HKSAR v. LEE KOON FAT

CACC 416/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 416 OF 2010

(ON APPEAL FROM HCCC NO. 128 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Hartmann JA (giving the reasons for judgment of the Court):

1.  On 9 November 2010, following a trial in the Court of First Instance before McMahon J and a jury, the applicant was convicted by unanimous verdict of the charge of murder and sentenced to life imprisonment.

2.  When indicted, the applicant had pleaded not guilty to murder but guilty to manslaughter.  His defence to murder was based on provocation.

3.  The applicant sought leave to appeal his conviction.  There was a single ground of appeal, namely, that during the course of the trial a prosecution witness uttered words that had no probative value but were so prejudicial to the applicant’s defence of provocation that the jury should properly have been discharged.  This, however, the judge failed to do, that failure amounting to a material irregularity in the conduct of the trial.

4.  Having heard submissions, we dismissed the application saying that we would give our reasons later.  We do so now.

Background

5.  On 13 December 2009, in their home in Tuen Mun, the applicant killed his wife.  He admitted attacking her with a hammer, inflicting a number of blows to her head and face, and thereafter to strangling her.  The autopsy report recorded the cause of death as being: ‘head and facial injuries and pressure on neck.’

6.  At the time of the killing, the applicant and his wife had been married about seven years.  The applicant, a man in his late fifties, was some 19 years older than his wife.

7.  Shortly after their marriage, the applicant was discovered to have diabetes which required a regime of insulin injections.  Heart problems were also diagnosed, requiring an operation to insert a stent.  The applicant, it appears, was unable to work.  Their financial circumstances were humble.

8.  The applicant said that the marriage was deeply unhappy.  They had a young son and argued constantly as to how best he was to be raised.  The applicant testified that his heart operation had led to impotency problems and that in this regard he was subjected to taunts from his wife.  The applicant believed that his wife was having affairs with other men.  There were constant arguments about money and talk of divorce.

9.  Seemingly, in support of his case should there be divorce proceedings, the applicant openly recorded some of the arguments between himself and his wife.  Transcripts of these recordings – ‘the transcripts’ – were placed into evidence.

10.  As to what happened on 13 December 2009, the day of the killing, the applicant said that he and his wife had another argument concerning their son.  The applicant said that in his agitation he experienced breathing difficulties and went out to the balcony.  His wife followed him.  The argument continued.  He kicked her and she picked up a hammer, swinging it in front of him.  The hammer, he said, hit his right hand causing one of the bones to break.  According to the applicant, his wife said that she wanted him to die.

11.  It was then, said the applicant that he lost his self-control.  He took the hammer from her, pursuing her back into the apartment and struck her with it.  She collapsed.  The applicant said that he did not want their young son to witness events and took him to one side.  When he returned, he said that his wife spoke his name.  He then struck her several times more with the hammer.  Shortly thereafter, he said, believing that she may still be alive, he knelt on her chest and strangled her.

12.  The prosecution did not dispute the fact that the applicant and his wife had a deeply unhappy marriage.  It sought to disprove provocation by demonstrating that, on his own evidence, the applicant had not suffered a sudden and temporary loss of self-control.  In this regard, the judge directed the jury in the following terms:

“Mr Dunn [prosecuting counsel]…points to the defendant’s evidence that he took his son out to the balcony and told him to be quiet as he did not want the neighbours to hear any disturbance, and told his son to look at the playground. He points to the defendant closing the curtain so that his son could not see inside the living room. He asks you, are they the actions of a man who is suffering from a loss of self-control, or are they the actions of a man who is behaving very deliberately, very thoughtfully, and very unemotionally at the time he killed his wife?

Mr Dunn points to other actions of the defendant before he strangled his wife. The defendant, you will remember, continued his attack after testing his wife’s breathing by placing his finger under her nose, and when he realised that she was still breathing, he then continued his attack and commenced to strangle her. You are entitled to consider whether these also are actions which point to the defendant remaining in control of himself and keeping his self-control and not having lost it.

…

There is one other aspect regarding this question of loss of control that you should consider and it was raised by Mr Dunn in the course of his speech to you. He says this. Even if the defendant had lost his self-control in the beginning of the attack upon his wife, he must have regained it after he had taken his son out onto the balcony and told him to look at the playground and drawn the curtain and then gone back into the living room. You remember that he had also told his son to be quiet because he did not want to attract the attention of the neighbours. Mr Dunn says even if the initial blow or blows were as a result of a loss of self-control, the defendant, by those actions, demonstrated that he had regained his self-control and that what followed was deliberate.

There is no issue that those early blows had not killed the deceased. That was [the forensic scientist’s] evidence and it has not been challenged. The blows to the head did not cause sufficient damage to her brain to kill her. So when the defendant went back into the living room, she was still alive.”

13.  For the purposes of this judgment, it is to be noted that it was never part of the prosecution case that the applicant had planned in advance to kill his wife nor that, prior to the day of the killing, he had attempted in any way to kill her or cause her serious bodily harm.  The prosecution sought to prove murder, and to disprove provocation, by asking the jury to consider the actions of the applicant on the day of the killing itself.

The prejudicial evidence

14.  The first witness called by the prosecution was Madam Wong Tung Ho.  She was the aunt of the deceased.  It was during the course of her evidence that the utterance was made which, it was submitted, was so prejudicial to the applicant that it should have resulted in the discharge of the jury.

15.  Madam Wong’s antagonism to the applicant was apparent from early in her evidence when she identified him as “the murderer”.  This brought about an immediate intervention by the judge who instructed the jury:

“… the witness has just referred to the defendant in a certain way. Just ignore that. That’s a matter for you to decide and not any witness.”

16.  Later in her evidence, during the course of cross-examination, Madam Wong was asked the following question by defence counsel:

“And she – the wife, your niece – she enjoyed good health, as far as you could see?”

17.  In reply, the witness made the reply upon which this application for leave to appeal was based.  She said:

“She had enjoyed good health up till 2009. Thereafter, I wonder what he had put into her soup, causing all her hair to come off. About half of her hair had come off, and there were several months when she suffered from that.” [our emphasis]

Without interruption, the witness continued by saying:

“She had to give him $100 every day, but she had no job. He would spend all the money by the 20th. After the 20th, he would be demanding $100 from her.”

18.  Clearly, the witness at this juncture had been giving her evidence in an agitated manner, prompting the judge to instruct her in the following terms:

“Madam Wong, I’m going to only tell you this one more time. You will keep yourself under control and answer the question you asked. Do you understand?”

The actions of the judge

19.  The judge spoke to counsel in the absence of the jury in respect of Madam Wong’s outburst.

20.  There was some concern on the part of defence counsel, Mr Haynes, that there was reference to hair loss in the transcripts.  The references in fact arose out of the husband’s accusation that the wife was an evil person and that heaven had its own way of obtaining revenge: hence the fact that the wife was beginning to lose her hair.  In response, the wife said that her hair loss was none of his business.  

21.  Mr Haynes informed the court that he was instructed to apply for a discharge of the jury.

22.  Having heard submissions from both counsel, and in light of the fact that the autopsy report contained no adverse findings in respect of toxicology investigations, the judge formed the view that it was not necessary to discharge the jury, an appropriate direction being sufficient.  His reasoning was succinctly contained in a brief statement to Mr Haynes in the absence of the jury:

“I don't think this sort of nonsensical statement is such that it really would prejudice the trial so far as your client is concerned. The prosecution case is in the narrow ambit of a killing with a hammer and perhaps strangulation. It is not suggested that he was trying to kill her any other way…”

23.  The judge recalled the jury and directed them in the following terms:

“You have just heard this witness, Madam Wong, say something about “I don't know what he was putting in her soup, because she was suffering from hair loss”, referring to her niece, the deceased.

You must just ignore that completely baseless speculation that Madam Wong has just come up with. You can understand, I think, that perhaps she is a trifle emotional, and that sort of statement is something that is in no way relevant to the issues in this case. So I would ask – I see your nodding – I would ask you simply to ignore it. I think you can understand why Madam Wong would say something as silly as that in response to the question that she was just asked, but there is no basis for that. The prosecution case has nothing at all to do with any suggestion of things being put in the soup of the deceased; nothing at all to do with that, and there is nothing to suggest that at all except this witness’s somewhat wild speculation. So just ignore that – it’s not part of this case – and we’ll continue.”

24.  The direction ended with the following short statement:

“You will hear in fact, I think at a later stage, that the deceased had suffered some form of hair loss, but it had nothing to do with this defendant, and you can just ignore that matter completely.”

25.  When Madam Wong returned to continue her evidence, she was instructed by the judge just to answer the questions and not to add her own comments or “theories”.

26.  As it was, there was no further mention of hair loss during the giving of evidence.  This was because counsel agreed that reference to it in the transcripts – they being of no relevance either to the prosecution or the defence – should be deleted.

27.  However, the judge’s directions to the jury in respect of Madam Wong’s wayward statement did not end there.  It was his decision to raise the matter again in the summing-up.

28.  At the commencement of the summing-up, the judge focused the attention of the jury on the essential issues before them:

“So you may think the important issues in this trial concern the state of the defendant’s mind at the time he killed the deceased and, particularly, whether he may have been provoked into killing her.”

29.  Later in the summing-up, he then gave the following unequivocal direction:

“I want to give you a direction about something else she [Madam Wong] said in that regard. You might think, having heard [Madam Wong’s] evidence, that she was quite angry and upset at the defendant because he had killed her niece, a niece of whom she appears to have been very fond. She was obviously angry and obviously upset and, during her evidence, she, on occasion, referred to the defendant as “the murderer”. Eventually, she was stopped from referring to him in that way. But you might think she was an emotional woman and often did not restrict herself to answering the questions counsel asked of her but insisted on adding, on many occasions, other irrelevant information. I want to remind you of one occasion.

On one occasion in cross-examination, when Mr Haynes asked her about the health of the deceased, as I have just told you, she replied that the deceased had suffered from hair loss and then she added that she wondered what the defendant had put in the deceased’s soup.

Members of the jury, I do not think you would have much difficulty in recognising that to be a wholly idle and speculative comment from an angry and, you might think, even vindictive woman. There is simply no basis for [Madam Wong’s] comment other than her anger at the defendant. The deceased’s body was subjected to a forensic examination by the Government Pathologist, Dr Poon, and there is nothing from that examination remotely supporting [Madam Wong’s] speculative comment.

Indeed, if you go to that report – and I will take you through it in due course, you will see, on page 3 of Dr Poon’s autopsy report, reference to there being no significant finding obtained for common drugs and poisons. So you must ignore – I will take you to that report in due course, members of the jury – so you must ignore completely what [Madam Wong] said in this regard and I am sure that you do not need me to tell you that. Common sense would tell you to ignore [Madam Wong’s] comment but I do give you that direction in any event. Ignore [Madam Wong’s] comment about the deceased’s soup.”

30.  Towards the end of his summing-up, the judge took the jury to the autopsy report itself, specifically to that section of the report headed ‘toxicology’ which confirmed that a general screening procedure for common drugs and poisons had come up with no significant finding.  Referring back to the evidence of Madam Wong, the judge said:

“… you will just remember what I said about absolutely disregarding Madam Wong’s evidence in that regard. Quite plainly she was wrong.”

The grounds of appeal

31.  On behalf of the applicant, Mr Haynes submitted that Madam Wong’s statement that she wondered what the applicant had put into her niece’s soup to make her hair fall out amounted to, and must have been understood to be, an allegation that the applicant had over a period of time attempted to poison his wife.  That being the case, it caused, or was plainly capable of causing, irreparable damage to the applicant’s defence that he had never in the past sought to cause his wife any serious physical harm and had only acted in the way he did on the day of the killing because he had been provoked.  Mr Haynes described the allegation as “dramatic, chilling and memorable”.  Hair loss, he said, was present in some, but admittedly not all, poisoning cases.  The allegation was not therefore beyond the bounds of credibility.

32.  Reference to hair loss in the transcripts was deleted, said Mr Haynes, in an attempt to avoid compounding the prejudice already caused.  There was no further mention of the issue.  But the fact remains that, immediately after the prejudicial statement had been made by Madam Wong, the judge informed the jury that they would at a later stage hear that the applicant had suffered some form of hair loss, a matter however which had nothing to do with the applicant and therefore which they could ignore.  As it was, there was no further mention of it in evidence.  The judge’s forecast was unfulfilled.  In the result, the issue of hair loss and whether it was connected in any way to the applicant’s wife being poisoned, was left ‘in the air’ and for that reason may well have continued to intrigue some members of the jury, their curiosity broadening into suspicion that any hair loss may well have been caused by soup poisoning.

33.  Mr Haynes submitted that, in a finely balanced case such as this one was, it was simply not possible to know whether the prejudicial material was capable of being ignored by the jury.  It was plainly capable therefore, even if only unconsciously, of influencing the jury.  That being the case the only effective remedy to avoid a possible injustice was to discharge the jury.

34.  The trial was in its early stages, said Mr Haynes, and administratively a discharge of the jury presented few difficulties.

Analysis

35.  Mr Haynes did not dispute that, both at the time when the prejudicial statement was made and in his summing-up at the end of the trial, the judge gave strong unambiguous directions to the jury that they should ignore the prejudicial statement for all purposes.

36.  Indeed, Mr Haynes suggested that the very full manner in which the judge dealt with the matter may have indicated that he appreciated just how prejudicial the statement truly was.  We do not agree.  The judge quite properly gave a full direction to the jury to avoid any possibility of misunderstanding.  But it does not follow that the judge considered Madam Wong’s outburst to be as prejudicial as Mr Haynes painted it to be.

37.  It is important to note that the judge did not only instruct the jury to ignore the outburst, he explained why that was the only sensible approach.  In short, he put the matter into a realistic context.  Perhaps the best illustration of this is his direction to the jury in his summing-up which we repeat:

“… I do not think you would have much difficulty in recognising that [statement] to be a wholly idle and speculative comment from an angry and, you might think, even vindictive woman. There is simply no basis for [Madam Wong’s] comment other than her anger at the defendant. The deceased’s body was subjected to a forensic examination by the government pathologist, Dr Poon, and there is nothing from that examination remotely supporting [Madam Wong’s] speculative comment.”

38.  As the judge made clear to the jury, even though Madam Wong’s outburst suggested that the applicant had in some manner or another attempted to poison his wife, it was made by an aggrieved relative in the vaguest of terms and was not supported by one shred of evidence.  In all good sense, it was not only a statement that was utterly irrelevant to the issues before the jury it was a statement which, when considered in the round, especially as to the emotional circumstances of the speaker, was not worthy of a moment’s credit.

39.  Mr Haynes described Madam Wong’s statement as being “dramatic, chilling and memorable”.  We confess that, on a reading of the transcript, it does not strike us as anything so profound.  Nor clearly did it strike the judge to be so.  As he said to Mr Haynes in the absence of the jury within a minute or two of the statement having been made: “I don’t think this sort of nonsensical statement is such that it really would prejudice the trial as far as your client is concerned.”

40.  Mr Haynes submitted that the failure at any further stage of the trial to refer to the issue of hair loss left the issue ‘in the air’ and for that reason may well have continued to attract the curiosity of some members of the jury.  The issue of hair loss was not further mentioned because, as counsel themselves recognised, it was of no relevance to any of the matters that fell for determination by the jury.  The judge may have indicated to the jury that there may be further mention of hair loss but he only did so by way of warning that, if and when encountered, it should be ignored.

41.  It lay within the discretion of the judge whether or not to discharge the jury.  It was for him to determine the degree of prejudice likely to occur as a result of Madam Wong’s random and irrelevant statement and from that to determine whether or not a fair trial was still possible. The governing principle has been stated by this Court in HKSAR v Nee Man Tak (unreported) CACC 220/2003 per Stock JA:

“Whether or not to discharge a jury is a matter for the discretion of the trial judge on the particular facts and in the light of the particular circumstances which the trial court faces, and this Court will not readily interfere with the exercise of that discretion: see R v Weaver [1968] 1 QB 353 at page 359 where Sachs LJ added these comments:

‘It follows, as has been repeated time and again, that every case depends on its own facts. It also, as has been said time and again, thus depends on the nature of what has been admitted into evidence, the circumstances in which it has been admitted and what, in the light of the circumstances of the case as a whole, is the correct course. It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged.’”

42.  It is long settled that the trial judge is in the best position to decide whether the degree of prejudice caused by an inadvertent statement in the course of trial demands that the jury be discharged or whether, with an appropriate direction, any risk of injustice to the accused can be avoided: see, for example, R v Leung Chi Yuen [1989] 2 HKC 24, at 31,citing R v Coughlan (1976) 63 Cr App R 33.

43.  In the present case, the judge was in the best position to see Madam Wong’s outburst for what it was, a vindictive, inconsequential aside uttered by an aggrieved relative which would wither under scrutiny.  He directed the jury accordingly both at the time the statement was made and in his summing-up.  More than that, in his summing-up he referred the jury to the autopsy report which said that no trace of toxins had been found.

44.  In our assessment the judge’s directions were both sensible and sensitive.  We are satisfied that the directions removed any possible prejudice to the applicant and thereby ensured a fair trial.