HKSAR v. WAN TAK

IN THE COURT OF APPEAL

1996, No.411
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced one count of murder it being alleged that on 6^th October 1995 he murdered Lu Lin. He pleaded not guilty to that charge but was convicted after trial before Stuart-Moore J. and a jury. He now seeks leave to appeal against that conviction.

2. The facts were simple. On the evening of 6^th October 1995, the applicant went to Flat No.4 on the 7^th floor of Block G, Hang Chien Court, Tokwawan. Lu Lin, the mother of his estranged wife, was then residing at that flat. He went there to talk about his estranged wife's belongings which were still with him. The estranged wife, who usually resided in the premises had gone to China, and her mother was occupying her room. Shortly after midnight a Miss Chiu Yu-ying, a flat mate of the estranged wife returned to the flat. The applicant would not let her in so she went and got the caretaker. Eventually she and the caretaker were admitted and, when they saw that the flat was in disarray and that there was blood on the telephone, the police were called. The police found blood in the flat and after a search discovered the body of Lu Lin on the 5^th floor. Her death had been caused by multiple stab wounds and the applicant admitted to the police that he had killed her. He repeatedly said, "My mother-in-law was killed by me. I then wrapped her up in a bed sheet and placed her in the telephone room on the rear staircase of the 5^th floor".

3. The defence at trial was that he had been attacked and provoked by his mother-in-law and that he had acted when killing her under provocation. The judge left both provocation and self-defence to the jury.

4. We turn now to consider the grounds of appeal.

5. Ground 1:

"1. Counsel for the Defence wrongly persuaded the Appellant not to provide the Jury with a full account of his struggle and fight with the deceased, thereby prejudicing the Appellant's defence to the stabbing, that of provocation."

6. The applicant in his Original Instructions which were placed before us in the appeal had said:

"Then suddenly the deceased asked me whether police had charged me for that incident. (This was an incident during which the applicant had beaten up his wife after having discovered that she was acting as a prostitute.) I said police did not charge me. The deceased accused me by saying, 'Why did you force your wife to become a whore? It is such an evil matter. Police didn't interfere with this sort of matter?' I was so taken by surprise by her allegation that I said nothing. The deceased became mad and said, 'so let me interfere with this matter.' All of a sudden she dashed towards me to attack me. We were sitting very close to each other at the living room. I was taken aback. I thought she attacked me bare-handed so I fended off her attack with my right hand. But then I felt great pain and found my right hand bleeding. Only then I noticed that somehow she had a knife, a small one, in her hand. I had no idea at all how she had a knife in hand.

I was afraid of seeing blood since young, a kind of blood phobia, though not serious. I would become nervous and tremble when I saw blood. That's exactly how I was behaving at that time.

The deceased said nothing but continued to try to stab me with the knife. I ran about in the living room to dodge her attack. However we never entered the kitchen to fetch a knife. The deceased caught me and we entwined together. I tried to snatch her knife to protect myself and to stop her from further attacking me.

I cannot recall when and how I finally snatched her of the knife. As we were entwining together, I felt I was being caught by a monster and I struggled to free myself. Things happened so sudden that I felt it was a dream. The situation was chaotic. Somehow I suddenly felt a shot of pain on my chest as if someone had stabbed my heart. I was driven mad by this sudden pain. I felt my life being endangered. I was out of control of myself. I struggled violently and waved my hands.

I cannot describe or recall the struggle in details because my life was in danger. The situation was chaotic and my mind was confused. All I can say is that I was driven mad and I waved about my hands but I didn't know what I was doing as if I were in a dream."

7. The applicant also made a cautioned statement. This was the subject of a voire dire, after which the judge refused to admit it in evidence. We also had that before us in the appeal. In it the applicant said:

"I did not want to chop my mother-in-law to death. Before that, we had a quarrel. She scolded me for not treating her daughter well and frequently beating her. We then pushed and bumped into each other. Afterwards, she went into the kitchen to get a chopper. I also followed into the kitchen to get a fruit knife. Then we struggled with each other and I chopped her to death inadvertently."

In the statement he also said:

"At that time I went mad all of a sudden, I held the knife and chopped my mother-in-law in a frenzy, paying no attention as to which parts of her body I was chopping. Anyway, the chopping was frenzied and it didn't stop until my hand/arm lost strength. I do not know the number of times she was chopped."

He went on to say that after taking the deceased's body to the fifth floor he returned to the flat and washed the chopper and the fruit knife but did not remember where in the kitchen he had placed them.

8. The applicant said in his affirmation filed for the purposes of this appeal states:

"3. I was granted legal aid at my trial, and Mr. Robert Forrest was assigned as my Counsel to defend the case. I feel that my assigned trial Counsel ("Trial Counsel"), Mr. Robert Forrest failed to fight my case properly. Originally, I gave instructions to the Director of Legal Aid where I stated that I could not remember clearly how the fighting occurred at the material time. Later I remembered the course of the attack. Therefore, I wrote down in an exercise book the course of the attack. After the Pre-trial Review, my trial Counsel came to see me at the court room. I gave my exercise book to him as my new instructions.

4. My trial counsel saw me again in High Court cell after voir dire proceedings. My Counsel asked me what instructions I would rely on. After hearing my instructions, my Counsel told me that if I used my new instructions as my defence, he would have the right not to represent me. He said if I used the new instructions I would definitely be convicted of murder and if I did not follow Counsel's step there was no way to defend my case. He advised me to follow my previous instructions saying that I would not remember how the fighting occurred. He also stressed that he had 30 years experience and kept on saying that my old instructions were pretty good. Therefore, I followed my previous instructions." (Emphasis supplied.)

The "new" instructions were as follows:

"At first, it was a casual chat, but after my mother-in-law asked me why I forced my wife to be a whore and that when she refused, you became inhuman and hit her almost disfigure her. Since police did not pursue the matter I will do so. By this time I then realized how my wife had complained to her mother. But until I heard what had been said so far, I still had no chance to explain. I saw her rushed to me to attack me. Therefore I instinctively used my hand to ward off. Once I raised my hand, I felt pain and bleed a lot. Then I found she had a knife in her hand. I was very frightened but she continued to attack me. I dodged to and fro but subsequently struggled with her. I finally removed the knife from her hand. At this time, she immediately rushed in the direction of the main door. I asked her to listen to my explanation. I had not yet finished speaking, she had already dashed forward, holding a chopper in her hand. When dashing forward she said at the same time 'You don't have to explain. If I do not kill you, sooner or later you will force my daughter to death'. And she rushed to chop me. I did not know what to do. I was very frightened. Then she came near me, I became mad and I don't know what has transpired in the struggle. By the time my mind was less muddled. I found on the floor and her body there were a lot of fresh blood, then I discovered myself holding a knife, after that I went on to wake her up, but she did not respond. I became scared and confused, sitting down." (Emphasis supplied.)

Later in the "new" instructions he says:

"This incident happened completely because I did it under self-defence .... Since I had no monetary conflict and no hatred with my mother-in-law why would I murder her? This misfortune happened purely because I was attacked, out of instinctive self-defence this tragedy was result. Deceased asked me to go to her home. I didn't know why. When she spoke of me having hit and almost disfigure her daughter and forced her to become a whore, I believed she was talking about previous misunderstanding between me and my wife."

9. He says that, because of the advice of counsel, he gave evidence in accordance with his original instructions and, as a consequence, was convicted without his real defence having been placed before the jury.

10. The questions before us are:

i) Did the applicant, having raised a second, possibly suspect, version of the events and, having been properly advised by counsel, decide that he would give evidence in accordance with his original version ? or,

ii) Was it a real possibility that, having given explicit instructions in writing detailing exactly what he said had happened and having indicated that he wished to give evidence in accordance with them, he was to an extent overborne by counsel and persuaded not to give such evidence.

11. Trial counsel having seen the grounds of appeal filed an affidavit to which was annexed a document entitled "Comments on the Grounds of Appeal and the Affirmation of the Applicant" and another headed "Explanatory Note". The first had been sent to the Director of Legal Aid shortly after the conclusion of the trial and the second had been sent to the Registrar on 4th June 1997 when counsel was first asked to comment upon the Perfected Grounds of Appeal and the applicant's affirmation. These two documents referred, at times in differing, but not contradictory, terms to the same set of events. It would have been much more satisfactory had counsel set his evidence out sequentially in his affidavit.

12. Neither counsel for the applicant nor counsel for the S.A.R. sought to cross-examine trial counsel or the applicant on their affidavits.

13. Counsel in his "Comments" states that at no time did the applicant explain how it was that his memory had improved and that he had never threatened the applicant by telling him that he had the right not to represent him and that he would be convicted if he did not follow counsel's advice.

14. He deals with the applicant's allegation that he (counsel) had said to him "that (his) old instructions were pretty good" in the following way:

" I may well have said this in the course of discussions with the defendant - when pointing out that Ms. Fancy Chan (who took the original instructions) was a very experienced Law Clerk. Again it ought to be emphasized that Wan Tak never once told me that his change of instructions arose because of his earlier failure to recollect what had happened. Indeed I strongly suspected (although I never reached any final conclusion on the matter) that this 'change' probably arose because Wan Tak (at the time of his trial) believed that there were matters he then had to deal with, which he had not properly considered in March 1996 ...... (Once I explained to him that Exhibit 72 (the cautioned statement which the judge refused to admit) would not be shown to the jury, he immediately told me that he would testify along the lines of his original instructions.)" (Emphasis supplied.)

Counsel goes on to say:

"It has always been my understanding that a Defence Advocate has a duty to conduct a case in such manner as he (in his discretion) thinks will be most advantageous to his client, and that is precisely what I believe I did. The advice I gave Wan Tak about including the 'second stage' of this incident in his evidence was (in the circumstances) what I consider any moderately experienced Trial lawyer would have given his client. Introducing this 'second stage' into his evidence ran the risk of 'opening up a can of worms,' which the Prosecution could exploit. Moreover it was not necessary in view of the judge's exclusion of Exhibit 72."

15. The final observation is, it would seem, explained by the fact that Miss Chu, the flat mate, gave evidence that the chopper was seen by her after the incident in its customary place in the kitchen. No challenge was made to the assertion that the applicant after advice indicated that "he would testify along the lines of his original instructions".

16. Counsel also deals with this matter in his "Explanatory Note" in which he says:

"When this 'change of instructions' was first discussed by the defendant and myself I clearly recall making two comments: (i) If this incident happened in October 1995, why didn't the defendant recall the 'second stage' when he gave his written instructions in March 1996? (I also pointed out that Fancy Chan was a very experienced Law Clerk who had obviously gone to a great deal of trouble in taking these instructions). (ii) There was presumably a brief interval if time (when the deceased actually went to get the chopper) which would have given defendant an opportunity to retreat to some place of safety and avoid any further violent confrontation. I then advised the defendant to wait until the outcome of the voir dire before the matter was further discussed.

The result of the voir dire (inter alia) was that the first caution statement (Exhibit 72) - taken at 0925 hours on 7/10/95 - was ruled inadmissible. Immediately following that I spoke to the defendant again about his fresh instructions. At this stage he told me (in effect) that the reason for his assertion that the deceased had gone to get this chopper was because this particular instrument had been mentioned several times in Exhibit 72. I then told him that this statement could no longer form a part of the Crown's case, as it had been ruled inadmissible by the Judge. (In other words he did not need to worry about the contents of Exhibit 72). I also pointed out that no one's blood had been found on the chopper, and that it was only Exhibit 72 that had introduced it into this case as a potential weapon. Also I reminded him of what I had earlier said about the opportunity of avoiding further confrontation with the deceased, when she allegedly went to get the chopper. (It is noteworthy that Crown Counsel devoted a fair amount of his cross-examination to this very point: about the opportunity the defendant had of retreating from the scene after disarming the deceased of the Gurkha knife. If the defendant had additionally testified about the deceased going to fetch the chopper, the Prosecution would have had further ammunition for cross-examination on this topic).

I do not recall telling the defendant that if he testified about the deceased 'getting the chopper' - he would 'definitely be convicted of murder'. However, I do recall advising him (in the strongest terms) that by testifying along these lines he might unnecessarily (because Exhibit 72 had been excluded) be building up problems for himself. Having said all that I strongly emphasised that what he said to the Jury was entirely a matter for him, as I had not intended to cross-examine any of the witnesses about the chopper. As it transpired the defendant (in my view wisely) did not mention the chopper to the Jury and substantially stuck to his original written instructions taken by Fancy Chan." (Emphasis supplied.)

Important here is the assertion by counsel, to which again no challenge is made, that he strongly emphasized to the applicant that what he said to the jury was "entirely a matter for him".

17. Mr. Saw for the prosecution submits that counsel did no more than point out to the applicant the dangers involved in changing his version of what had occurred while making it plain to him that, in the outcome, what he said to the jury was a matter for him. On the other hand it is urged by Mr. Poll that what counsel said might have been taken by the applicant to indicate that he was being advised not to give the evidence which he wished to give because it might, whether truthful or not, "open up a can of worms". Mr. Saw refers us to R. v. Clinton [1993] 1 W.L.R. 1181 at 1187 in which Rougier J. said at 1187:

"Subsequent decisions have emphasised that cases where the conduct of counsel can afford a basis for appeal must be regarded as wholly exceptional. With that we are in full agreement. During the course of any criminal trial counsel for the defence is called upon to make a number of tactical decisions not the least of which is whether or not to call his client to give evidence. Some of these decisions turn out well, others less happily. In Reg. V. Gautam, The Times, 4 March 1987, this court concisely explained why such decisions could not generally afford valid grounds of appeal. They held that, provided counsel had properly discussed the case with his client, the court would not permit the defendant to have another opportunity to run an alternative defence which had not been run at his trial."

He submits that that was the situation in the present case.

18. Mr. Poll for the applicant also relies upon R. v. Clinton saying that this was a case in which the court could not be satisfied that counsel "had properly discussed the case with his client". His submission simply stated is that counsel by his own words indicates that he allowed his concern with tactical considerations to override his duty to accept explicit instructions and to present them to the court.

19. We are satisfied, having considered all of the material, that counsel's advice, which may well have been expressed in strong terms, was no more than that the applicant should think very carefully before embarking upon a new version of events. It was clearly proper in these circumstances to give such advice to the applicant as long as he was, in the outcome, left to make his own decision as to the evidence which he wanted to place before the court. We are satisfied that that decision was left to him and we reject the suggestion made of impropriety on the part of counsel.

20. Ground 2:

"2. Counsel for the Crown wrongly challenged the Appellant's oral evidence in relation to the criminal activities and convictions of the deceased in China. Counsel for the Defence failed to introduce into evidence the criminal record of the deceased, although he had access and/or possession of the confirming documents. As a result the Appellant's credibility was wrongly called into question."

This ground as phrased suggests a failure by defence counsel to introduce evidence relevant to the defence. The evidence was the criminal record of the deceased which it was said showed that she had been convicted of and imprisoned for trafficking in dangerous drugs. This was being adduced by the defence primarily to show that she was the sort of person who might have been carrying a knife. The applicant when giving evidence said that this information had been told to him by the deceased. It was put to the applicant in cross-examination that she had served one year and had then been released and compensated for wrongful arrest. The applicant did not agree to this. He stated that the deceased had said that she had been in prison for several years. Defence counsel was clearly taken by surprise by this question from the prosecution. He told the court that he had documents which showed that what the defence said was the true position but conceded that they were not in proper form to be admissible under s.31 of the Evidence Ordinance. At the conclusion of the evidence the position was that the matter had been put in cross-examination and denied. The judge when summing up made reference to the evidence of the applicant in which he had said that the deceased had told him that she had been in prison for several years and told the jury that "if this is the background of that woman, she might be unlike many other women, the sort of person who might carry in her bag a knife".

21. The thrust of the appeal on this ground appears to be that the credibility of the applicant was impugned by a wrongful challenge about what he said the deceased had told him. The first thing to be said about this ground is that it has never been established that a wrongful challenge was made. An application was made to pursue the matter in the appeal hearing by placing documentary evidence before this court. We rejected the application as it was conceded that the material was still not in admissible form and, furthermore, it did establish with particularity that the person referred to therein was the deceased. The matter then as it finally stood consisted of a question put in cross-examination and denied and a very fair suggestion from the judge as to the way in which the jury might consider the matter. There is nothing in this ground.

22. Ground 3:

"3. The learned Judge erred in the Summing-up in that he failed to give adequate guidance to the Jury as to how they should approach or consider the circumstances of the Appellant in the context of his defence of provocation, in particular that he had been deceived by his wife who had been acting as a prostitute and the accusations made by the deceased were the reverse of the truth."

The submission of Mr. Poll is that the judge was required by R. v. Camplin (1978) A.C. 705 to tell the jury that when, assessing the effect of the conduct of the deceased upon the applicant, they had to assume that the reasonable man to whom their minds were directed shared the circumstances of the applicant. These circumstances included the deceit of his wife who had concealed from him that she had been working as a prostitute, the traumatic incident when this was discovered and the false accusation by the deceased that he had driven the wife to prostitution and had assaulted her without justification. It is submitted that the judge failed to put "the sting" of that accusation into context. Particular relevance is placed upon the words of Lord Diplock in Camplin where he says, at 717:

"But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the Jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the Jury could not take into consideration all those factors which in their opinion would affect the gravity of the taunt or insult when applied to the person to whom they were addressed."

23. Mr. Poll suggests that the judge failed adequately to deal with the prior circumstances which would affect "the gravity of the verbal provocation", particularly the incident when the applicant discovered that his wife was a prostitute and the false accusation by the deceased that he was responsible.

24. We find no warrant for this suggestion. The judge at the outset said:

"... but the actions which they point out created provocation are those actions which show Lu Lin going for the defendant with the kukri knife and making that very violent attack upon him, as you heard the defendant say she did. The words which came just before those actions which may have also, the defence say, contributed to the provocation are the suggested sentences in which Lu Lin said that he was responsible for making her daughter a prostitute and for mistreating her daughter. Of course, I will give you more detail of that later but you will remember the effect of it now."

He went on:

"Well, now, bearing in mind what I have said to you about provocation you have got to consider not just one question but two. Firstly a very important question: did the conduct which it is alleged that the victim exhibited cause the defendant to lose his self-control? Did her behaviour cause him to lose self-control? If the answer is that you are sure it did not, that is an end of provocation. The defence does not arise. If the answer is yes, she did cause him to lose his self-control or she may have done, you do not stop there. You go on to ask a second question of yourselves. Might the conduct on the part of Lu Lin have caused a reasonable man to lose his self-control and to behave as the defendant did? And you will be able to deal with that question when you consider provocation.

As to the second question, which I have just told you, take into account everything said and everything done according to the effect which, in your opinion, it would have on a reasonable man. I suppose the question is what is a reasonable man? Well, it is a man having the powers of self-control to be expected in a man of 28, which of course was the age of the defendant at the time of the incident and still is his age.

Take it all into account in deciding whether the conduct on the part of Lu Lin might have caused a reasonable man to lose his self-control and behave as the defendant behaved."

25. He then, after an intervention from counsel, said:

"The last thing I am going to say to you about provocation is that you must, of course, look at all of the surrounding circumstances when you have decided what they are. For example, the Kowloon Tong incident. The way in which the defendant says that he eventually thought that perhaps his wife had deceived him for some time about what she really was. I will give you more details of that later. But it is all part of the surrounding circumstances to do with provocation which you need to decide for yourselves."

26. When the judge dealt with the evidence of the applicant he detailed all that he had said in evidence both about what had occurred on the evening of the 6th October 1995 and about the incident in February 1995 when he discovered that his wife was a prostitute. He told the jury finally that if they thought the applicant may or might have been provoked they had to ask:

".... Might the conduct on the part of Lu Lin have caused a reasonable person to lose his self-control and to behave as the defendant did? And it is that question where you need to look at all the surrounding circumstances, taking into account words and actions and what may or may not have led up to this meeting. Take those into account to decide the effect, in your opinion, it would have had on a reasonable man, that is a person aged 28, male, having the powers of self-control that you would expect in such a person."

We are satisfied that there is no warrant for suggesting the jury were not fully aware that they had to consider all of the surrounding circumstances including the incident in February 1995 when assessing the gravity of the provocation.

27. The application is dismissed.