HKSAR v. CHAN YUEN LAM

CACC397/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 397 OF 2003

(ON APPEAL FROM HCCC NO. 3 OF 2003)

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J U D G M E N T

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Hon Ma CJHC (giving the judgment of the Court) :

1. On 25 July 2002 in a flat in Tuen Mun, a boy aged about 9 and his sister aged 4 died at the hands of the Applicant. He was charged with their murder. On 29 August 2003, after a summing-up by Tong J that day, a jury returned a unanimous verdict of guilty against the Applicant. He was aged 24 when convicted. He now seeks leave to appeal against conviction. Originally, he also applied for leave to appeal against sentence. This was of course not possible given the mandatory life imprisonment following a conviction for murder as required by section 2 of the Offences Against the Person Ordinance, Cap.212. The Applicant has now abandoned that application and it is therefore dismissed.

2. Whereas the Applicant was represented at trial, he is effectively in person for the purpose of his application for leave. Mr Kevin Zervos, SC together with Miss Priscilia Lam, appeared for the Respondent. Mr Hanif Mughal appeared on the instructions of the Director of Legal Aid to assist the Court in this appeal if necessary but did not advance any submissions on behalf of the Applicant.

The issues

3. The Applicant was convicted after a 9-day trial. He had pleaded guilty to the manslaughter of the 2 children, but not guilty to the murder charges. He gave evidence at trial.

4. In the Applicant's Grounds of Appeal, as developed in the written submissions he provided to the Court in March this year, his complaints going to the contention that his conviction was unsafe and unsatisfactory, appeared to be as follows :-

(1) The prosecution had failed to demonstrate on the evidence (which was only circumstantial) that he was not provoked into killing the 2 children. In other words, the defence of provocation was available on the evidence.

(2) The defence of self-defence was also available to the Applicant.

(3) The jury was biased against him for various reasons including the fact that he was from the Mainland, the broad press coverage given to the case and the sympathy that the jurors had for the 2 young children.

5. Today, he has provided to us another set of written submissions. They add little, if anything, to the points already identified above, except for one significant matter which is that he now resiles entirely from his defence at trial, acknowledging its falsity, and says he killed the children to vent the anger and grievances he had against their mother. This was not a matter that had hitherto formed the basis of his provocation defence.

Provocation

6. According to the Applicant, he first met the 2 deceased's mother (who was a witness at trial) in Shenzhen back in 2000. She was divorced from the children's father at the time. It would appear he was attracted to her and was invited to Hong Kong to be employed to look after her children, the 2 deceased. To the Applicant's knowledge, the mother had a boyfriend, whom he met on several occasions. The mother did not live with the deceased. They lived in a flat in Tuen Mun and were looked after by the Applicant, who said he did the cooking, washing and other tasks. He was apparently promised a salary of $2,000 a month and there appears to have been some dispute at trial over whether there were arrears, but this is of little consequence.

7. The Applicant's version at trial of what happened in the late afternoon of 25 July 2002 at the Tuen Mun flat was briefly as follows :-

(1) Earlier in the day, the Applicant had unsuccessfully tried to speak to the mother. He became unhappy when she did not return his calls. Although he was in love with her, he felt that this was not reciprocated and that she was also perhaps taking advantage of him.

(2) At about 5:15 pm when he was in the flat with the children watching television, he mentioned to them that he was in love with their mother and wanted to marry her. This caused both children to scold him and to use insulting and hurtful words. This upset the Applicant. He reprimanded the 2 deceased, but they continued with their abuse and even turned up the volume of the television. This made the Applicant even more upset.

(3) In order to frighten the children, the Applicant went into the kitchen and came out with a chopper. According to him, he accidentally cut the boy's neck but said he did not intend to harm him. In cross-examination, he agreed that he did not need to use a chopper to frighten the children, but the fact remains he did.

(4) The boy's reaction to being cut was to go into the kitchen to fetch a knife. He then attacked the Applicant, in the process injuring the little finger of one of his hands. The Applicant fought back with the chopper as the boy continued trying to stab him. Meanwhile, the girl grabbed the Applicant's thigh although she did not attack him.

(5) In fighting back (as he put it), he frantically chopped both children. In his cross-examination, he admitted having pulled up the clothing of the children before using a knife to stab them. They were killed during this frantic attack.

(6) After killing the children, he tied up their bodies and put them in nylon bags. He cleaned up the flat, went out to eat before returning, showering and then going to bed. In his written submissions, the Applicant said he telephoned the mother to inform her of the children's death. The next day, he informed the police of his deed.

(7) Throughout his account of the incident, the Applicant continually referred to the fact that at the time of the killing, he was not in control of himself, that he was angry, upset, frightened and confused.

8. The prosecution called, among others, a pathologist to give evidence of the autopsy findings and his conclusions from them. For the boy, he said this (the following is the translation) :-

"In conclusion, the autopsy findings suggested that the deceased was firstly chopped on the head. He put up a defence and sustained defensive injuries to his upper limbs. Later, he was pinned down or was otherwise prevented from struggling further, and was chopped repeatedly on the face and the front of the neck. Later, his T-shirt was pulled up and a pointed single-edged knife was used to make a series of aimed stabs onto his left chest. Three of these stabs penetrated his heart and he probably died shortly afterwards."

For the girl, he said the following :-

"In conclusion, the autopsy findings suggested that the deceased firstly sustained a heavy blunt impact onto her head which fractured her skull and impaired her conscious level. While she was non-moving, she was chopped repeatedly on the face. Her T-shirt was pulled up and a pointed singled-edged knife was used to make a serious of aimed stabs to her left chest. Her heart and aorta were penetrated and she probably died shortly afterwards."

9. The above facts and versions of events, together with numerous other matters (such as the video-recorded interviews given by the Applicant after his arrest and the testimony of other witnesses) were all left by the judge in his summing-up for the jury to consider. The jury was in our view carefully and comprehensively directed on the facts, and on the law, the judge fully and fairly directed the jury on basic matters such as the burden and standard of proof, the Applicant's previous good character and lies.

10. On the law of provocation (which is a statutory defence under section 4 of the Homicide Ordinance, Cap.339), the judge was again in our view correct in the way he summed up the law to the jury. He left it to the jury to consider first, whether the Applicant was provoked by the acts done or words spoken (or both) by the children to do as he did, and secondly, if so, whether such conduct or words (individually or cumulatively) were such as to cause a reasonable and sober person of the Applicant's age and sex (and in his circumstances), to do as he did. The judge then explained the concept of a reasonable person and reminded the jury that the burden was on the prosecution to establish guilt meaning, in this context, that provocation had to be disproved.

11. In our view, there was nothing wrong with the judge's summing-up. It was fair, balanced and comprehensive. Nor can the unanimous verdict of guilty by the jury following that summing-up be criticized. On the contrary, given even the Applicant's original version alone of what happened on that tragic day, the defence of provocation is unavailable. A loss of self control caused by fear, panic and sheer bad temper is not enough to found the defence :- see R v Acott (1997) 2 Cr App R 94, 102; HKSAR v Ma Siu Chiu [2004] 1 HKC 253, at 264 (paragraph 31). The defence would certainly not have been available in the circumstances of the present case as newly presented on this appeal in relation to what might be classified as a revenge killing because of the mother.

Self-defence

12. According to the Applicant at trial, he was merely defending himself against in particular the boy when he killed the children. Again, the judge gave a proper direction both as to the law and the facts. He placed before the jury 2 questions. First, did the Applicant honestly believe it was necessary to defend himself against a 9-year old boy (albeit he was wielding a knife and was, according to the Applicant, the size of a boy of 12); secondly, was the amount of force reasonable in the circumstances?

13. Neither the direction to the jury nor the jury's verdict can, in our view, be impugned. All the relevant facts and matters, both for and against, were placed before the jury to assess. It was entitled to reject, as it did, the defence. For our part, we view with extreme scepticism the notion that the aggressive acts of a 9-year old boy (which were brought about by the Applicant having chopped the boy's neck in the first place) could reasonably induce a person to react by a multiple and frantic chopper attack culminating in stab wounds to both children, after he had deliberately pulled up the upper clothing of both children. It is a scepticism vindicated by the admissions made by the Applicant on this appeal.

Other matters

14. None of the other points raised by the Applicant has any merit. There was no basis to advance any of the submissions that were made. We likewise reject them. We therefore refuse the Applicant leave to appeal against conviction and we dismiss it.