then sometime after five o'clock. After strolling in the street for a while, I went back to Lai Yin where I phoned up my elder sister arid LEUNG Fat-ping telling them that I had killed LEUNG Sau-king. After that, I went to Kowloon and wandered around. At a metal-ware shop I bought a piece of nylon string and tried to commit suicide by hanging myself in the staircase inside of a building in San Po Kong, but in vain. Sometime after 11 p. m. I made an arrangement with HO Shuk Wai and LEUNG Fat Ping to come together to the police station to surrender myself. That is the whole story."

16. The girl’s dead body was discovered by the mother of the family who came to rouse her at about 6:30 in the morning. By this time the applicant had already left the premises. The girl had in fact been seen by her sister a little earlier but the latter had assumed that she was still sleeping and had told the mother of that fact. The mother then went and discovered that her daughter was dead.

17. Throughout that day there was a series of phone calls by the applicant which roughly corresponded in their contents with what he subsequently described in his statement to the police. The first of these was to his elder sister at about 5:15 a. m. In this he said, amongst other things, that he had inadvertently killed Ah King. He went to say that he proposed to commit suicide and then rang off. Shortly after that rang back to his sister again and made the same kind of remarks. She sought to persuade him not to do anything foolish. Subsequently there were calls to his employer at the beauty parlour at about 1:15 in the afternoon. The employer had phoned the victim's flat earlier to find out why he had not come to work and by that time knew what had happened. To his employer he made a further confession of what he had done and also repeated his intention to kill himself.

18. Later he phoned a fellow worker, at about 8:00 p.m. at the Lai Yin Beauty Parlour and gave a rather rambling but circumstantial account of what had happened in which the circumstances which he ultimately described to the police were to some extent covered by him.

19. Then at 9:30 p.m. he phoned a woman HO Suk-wai, who was the girl-friend of a fellow worker LEUNG Fat-ping, and again he said that he was contemplating suicide and he repeated this in a further phone call-when Leung, who was not present on the first occasion, had returned at about 11 o'clock. These two however managed to persuade him to meet them at a cinema and he did so at about 11:30 p.m. They took him to a nearby park and he there gave them a description of the quarrel and its results in very similar terms to those which I have recounted from his statement to the police. Ho and Leung persuaded him that the proper course for him was to surrender himself to the police and he did so being accompanied to a police station by his two friends. The statement to which I have referred was then recorded in the early hours of the 23rd of September.  That statement was introduced by the prosecution in evidence without challenge. As I have pointed out the applicant did not give evidence.

20. Effectively the main issue raised by way of defence at the trial related to a possible plea of provocation. The judge directed the jury in terms which are not reproached in any way in relation to the law, the nature of the offence itself, the burden of proof and the degree of proof.

21. It may be thought indeed that on what has been already described it was perhaps not likely that the judge would have felt impelled to leave the defence of provocation to the jury, but in the event he did so.

22. What is said upon the appeal, first of all, is that in dealing with the distinction between murder and manslaughter, the judge did not sufficiently describe the nature of the necessary intent, particular in relation to manslaughter.

23. Mr. Poll’s objection here is that the direction given by the judge of the mental attitude which must accompany the act in respect of murder viz.: that it need not connote premeditation, coupled with the illustration which he put before the jury would not have been particularly helpful What the judge said was,

"Now it may shave appeared from some remarks made by Mr. Mayne yesterday that intention in this context connotes premeditation or planning. It does not. The intention spoken of is the mental activity as it were, the mental approach which accompanies the act of killing itself.

He then went on to give an illustration, a hypothetical illustration, involving the possibility of his coming into court and firing at counsel with a gun. He says then,

He then went on to refer to the act of strangling and he said a little later,

"If you apply great force with electric cord to the throat of another person with the result that you suffocate that person, what intention do you think a person doing that could have other than either to kill or to do serious injury?"

24. A subsequent passage is then criticised because it is said that it puts the matter before the jury on the purely hypothetical basis of what a person would or would Not think under such circumstances and it is said that the judge did not bring this home to the jury in respect of the defendant's own intention. We cannot agree. Earlier than that, immediately before the first of the passages I have quoted, he said in relation to this question of intention, and having put out of the picture any suggestion that self-defence was a possible defence,

"There is no suggestion of self defence, therefore would you have any doubt that it has been proved that he unlawfully killed her? If you have any doubt, it will be your duty to find him not guilty. If you have no doubt, consider the Question when he unlawfully killed her, did he have the intention either to kill her or to do her really serious harm?"

We are satisfied that these directions were sufficient to bring to the jury's attention the nature of the required intention and that the directions are not to be faulted in that respect.

25. With regard to the issue of provocation which was left to the jury, counsel relies upon the fact that the judge, in an effort to assist the jury, had told them that there were three questions that they must ask themselves. The first was "Was there any conduct on the part of LEUNG Sau-king which could have caused the accused to lose his self-control?" The second was "Did the accused lose his self-control as a result of such conduct?" Finally, the third question, "Could that conduct, in your opinion, cause a reasonable man to act in the way the accused did?" Those were in fact the issues that the jury had to consider in respect of provocation. They judge did, however, go on to elaborate these individual questions by suggesting that the jury should only go on to consider the second question if five or more of the members of the jury could say "yes" to the first viz.: was there possibly provocative incident? He elaborated the second and third questions in the same way

26. We are satisfied, nevertheless, that the issue in relation to provocation was clearly put to the jury, we do not think that they can have been confused by the manner in which these questions, which were put it in typescript by the judge and given to the jury for their consideration, can have diverted their attention from the basic three issues which I have already quoted.

27. It is clear that the jury must have come to the conclusion that there was not in fact any substance in the suggestion that there was even anything in the nature of a provocative incident. It was perhaps out of abundance of caution that the judge did leave that issue to them. Having left it to them they cannot have been in any doubt and must have concluded even on the applicant's own statement, that there was nothing in the nature of a grave and sudden provocation of the kind which could possibly have caused him to lose his self-control.

28. We are satisfied therefore there is no substance in the grounds of appeal which have been advanced before us.

29. It was a sad case and at the outset of the hearing of the appeal Mr. Poll, who appeared for the applicant, suggested that we might, even at this late stage, adjourn the hearing for the purpose of obtaining psychiatric reports. The applicant, after his apprehension had been given a very superficial examination and was asked a few questions about his mental state, but clearly nothinghhad been done by way of a detailed psychiatric observation.

30. This was a matter which could well have been dealt with prior to the trial and if anything had been yielded as a result of specialist observation no doubt issues, such as diminished responsibility could have been raised. What is more the question of intent, of whether he possessed the necessary intent, might have been, from the point of view of the defence, given assistance by such evidence. No such evidence was led, however, and we were quite satisfied in refusing this application that it would be wholly detrimental to the interests of justice that such an issue should now be raised by way of adjournment and further hearing, the suggestion being that, if such evidence did come to light, the court might subsequently feel impelled to allow the appeal and order a retrial. We do not think that that would in any case have been a proper course for us to take in view of the fact that such material could have been available and was not made available at the trial.

31. We would point out, however, that in this sad case, if such treatment is given and if it should bring to light anything in the nature of the mental instability which has been suggested by counsel as a possible description of the defendant's mind at the time of the event; that there is a course which may well be adopted by way of executive action. A Governor's reference could be sought under Section 83(b) of the Criminal Procedure Ordinance.

32. For the reasons given however we refuse the application.