HKSAR v. WONG FUNG

CACC 266/2018

[2022] HKCA 1163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 266 OF 2018

(ON APPEAL FROM HCCC NO 423 OF 2017)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

Introduction

1.  On 27 August 2018, following a trial before A Pang J (as she then was) (the judge) and a jury, the applicant was convicted by unanimous verdict of the murder of his wife (the deceased), contrary to common law and punishable under section 2 of the Offences Against the Person Ordinance, Cap 212.[1] He was sentenced to mandatory life imprisonment.

2.  On 5 September 2018, the applicant filed a notice applying for leave to appeal against his conviction. He was originally represented by Mr John Reading, SC, who after a review of the case was unable to identify any arguable grounds of appeal. However, in a letter dated 30 April 2021 to the Court, Mr Eric Cheung[2] submitted on behalf of the applicant that the judge materially misdirected the jury on the issue of murderous intent.

The brief facts

3.  At about 8:00 pm on 12 September 2014, the applicant, accompanied by his then legal representatives, surrendered himself to police officers at Tuen Mun police station and reported that he had killed his wife at their home. Counsel on behalf of the applicant told the police that at the time of the killing, the applicant had been discussing with his wife the breakdown of their marriage because of her extramarital affair. An argument ensued when they discussed getting a divorce and how their assets would be divided, during which “she belittled his sexual ability.”[3]

4.  The police attended the applicant’s home and discovered the deceased’s body in the bedroom. Wrapped around her neck was a blood-soaked towel, twisted at the end, and some electric wires. They also found inside the bedroom a number of items stained with the blood of the deceased, including a broken axe handle, a metal axe head, a broken speaker, a watch box, pieces of a watch winder, a broken vase and a broken pot.[4]

5.  The police arrested and cautioned the applicant for the murder of his wife, who said in response, “I understand. Around 6:00 am on 12 September 2014 I quarrelled with my wife, Wong Lei, over her extramarital affair. 我一時錯手將太太打暈. I then left home. This afternoon I consulted my lawyer. Then I immediately came to the police station to surrender myself.” [5]

6.  The original English translation of the Chinese characters in the applicant’s caution statement was “I accidentally knocked my wife unconscious”, but Ms Charlotte Draycott, SC, counsel for the applicant at trial, took issue with the word “accidentally”.[6] She contended that the term “chor sau” meant “mistake” and what the applicant was saying was that he did not intend or mean it. She submitted that the applicant did not tell the police he killed his wife by accident because that would be ridiculous and he would not be guilty. The defence took this position because the applicant’s case was that he unlawfully killed his wife and was guilty of manslaughter by reason of provocation.

7.  As a result, it was agreed that the applicant’s caution statement be an admitted fact with the Chinese characters included in the body of the statement and that the English translation in the police officer’s notebook be amended to read “I chor sau (transliteration) knocked my wife unconscious, and then I left home.”[7]

8.  Returning to the facts of the case, the applicant came to Hong Kong in 1985 and married the deceased in 1987. They had been living in a flat in San Hui Village, Tuen Mun since 1996. They had two adult children, who lived separately from their parents.

9.  At around 7:00 am on 12 September 2014, a domestic helper in a neighbouring home heard “a weak female voice crying for help” on three occasions, as well as “arguments and a banging noise”. At around 8:46 am, the applicant was captured on the CCTV of the building leaving his home, carrying a rucksack with him.

10.  Having conducted an examination of the deceased at the flat, Dr Foo Ka-chung, a forensic pathologist, performed an autopsy on the deceased.[8] He found that the deceased had sustained multiple injuries, including 17 lacerations and cuts to her forehead, ears, face, eyelids, eyebrows, nose, mouth and lips. Whilst most of these wounds were between 1 and 3 cm, one of them was about 6 cm in length.[9] He also observed bruising around her neck and multiple bleeding spots over her eyes. He was of the opinion that the injuries were likely to have been inflicted before the deceased’s death, which were concentrated on the deceased’s head and upper body. He considered that the injury on the deceased’s head and most of the other injuries were caused by blunt force from hard objects while the broken vase and the broken glass fragments from the watch box could be responsible for the cut wounds on the deceased, such as those on her ear and finger. He also considered that there were a number of defensive injuries on the deceased which were consistent with her trying to fend off the attack or the objects. In his opinion, the deceased died from asphyxia, caused by applying pressure to her neck.[10]

11.  Having conducted an examination of the flat on the evening of 12 September 2014, Dr Lin Sze-wah, a Government Chemist from the Forensic Science Division of the Government Laboratory, noted blood splatter patterns on the wall, the wardrobe and on the headboard inside the bedroom.[11] She found that the blood impact splatters were formed by a hard object hitting the deceased at least three times. She was of the opinion that the attack on the deceased was quite fierce, involving multiple attacks as revealed by the blood patterns, which were mainly carried out on or near the bed when she was standing or sitting.[12]

12.  At the arraignment of the applicant for the murder of his wife, he said, “I plead not guilty to murder, but manslaughter, because I was seriously provoked at that time and I was out of control.”[13]

13.  The defence case was run on the basis that the applicant killed his wife by reason of provocation and hence the trial was narrowly focused on this issue. Consistent with the defence case the applicant agreed by way of an admitted fact that he “unlawfully killed” his wife on 12 September 2014.[14]

14.  The prosecution case was that it was a one-sided attack by the applicant, who killed the deceased with the intent to kill or to cause her grievous bodily harm, and that he had not been provoked, causing him to lose his self-control. The prosecution asked the jury to draw the inference from the proven facts that the applicant was guilty of murder, namely the deceased had cried for help three times, the presence of such items as a broken axe and broken cooking pot inside the bedroom, which would not normally be there, and the applicant’s conduct after the killing of leaving the flat without attending to his wife, and calmly arranging his personal matters before going to see his lawyer.[15]

15.  The applicant did not testify in the trial. The defence case was basically presented through the evidence of his then solicitor, who testified about meeting with the applicant after the killing and accompanying him together with counsel to report the matter to the police. He said the applicant had told him that he had killed his wife in the course of an argument over her having had an affair with another man and that she told him that she was more sexually satisfied by this man which caused him to lose his self-control and kill her.[16] This was encapsulated by Ms Draycott in her closing address to the jury:[17]

“… Through his solicitor he has told you that he killed his wife in the course of an argument over her affair in which she said her lover was better in bed than him, that he satisfied her sexually more than her husband of 30 years. That’s what he told his solicitor on the day when he was clearly still emotionally distraught by what had happened. And the lawyers in turn told that to the police. I suggest to you that is plainly what happened. But you must decide, in effect, did he do it in cold blood or in hot? Did he do it because he wanted it and intended it or did he do it because she pushed him too far, because he lost control?

I would suggest that everything that you have heard points to that, to a loss of control by somebody in the throes of a breakup of a long marriage who is being taunted by the woman he still loves. So did he plan it and think about it and intend her death when his mind was clear or did she push him too far so that he 錯手, and we’ve left that in Chinese because there’s no proper equivalent in English. But I would suggest it means that he was trying to say he did not intend it, it wasn’t what he meant to do. It was something he had done in the extremes of his hurt.

So what you have to decide is did he do it when his emotions ran so high he could not control himself and hit out in the agony of that moment of the loss of his wife, of the insult he suffered, of her preference for someone else, loss and humiliation. In that moment he threw things at her that made up the ordinary fabric of their lives, through anything that came to hand, not knowing how it would end. …

… it is only if you are sure that he was not provoked, that his wife did not say something unforgivable to him that drove him to behave as he did when his actions were beyond control that you can convict him of murder. You do not have to find that is what happened. You have merely to find that might have been what happened. And how can you ever exclude that as a possibility when you look at the state of that room, of the injuries that were inflicted, of the means by which they were inflicted. This was not a calculated killing.”

16.  Ms Draycott continued with this theme in her closing address, and submitted to the jury that if they were not sure that this was a “deliberate killing” then the proper verdict was manslaughter.[18] She contended that this was a clear case of someone losing their self-control, emphasising that this was not a “planned attack” but a “frenzied outburst”.[19] When discussing the breakdown of the applicant’s marriage and his wife’s extramarital affair, she posed the rhetorical question, “What changed his attitude into one of violence?”[20] She stressed to the jury that the wife had provoked the applicant to lose his self-control. Although she questioned the applicant’s intent at the time, it was on the basis that he had not planned to kill his wife. She said,[21]

“The questions you must ask are might he have killed his wife because he lost control of himself? And then might an ordinary man have lost control so that he attacked his wife, meaning to seriously hurt her? If the answers to those questions might be yes, then he is guilty of manslaughter and it is only if you can be sure it didn’t happen like that, that you could convict of murder.”

17.  In her concluding remarks, Ms Draycott made the point that the applicant had known about the wife’s affair. Still, it was her taunting remarks about how she was sexually satisfied by someone else that caused him to lose his self-control, emphasising that the prosecution had to prove it was not a case of provocation. She added:[22]

“They must prove that Wong Fung was in control of himself and killed his wife knowing that’s what was going on, knowing, wanting, intending her dead or grievously hurt. That would be murder, but that’s not what happened here. Look at the scene, look at the injuries. They’re not the result of a calculated or reasoned attack. They are the result of a loss of control by a man in the grip of rejection who acted instinctively and without thought and without malice. If that is true or might be true, then do not convict him of murder.”

18.  It was submitted on behalf of the applicant that the circumstances did not allow the jury to draw the only reasonable inference that there was no provocation as suggested by the prosecution, but rather reflected a sudden and temporary loss of control by the applicant. It was further submitted that the various items found in the bedroom evidenced that the applicant was not in control of himself and grabbed whatever was at hand (to kill the deceased). As for the applicant’s conduct after the killing in sorting out his personal affairs, it was claimed that this showed a state of resignation on the applicant’s part, having been provoked to kill his wife.[23]

The summing-up

19.  In addressing the complaint in this appeal it is necessary to understand what was at issue at trial. This is succinctly reflected by the judge’s introductory comments in her summing up to the jury:[24]

“The prosecution contends here that the accused had not only caused the death of his wife, Wong Lei, intending at the time either to kill her or to cause her grievous bodily harm. Grievous bodily harm, that merely means really serious bodily harm. The prosecution also contends that at the time when the accused killed his wife, he was not provoked in the legal sense at all.

On the other hand, while by way of the Admitted Facts before you, the accused admits having unlawfully killed his wife and while he does not dispute most of the prosecution evidence, his case is that at the time of the killing, he was provoked to kill his wife. Of course, the defence does not suggest that the accused is not guilty at all. That is not the stance of the defence here. The defence simply contends that it is a case here of manslaughter by reason of provocation, not a case of murder as alleged by the prosecution.”

20.  As the sole issue at trial was whether or not the applicant was provoked, the judge went on to explain to the jury that whilst the defence relied on provocation, the burden was nevertheless on the prosecution to show that it was not a case of provocation.

21.  The judge briefly discussed with the jury the offence of murder, reminding them that if they found all the ingredients proven they still had to consider the question of provocation. She emphasised that for the prosecution to prove the offence of murder they had to be sure that at the time of the killing the applicant had the intent to either kill his wife or to cause her really serious bodily harm. At this point, she made sure the jury understood the element of murderous intent:[25]

“… I should tell you that in order not to repeat this long form of the intention required for the offence of murder, that is either intending to kill the deceased or intending to cause her grievous bodily harm or really serious bodily harm, in order not to repeat this long-term, I might just refer to it as murderous intent. Murderous intent, you know what I mean when I mention this. It is the intent to either kill the deceased or to cause the deceased really serious bodily harm at the time of the killing.”

22.  She reminded the jury that if they were sure that it was not a case of provocation, the verdict would be one of guilty of murder, adding that, “if it was or it might be a case of provocation, you must find the accused not guilty of murder, but as suggested to you, it will be a verdict as suggested to you by Ms Draycott, then it will be a verdict of guilty of manslaughter by reason of provocation.”[26]

23.  Further into her summing-up, the judge discussed at length the offences of murder and manslaughter taking the jury carefully through the elements and requirements of each offence. She directed the jury that before they could convict the applicant of murder they had to be sure of each of the following matters:[27]

“One, that the accused committed an act or acts which caused his wife’s death. And, two, that the killing was unlawful. And, three, that at the time of the act or acts which caused his wife’s death, the accused either intended to kill her or intended to cause her really serious bodily harm. If you are not sure of any one of those ingredients, then your verdict is not guilty of murder.

… If you are sure of all those ingredients, then the accused is guilty of murder, subject to - this is the important thing - subject to the question of provocation which can in the circumstances, on which I will be giving you direction, reduce a finding of murder to one of manslaughter.” (Emphasis added)

24.  In the course of discussing the three matters constituting the offence of murder, the judge invited the jury to consider that there was no apparent issue in relation to each matter, leaving it for them to decide and emphasising that it was subject to the question of provocation. She said:[28]

“Now, let us deal with each of these matters which the prosecution must prove for the offence of murder. If we turn back to page 1, the first item in bold, that is the accused committed an act or acts which caused his wife’s death. Now, as there is this admission of killing coming from the accused which has been set out in the Admitted Facts and which matter you must treat as having been conclusively proved, the fact that the killing of Wong Lei was done by the accused is not an issue at all in this case. That is not an issue and you should have no difficulties in finding this element proved.

Now, the second element, again in bold, that the killing was unlawful. Again, as you have got the admitted fact about the unlawfulness of the killing, you should have no difficulties in finding yourselves sure that this element is also proved. The third and the final ingredient or element which the prosecution must prove to establish the offence of murder is that, three, at the time of the act or acts which caused his wife’s death, the accused either intended to kill her or intended to cause her really serious bodily harm. In this case, the cause of the deceased’s death was pressure on the neck or mechanical asphyxia.

I trust you would agree that anyone doing that on the deceased must have intended to at least cause the deceased really serious bodily harm if not intending to kill her. In fact, the defence does not seek to argue otherwise. Ms Draycott has never suggested to you in both her opening and closing addresses that they or the defence is seeking to argue otherwise. They are not doing this. So, given the evidence before you, you should have no difficulties in finding yourselves sure that the accused did intend either to kill his wife or to cause her really serious bodily harm at the time when he killed her.

Now, in connection with the offence of murder, you should know that the prosecution has only to prove that the accused had the necessary murderous intent at the time of the killing - at the time of the killing. It need not have been a longstanding intention. It need not be that. It is sufficient for it to have been formed in a few seconds and for it to have been at the mind of the accused at the time of the killing. For example, in a sudden flash of temper, a plan to kill is not a must - is not a must - and is not something which the prosecution has to prove. So bear this in mind.

What matters is the accused’s intent at the time of the killing, not before and not after. One may not have planned to kill another person before he formed the murderous intent at the time he killed. So no pre-planning is required. Similarly, one may have regretted the killing the very next moment after the killing, although, he did intend to kill or to cause the other person really serious bodily harm at the time. So what is material is the intent at the time of the killing, not before and not after.

Now, having looked at the elements of murder, let us now turn to the question of provocation which you have heard so much about it in both counsel’s speeches, because even if, based on this handout that I have provided to you, even if you were to find all the ingredients of murder proved, you would still have to in this case consider the question of provocation … ” (Emphasis added)

25.  Whilst the judge told the jury that they should have no difficulties in finding the applicant had the requisite murderous intent, she nevertheless made it plain that it was still a matter for them to consider and determine, which was in any event subject to the question of provocation. This was apparent from her concluding remarks in the above passage. In addition, the judge had previously told the jury that they were free to reject any view that she might express on the evidence if it did not accord with their view of the evidence.[29]

26.  At the conclusion of the summing-up, when discussing with the jury the document entitled “Route to Verdict”, the judge repeated her comments about the applicant’s intention at the time of the killing. She said:[30]

“Route to verdict. Questions you will need to ask yourselves in relation to the count of murder. …

Question 2. Are we sure that the accused intended to kill Wong Lei or to cause her really serious bodily harm? If the answer is ‘No’, find him not guilty. If the answer is ‘Yes’, go to question 3. Again, I have told you that the defence does not suggest otherwise. The defence does not suggest that by doing what the accused had done, he had no such intent at that time. In fact, this is not an issue between the parties here, so, you will have no difficulties finding yourself sure about the murderous intent required.” (Emphasis added)

27.  The applicant complains that the above italicised passages are the impugned directions in which the judge wrongly directed the jury that there was no issue taken by the defence in respect of the element of murderous intent.

The ground of appeal

28.  The sole ground of appeal is that the judge materially misdirected the jury on the issue of murderous intent.

Misdirection on murderous intent

29.  Mr Cheung argues that the judge erred in directing the jury that they should have no difficulties in finding to the requisite standard that the applicant had murderous intent when he killed his wife, thereby taking away from the jury’s consideration the element of murderous intent, which was a live issue. He submits that the existence of murderous intent was an essential element to be decided by the jury upon consideration of all the evidence.[31]

30.  Mr Cheung relies on the judge’s comments in the impugned directions.

31.  We are satisfied that this ground of appeal is not sustainable. The line had been drawn clearly in the sand that this was a case of murder or manslaughter by reason of provocation. Due to the way the case had been defended, it was put to the jury that before they could convict the applicant of murder, having satisfied themselves of the elements of the offence, they had to decide that this was not a case of provocation.

32.  It was an admitted fact that the applicant had unlawfully killed his wife. It was the defence case at trial that the applicant was guilty of manslaughter by reason of provocation but not murder. The jury was directed that the prosecution had to prove so that they were sure that the applicant was not provoked before they could convict him of murder. They were also reminded that if it was or might be a case of provocation then they should return a verdict of manslaughter by reason of provocation.[32]

33.  There was no issue taken by the applicant in respect of the element of murderous intent as the focus of the defence case was on provocation. It was therefore proper for the judge to direct the jury that they may have no difficulties in finding that the applicant had murderous intent at the time of the killing. This was apparent from the overall tenor of the defence closing speech to the jury in which they were told that the only contentious issue was whether the applicant killed his wife under provocation.[33]

34.  No criticism has been leveled against the judge for the directions she gave to the jury on the law. There is an obviously good reason why Mr Cheung has not done so, and that is because the judge followed the relevant specimen directions regarding murder and manslaughter by reason of provocation. Having directed the jury on the ingredients of murder, she reminded them that it was subject to their consideration of the partial defence of manslaughter by reason of provocation. The judge’s directions were discussed at length with counsel, who took no issue with the judge’s ultimate directions in respect of murderous intent and provocation.[34]

35.  The instructions to the jury as set out in the written handouts made it abundantly clear that the jury had to be sure that the applicant unlawfully killed his wife. At the time of the killing, he either intended to kill her, or to cause her really serious bodily harm, before finding that the applicant was guilty of murder unless they concluded that this was or may have been a case of provocation.

36.  This was repeated and properly set out in the Route to Verdict which was handed to the jury to assist them in their deliberations. The judge in the final phase of her summing-up took the jury through the document, reiterating a number of matters that they should bear in mind, including that it was for the prosecution to prove that it was not a case of provocation and even if they completely rejected the defence case the prosecution still bore the burden of proving the case against the applicant.[35] The document read:

“Questions you will need to ask yourselves in relation to the count of murder

1. Are we sure that the Accused committed the unlawful act or acts which caused Wong Lei’s death?

  If the answer is ‘No’, find him Not Guilty.

  If the answer is ‘Yes’, go to Question 2.

2. Are we sure that the Accused intended to kill Wong Lei or to cause her really serious bodily harm?

  If the answer is ‘No’, find him Not Guilty.

  If the answer is ‘Yes’, go to Question 3.

3. Are we sure that the Accused was not acting under provocation (as it has been defined to us)?

  If the answer is ‘No’, find him Not Guilty of murder, but Guilty of manslaughter (by reason of provocation).

  If the answer is ‘Yes’, find him Guilty of murder.”

37.  It is appropriate, at this stage, to set out the relevant section of Specimen Direction 51.1 Provocation (Murder) as at the time of trial:

“1. If you are sure that the defendant unlawfully killed X intending to kill X or to cause X really serious injury, the defendant is guilty of murder unless you conclude that this was or may have been a case of provocation (Subject to any question of diminished responsibility). Provocation is not a complete defence, leading to a verdict of ‘Not guilty’. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the defendant’s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the defendant to establish that it was.”

38.  The specimen direction continues to address the questions of whether the defendant was provoked in the legal sense and whether his conduct had been such as to cause an ordinary and sober person of the defendant’s age and sex and other special characteristics to do as he did.

39.  The partial defence of provocation to a charge of murder is set out in section 4 of the Homicide Ordinance, Cap 339, which reads:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

40.  Upon being satisfied that the defendant unlawfully killed the deceased intending to kill or to cause really serious injury, the question of provocation when raised as the sole defence is determinative of whether a defendant is guilty of murder or the lesser offence of manslaughter. In the circumstances of the present case, the sole issue before the jury was whether this was or might be a case of provocation. The defence took no issue with this approach because it was the applicant’s case that he was guilty of manslaughter by reason of provocation. In this sense, and this is how the defence wanted the jury to consider the issue, it was a question of whether the offence of murder had been reduced to manslaughter because it was or might have been a case of provocation.

41.  In HKSAR v Liang Yaoqiang[36], Fok PJ, giving the judgment of the Court of Final Appeal, provided the following useful explanation of section 4:

“31. … The underlying rationale of the defence of provocation on a charge of murder is that the law deems that there may be circumstances in which an impulsive homicidal act done by a person who has been provoked into losing his self-control should be excused the ultimate penalty, now a mandatory sentence to life imprisonment, reserved for the crime of murder. The law does so, not by treating the defendant’s intention in killing to be otherwise than that for murder, but by reducing his culpability for the intentional killing to that of the crime of manslaughter. Thus, the doctrine derives from ‘the law’s compassion to human infirmity’ and is ‘a concession to human frailty’, the policy of the law being to recognise that, in some instances, things said or done may cause a person to lose their self-control so that the resulting intentional act causing death is to be regarded as one which any person with ordinary powers of self-control would or might have done. If this is so, then the defence applies.” (Citations omitted)

42.  In the above passage, Fok PJ emphasised that reducing the offence of murder to manslaughter by provocation did not treat “the defendant’s intention in killing to be otherwise than that of murder”, citing Lee Chun Chuen v R[37]. This was a Privy Council decision on appeal from Hong Kong that was decided under the then common law principles of provocation. Lord Devlin, delivering the reasons of the Board, reaffirmed the law that the defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation.[38]

43.  It follows that the partial defence of provocation to a charge of murder would be otiose unless there is an intent to kill or to do grievous bodily harm.[39]

The defence concession on murderous intent

44.  Mr Cheung argues that the judge was wrong to suggest that the defence had conceded that the element of murderous intent was not an issue. He submits that Ms Draycott in her opening and closing addresses to the jury questioned the nature of the applicant’s intention at the time of the killing.

45.  He contends that Ms Draycott in her opening address stressed that the prosecution had to prove the applicant had the requisite murderous intent and that was the reason why he chose not to give evidence.[40] However, what she said was that the prosecution had to persuade them that the applicant was guilty of murder, in that he intended this killing because “he wanted it and he hoped to achieve it or at least to cause his wife really serious injury.”[41] She went on to tell the jury that this was not a calculated killing and that something happened that morning that made the applicant lose control, submitting that he had been taunted by his wife about her relationship with another man. She specifically invited the jury that “if you think what I have said is true or even might be true, then the proper verdict for you to bring in is one of manslaughter on the basis of provocation.”[42]

46.  Whilst accepting that Ms Draycott’s emphasis in her closing address was on provocation, Mr Cheung contends that there was no concession by her regarding murderous intent. He referred to various extracts from her closing address in which she suggested that the applicant had lost control and did not want or intend to kill his wife, or that this was not a deliberate or planned killing. Mr Cheung relies on the following concluding remarks of Ms Draycott. Still, it is apparent from her overall address to the jury that she was submitting to them that the applicant violently assaulted the deceased, killing her, because he had been provoked by her and lost his self-control.[43] Before these remarks, she had described the applicant’s attack on the deceased as “a frenzied outburst” or “an unplanned outburst” because he had lost his control.[44] She posed the following to the jury, “the questions you must ask are might he have killed his wife because he lost control of himself? And then might an ordinary man have lost control so that he attacked his wife, meaning to seriously hurt her? If the answer to those questions might be yes, then he is guilty of manslaughter and it is only if you can be sure it didn’t happen like that, that you could convict of murder.” [45] (Emphasis added) Immediately after these remarks, she went on to say:[46]

“They must prove that Wong Fung was in control of himself and killed his wife knowing that’s what was going on, knowing, wanting, intending her dead or grievously hurt. That would be murder, but that’s not what happened here. Look at the scene, look at the injuries. They’re not the result of a calculated or reasoned attack. They are the result of a loss of control by a man in the grip of rejection who acted instinctively and without thought and without malice. If that is true or might be true, then do not convict him of murder. Even apart from any sentence he receives from this court, he will be punished for what he did for the rest of his life.”

Murderous intent as a live issue

47.  It is contended by Mr Cheung that the element of murderous intent was a live issue on the evidence and should have been left to the jury to determine whether it had been proven or not. Whilst the applicant chose not to testify at trial, Mr Cheung argues that the applicant’s cautioned statement, in which he said he “accidentally” hit his wife unconscious, negated any murderous intent. He further argues that even if the jury had rejected the applicant’s caution statement, the forensic evidence that the cause of death was strangulation raised the spectre as to whether the applicant had the requisite murderous intent when he applied pressure onto his wife’s neck. Therefore, the jury had to consider whether they could draw the only reasonable inference from all the circumstantial evidence that the applicant had the requisite murderous intent at the time of his act of killing the deceased. The problem with this submission is that this was not how the defence ran its case at trial, nor does it take into account that the death of the deceased was a result of a violent assault by the applicant.

48.  It is quite telling that no complaint was ever made by Ms Draycott about the judge’s directions as is now being complained before us.

49.  One of the difficulties, when a new set of legal representatives considers a case to take on appeal, is the lack of detailed understanding and knowledge of the case run at trial. This can be particularly grievous when the issue or issues on appeal concern how the case was conducted by the previous legal representatives at trial. That is why this Court has stated in emphatic terms that if on appeal complaint is made either impliedly or explicitly about the conduct of the legal representatives at trial there is a procedural and professional obligation on the new legal representatives to make appropriate enquiries of the previous legal representatives as to why something happened or did not happen at trial, which should or should not have occurred. It is also incumbent on the new legal representatives to ensure that the Court is fully and accurately apprised of all matters germane to the issue or complaint on appeal.[47]

50.  Despite his implied criticism of how the defence was run at trial, particularly the implied failure by Ms Drayscott to object or correct the judge’s comments in respect of murderous intent in her summing-up and to request that the jury be directed on the alternative verdict of unlawful and dangerous act manslaughter, Mr Cheung had not made any enquiries with her in respect of these various matters. He emphasised on the fact that the English translation of what the applicant said in Chinese under caution was that he “accidentally” knocked the deceased unconscious. However, the applicant through his counsel at trial challenged the correctness of this translation, disputing that the Chinese expression he used was a reference to the accident. As we have already pointed out, the jury were only referred to the expression he used in Chinese of chor sau.

The comparison with Ho Hoi Shing

51.  Mr Cheung submitted that the present case was similar to Ho Hoi Shing v HKSAR[48]. In that case, the appellant had been convicted of murder in that he strangled the deceased in a fit of rage, having had his plea of guilty to manslaughter by provocation rejected by the prosecution. The Court of Appeal dismissed the appeal and rejected this submission that the alternative verdict of unlawful and dangerous act manslaughter should have been left to the jury. The Court of Final Appeal overturned this decision on the basis that the evidence was sufficient to provide a proper foundation for the alternative verdict. The Court also made the point that a judge when addressing such an issue must take a view of the evidence most favourable to the defendant.

52.  The factual circumstances and the way the defence case was run in Ho Hoi Shing were very different from the present case. It needs to be borne in mind that the applicant’s attack on the deceased was described as “quite fierce” and involved the use of a broken axe, a broken pot, a broken vase, and a broken watch box which were all stained with the deceased’s blood. The deceased had sustained numerous injuries mainly concentrated on her head and upper body, and were caused by blunt force with hard objects. There were also defensive injuries found on the deceased. The evidence was insufficient to provide a proper foundation for the alternative verdict of manslaughter by unlawful and dangerous act.

The alternative verdict of unlawful act manslaughter

53.  Mr Cheung argued that in light of the applicant’s caution statement, and the pathologist’s evidence that the cause of death of the deceased of mechanical asphyxia or pressure on the neck could have been caused by a bare palm or forearm over the deceased’s neck for only 30 seconds, there was a realistic possibility that a reasonable jury could have found that the applicant might not necessarily have the murderous intent. Hence the elements of murderous intent should be left as a live issue for the jury’s determination.[49] He submitted that the judge should have given a proper direction on inferential reasoning set explicitly in the context of the evidence and the rival arguments on this issue to guide the jury’s determination;[50] and that she should have left the alternative verdict of unlawful act manslaughter to the jury even though the defence had only raised that of manslaughter by provocation.

54.  The issue raised by Mr Cheung as to whether the judge should have directed the jury on the alternative verdict of unlawful and dangerous act manslaughter rests on the applicant’s caution statement that he “accidentally” hit his wife unconscious and the cause of death being pressure on the neck or mechanical asphyxia. As we have already mentioned, the applicant took issue that the killing of his wife was an accident because his case was that he lost his self-control by reason of provocation. To this end, Ms Draycott submitted to the judge that it would be “ridiculous” that the applicant killed his wife by accident and that when he used the term chor sau he meant he did not mean to do it. She stated:[51]

“… he came into the police station to tell them that he’d killed his wife and he didn’t mean to. He didn’t tell it -- come in to tell them that he’d done it by accident. That would be ridiculous. If he’d done it by accident, he’d be not guilty because he’s coming in to hand himself in. He has never suggested that it was accident, and he has never suggested that he wasn’t guilty.

I mean if it’s left as it is, the jury may think he was trying to get out of it. He certainly wasn’t doing that. …”

55.  The matters mentioned by Mr Cheung should be considered in light of all the evidence and the way the case was presented at trial. As revealed by the admitted facts, it was not in issue that the applicant subjected the deceased to a series of violent assaults and “unlawfully killed” her. Whilst the applicant did not testify, he called his lawyer at the time, Mr Paul Tse, who gave evidence regarding his conversation with the applicant after he killed his wife. He said that the applicant was furious when he heard the deceased mentioning her sexual relationship with the other man and that he used words to the effect “that he killed his wife by throwing various objects, including speakers at her, and he killed out of madness and out of anger …”.[52] The sole focus of the defence case was that the applicant lost his self-control because of the provocative conduct of the deceased. The constant theme of defence counsel’s closing address to the jury was that it was not a deliberate or planned killing[53] but one where the applicant had lashed out or erupted into violence because he lost his self-control.[54]

56.  Mr Cheung relies heavily on the supposed factual similarities and the stated legal principles on alternative verdicts in Ho Hoi Shing to argue that the judge erred in failing to direct the jury on the alternative verdict of unlawful and dangerous act manslaughter, even though no issue was raised or request made by defence counsel for such a direction. He relies on the principle that irrespective of the position of the parties the judge is duty-bound to place an obvious alternative verdict before the jury.

57.  The principles stated in Ho Hoi Shing have to be considered in light of the judgment of the Court of Final Appeal in Chau Yui Ming[55]. Ma CJ, with whom the other judges agreed, emphasised that care needs to be exercised when defining the obligation to direct an alternative verdict. He stressed that the way the defence was run on the facts was relevant in determining whether there was sufficient evidence to support an obvious alternative verdict. He made the point that if a factual alternative did not arise in the way the defence was run, this would in most cases be decisive.[56] He warned against directing an alternative verdict which would be confusing and wrong for the judge to do, if it was contrary to the defence evidence and approach to the evidence. He noted that “this would invite ingenious attempts to identify alternative scenarios, particularly after trial, in order to impugn a summing-up, these allegations bearing little or no resemblance to what was the reality at trial.”[57]

58.  Ma CJ quoted with approval the comments of Mustill LJ in R v Fairbanks[58], in which he said that a judge is obliged to leave a lesser alternative only if it is necessary in the interests of justice, adding:

“… Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.”

59.  We are cognizant of the general principle that an accused should not be over-convicted or under-convicted and hence this may require a judge to direct on a possible alternative verdict. However, this will depend on the way that the defence case was run and the sufficiency of evidence to support an obvious alternative verdict. The defence case and the emphasis on the evidence were solely focused on manslaughter by reason of provocation. In the circumstances of this case, it would have made no sense to the jury, or more than likely would have seriously confused them, if they had been directed on an alternative verdict of unlawful and dangerous act manslaughter. The offence of manslaughter by a dangerous and unlawful act arises where the actus reus of murder is present, with no specific intent to kill or to cause grievous bodily harm. Given the violent nature of the assaults on the deceased, the applicant plainly intended to cause grievous bodily harm.

60.  It also follows that the suggestion by Mr Cheung that the judge should have directed the jury on the alternative verdict of unlawful and dangerous act manslaughter is unsustainable. In our view, there was no sufficient evidential or proper foundation to direct the jury on this alternative verdict.

61.  Ms Draycott, an experienced and senior criminal law advocate, made no complaint about the judge’s directions to the jury in respect of her comments on murderous intent and the position taken by the defence on this issue, nor did she request or lay the foundation for the jury to be directed on the alternative verdict of unlawful and dangerous act manslaughter. The defence case was solely and consistently run on the partial defence of provocation.

Conclusion

62.  For the reasons we have given, the application for leave to appeal against conviction is accordingly refused and the appeal is dismissed.