HKSAR v. LI YINYING

CACC 204/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 204 OF 2007

(ON APPEAL FROM HCCC NO. 3 OF 2007)

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J U D G M E N T

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Stuart-Moore, VP(giving the judgment of the Court):

Background

1.  On 12 June 2007, Li Yinying (the applicant), aged 42, was convicted by a jury of murder, following a trial before V Bokhary J.  She now seeks leave to appeal against her conviction.

2.  At the outset of the trial, the applicant pleaded guilty to manslaughter.  She originally filed a homemade ground of appeal in which she contended that “insufficient consideration [in law and on the facts had been given] to the possibility of manslaughter”.  This ground has been expanded upon more recently in a written submission dated 20 May 2008 from the applicant to which we shall turn in due course.  A further submission, dated 10 December 2008 and entitled ‘perfected grounds of appeal’, has also been received.  However, this adds little to the applicant’s earlier submission. 

3.  Mr John McNamara, who was present in court throughout the hearing with a view to assisting us if necessary, indicated that he did not feel able to advance any arguable ground of appeal affording some real chance of success.

4.  There was no issue at trial that the applicant had killed Yip Yu-lin (the deceased).  She did this by throwing acid over him on 3 August 2006.  She had purchased the acid some two or three days beforehand.  The only question for the jury’s determination was whether the applicant was guilty of murder or manslaughter. 

5.  On her arrest, the applicant summarised the reason she had killed the deceased when she said to Detective Police Constable 33639:

“He [the deceased] lied to me saying that he would get divorced [from] his wife.  However, there was no divorce actually.  Infuriated, I splashed corrosive acid on him.”

She then led the officer to a bottle which had contained some of the acid she had thrown over the deceased.

6.  The applicant’s arrest was at 3.35 am on 3 August 2006.  She had remained near the crime scene, and was found close to the site office of a company responsible for security at Disneyland, Lantau Island.  The deceased, a married man aged 50, worked as a security guard there.

7.  At 2.58 am on 3 August 2006, a man had alerted the police to this incident by means of a 999 call.  This was followed, seven minutes later, by a 999 call which came from the applicant herself.

8.  The deceased was taken to hospital by ambulance where he was found to have second or third degree burns to 20% of his total body surface, including the whole of his face, eyes, neck, upper back and chest and both upper limbs.  He was transferred to the intensive care unit at Queen Mary Hospital in view of the severity of the chemical burns.  The deceased eventually died eight days after the attack.

9.  Traces of the kind of acid used in this attack were found in two bottles at the scene, one containing sulphuric acid at a concentration of 97% and the other containing hydrochloric acid at a concentration of 29%.  Dr Chan Tai-wai, a government chemist, described both substances as “highly corrosive”. 

10.  A shirt was found near these bottles which the deceased had worn at the time of the attack.  It was heavily damaged by chemical burns and it bore traces of sulphuric acid. 

11.  A third container, in the form of a clear plastic bottle with no cap, was also found nearby.  There was a small amount of liquid inside which was identified as hydrochloric acid but there was too little for its strength to be analysed. 

12.  Similarly, a fourth container which was found in the bin in the site office pantry contained too small an amount of sulphuric acid for the concentration to be ascertained.

13.  An examination of the deceased’s clothing taken from him at hospital revealed sulphuric acid and hydrochloric acid on his trousers and underpants.  His shoes were chemically stained with sulphuric acid and traces of hydrochloric acid were found on his socks.

14.  Following her initial confession at the crime scene, the applicant was interviewed at the police station where she made further admissions.  She described how she had met the deceased in Shenzhen by chance and had agreed to be his “girlfriend”.  Two weeks later, when the applicant was in Hong Kong, the deceased said that he could not take her to his home because he had a girlfriend who had not yet left but he would take her there later.  The applicant described how the deceased kept “deceiving” her over the next few weeks.  They kept each other company for about thirteen weeks during the daytime when the deceased was not working.  She said that he had told her that he would marry her but then he told her that he was already married and would first have to divorce his wife.  Later, he said that there was “no way he could leave [his wife]” which made the applicant very angry as she knew “he would dump [her]”.  She then obtained corrosive liquid “to splash over him”.

15.  The applicant went on to describe how she had two bottles, one in her hand and the other on the ground.  This part of the applicant’s interview was summarised to the jury during the summing up, as follows (the applicant’s answers being recorded against the letter ‘B’):

“182B  … (I) splashed a little. Er, from the first bottle, (I) splashed a little. He went to wash it away. Washed. I again went to splash (him) -- with the bottle. I didn’t know how much I splashed from it. (I) just chased after (him) when splashing. (I) ch-ch-chased.

……

192 B:  I splashed it over his face. I kept splashing it. I didn’t know which part of his body (I) had splashed over. I didn’t know.

……

207 A:  Well, you said (you) splashed corrosive liquid onto him. When did you er, when did you think of using corrosive liquid to sp-- splash onto him?

208 B:  Because (when) I arrived this week, (I) noticed he had completely changed. I thought, I said what could be done to him to “Po” -- that is, to make my heart feel better. Th-th-think. I then w-w-went to a hardware shop and asked, to see (what could be done). People said corrosive liquid was sold. Previously I heard from people that by splashing corrosive liquid, the face would come off. I heard that from people. Long long ago in the past, I heard people say that. Now I have such an idea.

……

450 B:  Mm. (I) poured it all out on one occasion. Much was poured onto the floor. At the time, perhaps only a little had splashed onto his face.

451 A:  I see. Then what did Mr Yip do?

452 B:  He went to wash (it away).

453 A:  He went to wash (it away). Where (did you) place this bottle then, [B: I poured] (did you) dump it?

454 B:  After pouring, I dumped it on the floor.

455 A:  I see, (you) dumped it on the floor.

456 B:  Mm.

457 A:  Dumped it at the scene?

458 B:  Yes, right. Then I ran.

459 A:  Then, then what did (you) do?

460 B:  I noticed he went to wash again. I feared his face would not melt. I then w--went after him and poured.

461 A:  You said once, fearing what would his face become? Please repeat.

462 B:  I feared that he -- (I) poured not much, (on) his face. [A: Yes.] I didn’t deserve that. But (I) ran after him, and then poured, poured all onto him.”

16.  Aside from this summary, the jury had written copies of the transcript of the full interview in which the applicant also admitted purchasing corrosive liquid on two separate days because, as she stated, she “dared not buy two at one time”.  She then hid the acid at Disneyland.

17.  The applicant gave evidence at trial along similar lines to the account she had given to the police.

18.  The judge summarised the issues for the jury to decide, having correctly directed the jury on the law in relation to murder, unlawful act manslaughter and, subject to the qualification we shall deal with later, manslaughter by reason of provocation, when reminding the jury of the way the defence case had been presented.  The judge stated:

“Defence counsel’s speech … was directed essentially to persuading you to accept that the accused did not intend to cause really serious injury, or at least to entertain a reasonable doubt whether she intended to do that; that in any event, provocation has not been negatived and that you should find the accused guilty of manslaughter only.”

Grounds of appeal

19.  The applicant’s written submission, dated 20 May 2008, made a number of points to add to her original ground of appeal that the judge had “failed to give sufficient consideration to the possibility of manslaughter”.  We can deal with the points she has raised in this submission quite briefly.

20.  First, the applicant stated that the judge failed to impress on the jury that she (the applicant) might not have been aware that the liquid she purchased was as harmful to the skin as it turned out to be.  This point is without substance in the light of the applicant’s account to the police that she had heard from people that “by splashing liquid, the face would come off”.

21.  The second point made by the applicant was that the judge had not given directions on wounding or killing when, as the applicant put it, the death was caused “inadvertently”.  This point is also without merit as the judge was meticulous in her directions about the intent required for murder.  Equally, the alternative of manslaughter, which was open to the jury in the event that they were not sure the ingredients required for murder had been established, was clearly and fully explained.

22.  In her third point, the applicant referred to the mental strain she was under at the time of this incident as a result of a build-up of provocative conduct on the deceased’s part.  She complained that the judge concentrated only on the possibility of a verdict of manslaughter by reason of provocation arising from the circumstances just prior to this incident without reference to the longer term behaviour of the deceased giving rise to provocation.

23.  The approach taken by the judge was to give a general direction on provocation towards the start of her summing up, telling the jury that she would remind them later of the evidence and submissions on the topic.  The directions given to the jury were in these terms:

  “Let me now direct you on the issue of provocation. This issue only arises if you feel sure that the accused’s intent in unlawfully killing the deceased was intent to cause him really serious injury. In other words, it only arises if you feel sure that, subject to the issue of provocation, the accused is guilty of murder. Remember that. Where the doctrine of provocation operates, as I have already told you, it reduces what would otherwise be murder to the lesser offence of manslaughter.

  On the issue of provocation, begin by asking yourselves this question: was the killing the result of the accused having been provoked into losing her self-control? If you feel sure that the accused had not been provoked into losing her self-control so as to kill the deceased in a state of loss of self-control, then the doctrine of provocation will not operate. But if you think that the accused had been, or might have been, provoked into losing her self-control so as to kill the deceased in a state of loss of self-control, then you must ask yourself the next question.

  Before I formulate that question for you, I shall tell you this. There are two particular characteristics relied upon by the defence as particular characteristics of the accused relevant to that question. These are her naivety and unworldliness. There can of course be no doubt about the accused’s sex and sort of age, but whether she is, or might be naïve or unworldly and, if so, to what extent, is a matter for you to decide on the whole of the evidence. Whenever I speak of naivety and unworldliness, I do so on that basis.

  So the next question is this. Would an ordinary person of the same sex and the same sort of age as the accused and of her naivety and unworldliness have done what the accused did? When I say ‘an ordinary person,’ I mean a person who has ordinary powers of self-control. If you think that an ordinary person of the accused’s sex, sort of age, naivety and unworldliness, being such a person of ordinary powers of self-control, would have, or might have, done what the accused did, then you should find the accused not guilty of murder but guilty of manslaughter. If, on the other hand, you feel sure that such a person would not have done what the accused did, then you would be entitled to find her guilty of murder.

  So those are the two questions. In short, they are: (1) was the killing the result of the accused having been provoked into losing her self-control? (2) even if it was the result of that, would an ordinary person of the accused’s sex, sort of age, naivety and unworldliness, being such a person of ordinary powers of self-control, have done what the accused did?

  If you feel sure that the accused unlawfully killed the deceased with intent to cause him really serious injury, then the position would be as follows. If you feel sure that the killing was not the result of the accused having been provoked into losing her self-control, then you would be entitled to find her guilty of murder. Even if you think that the killing had been, or might have been, the result of the accused having been provoked into losing her self-control, you would still be entitled to find her guilty of murder if you feel sure that an ordinary person of her sex, sort of age, naivety and unworldliness, being such a person with ordinary powers of self-control, would not have done what the accused did.

  The question of provocation, as I have already indicated to you, only arises after you are sure that all the elements of murder are otherwise present. In bringing the charge of murder, it is the prosecution’s case that the only reasonable inference in all the circumstances is that the accused intended to cause the deceased really serious injury.”

24.  These directions were, with respect, made unnecessarily complicated by the addition of the characteristics “naïvety and unworldliness”, whatever these words were supposed to convey in the circumstances of this case, which were said to be relevant to the question the jury had to decide.  It is important that directions to a jury should be in as simple and clear terms as it is possible to make them without unnecessary verbiage which adds nothing and may merely serve to confuse. 

25.  It will, however, be observed from the directions the judge gave that nothing was said along the lines of what is sometimes called a ‘last straw’ direction.  This is often formulated in terms which point out to the jury that although the provocation which reduces murder to manslaughter applies only if the act of the defendant is committed suddenly upon a provoking event, this does not require the jury to ignore the deceased’s past behaviour since an incident which is trivial when examined in isolation could nonetheless be one which might cause a reasonable man to react explosively in the context of provocation over an extended period.  A summing up on the law is, however, not to be regarded as a simple recitation of specimen directions tailored to the particular facts of the case in hand.  Provided the law has been fully and fairly covered, with a sufficient summary of the material facts which relate to those issues of law, the omission to deal with a particular issue along the lines recommended in a specimen direction will not be fatal to the summing up.

26.  The applicant’s interview, coupled with her testimony, had revealed how she had got along well with the deceased at first.  In order to see him, she would have to wait in the cold before being taken into Disneyland by the deceased after other people had all left.  She slept on a table in the deceased’s office.  On numerous occasions, the deceased had said that he would divorce his wife who had asked him for $30,000.  A similar sum had been spent by the applicant, she said, in coming on numerous occasions from the Mainland to see the deceased and in supporting herself when in Hong Kong.  She had never asked for money from him or been given any apart from $500 on her first visit.  On her last trip, she arrived in Hong Kong on 28 July 2006.  This time, the deceased had made excuses to stop her coming and, when she saw him, she found that he had changed.  Two or three days before she threw acid over the deceased, she had begun to think about doing this as it would make “her heart feel better”.

27.  This history of the deceased’s deception towards, and mistreatment of, the applicant would in the normal way have required the judge to give a ‘last straw’ provocation direction.  She did not do so and this omission was an irregularity at trial.  Instead, the judge spent a considerable time detailing these aspects from the account given by the applicant when she was interviewed by the police and from her evidence at trial.  All of the version given by the applicant about how she had been badly treated by the deceased was covered in the summing up including her account about how she eventually purchased the bottles of acid on consecutive days together with her description of how, after a further provoking incident, she had thrown the acid at the deceased.  The jury could have been in no doubt that these matters could be taken into account when considering provocation. 

28.  In the circumstances of this case, the failure to give a ‘last straw’ direction was, albeit an irregularity, immaterial.  It might have been different if the judge had given the direction which is usually given to juries, that provocation can only apply when there has been a “sudden and temporary loss of self-control” but it seems that the judge, perhaps for reasons of expediency, avoided making such a reference.  Thus, the jury was left to consider the whole picture revealed by the evidence without any qualification.

29.  On the facts of this case, despite the omission to give a ‘last straw’ direction, the jury would inevitably, in our opinion, have taken into account the evidence about the history of the deceased’s treatment of the applicant when deciding whether the applicant had been provoked.  In any event, balancing this omission, was the failure to give another direction which ought also to have been given but was not although it had been the focus of the prosecution’s case.  This is the direction which would have informed the jury, in the context of provocation, how to approach an attack motivated by revenge which is what the prosecution alleged the applicant’s version of events amounted to.  On her own account, she had hidden in advance a store of acid at Disneyland, purchased on two separate days, to throw at the deceased if he did not change his mind about staying with his wife. 

30.  A direction about revenge is usually accompanied, once again, by words to the effect that as provocation will only apply in the case of a sudden and temporary loss of self-control of such a kind that a person is no longer in control of his or her mind, a defendant who plans an attack in revenge for provocative conduct does not act under provocation (as the judge will already have defined it) because in such circumstances he or she has not suffered a sudden and temporary loss of control.

31.  In the instant case, the applicant had described in her interview how, on the day before this incident (after the acid had been purchased), the deceased’s wife had twice telephoned her to scold her.  Then, in the early hours of 3 August 2006, she heard the deceased chatting to his wife on the telephone.  As she listened, she became very angry because he was talking “sweetly” to his wife.  She went on to say that, as she was listening to them, she “grew into a fury” before she threw the corrosive acid over the deceased.  She repeated this story in her evidence to the jury.

32.  This was a description of an attack which the jury might well have considered to have been in revenge for all the things which the deceased had done to the applicant which had made her angry.  It is surprising, therefore, that the judge omitted to give the ‘revenge’ direction.  However, this omission could only have benefited the applicant as a reference to “sudden and temporary loss of control” may, again possibly for reasons of expediency, have been omitted to balance the earlier omission to deal with a ‘last straw’ direction.  Whether deliberate or inadvertent, in overall context, we are, as we have indicated, satisfied that the omission to give a ‘last straw’ direction was not a material one in view of the thoroughness with which the whole of the history of provocative conduct, as described by the applicant, had been covered by the judge.

33.  There is, of course, no criticism of the decision to leave provocation as an issue for the jury’s determination but, in reality, its only hope of success was that sympathy for the applicant might lead to a merciful verdict at the hands of the jury.

34.  Other points made by the applicant concerning her call to the police using the 999 system, her immediate surrender to the police when they attended the crime scene, her cooperation with the police in the investigation which followed and aspects concerning her health did not advance this application.

35.  Lastly, turning to the applicant’s grounds dated 10 December 2008, these added nothing of substance to her earlier submission although it was emphasised that nothing was said by the judge which stated in terms that provocation can, in law, be the result of cumulative behaviour on the part of the deceased.  This is another way of saying that a ‘last straw’ direction was never given.  As we have indicated, while it was not a direction that was given in those words, the effect of the summing up on this issue was to leave it open to the jury to convict of manslaughter if, in the light of the deceased’s cumulative conduct, the applicant acted in provocation.

Conclusion

36.  In view of the omission from the summing up of a ‘last straw’ direction, we shall grant leave.  However, it is clear from the summing up that the issues for the jury to decide had, from the point of view of the defence, been fairly and adequately canvassed so that the omission was one which, in the circumstances, was not material.  There was strong evidence of murder.  In our view, therefore, the verdict was neither unsafe nor unsatisfactory.

37.  Accordingly, treating the hearing as the appeal, the appeal is dismissed.