THE QUEEN v. TSE CHAN-YUN

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JUDGMENT

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Hon. McMullin, V-P. :

1. The appellant, TSE Chan-yun, was convicted on the 19th March this year, by unanimous verdicts of the jury, of the murder of CHAN Cheung-ngai (Count 1) and of Mr. CHAN's wife TSE Siu-sheung (Count 2). He now appeals against those convictions.

2. The appellant is aged 26, and both deceased were 61 years of age, when they died. Madam TSE was the appellant's aunt. She was the headmistress of the Endeavouress Fung Shui Cheung Memorial Primary School, while her husband was headmaster of King's Old Boys' Primary School. They lived in a flat on the 8th floor of a block of flats in Gloucester Road. As one might expect, their children had grown up and left home. The appellant lived in Kowloon.

3. The flat in Gloucester Road comprised three bedrooms, a sitting/dining room, a kitchen and a bathroom.

4. On the morning of the 25th January, 1983 neither Mr. CHAN nor his wife turned up at their respective schools at the usual time.  Madam TSE's colleagues (presumably Mr. CHAN's staff, too) were naturally concerned, and two male teachers went round to their flat. The front door bell went unanswered but shortly afterwards Madam TSE's daughter arrived with a key, and the three women went into the flat.

5. A ghastly scene met their eyes. There was a great deal of blood on the floor and on the wall, just inside the front door.  Mr. CHAN's broken spectacles were on the floor of the sitting-room. There was more blood on the wall outside the main bedroom and on a small carpet outside the lavatory. Another carpet was in the bath soaking in blood-stained water. Mr. CHAN and his wife were found dead, lying in separate pools of blood, almost side by side, on the floor of their bedroom. Their heads and faces were terribly mutilated by injuries. A piece of nylon string was tied loosely round the necks of each corpse; their heads were pointing in opposite directions.

6. The police were called. It transpired that the appellant had rung the front door bell of the flat at 4 p.m. the previous day (24th January). The part-time amah employed by Mr. CHAN let him in after checking with Madam TSE on the telephone while she was still at school that she had no objection, and after examining his identity card to establish that he really was who he claimed to be. The appellant had telephoned the flat earlier, and either then or when he eventually arrived, he mentioned that he wanted to talk to his aunt about his girl friend.

7. The appellant was sitting, waiting, in the flat when Madam TSE Came home from her school shortly afterwards. The amah spoke to her and went on with her work. Then, at about 6:30 p.m., Mr CHAN returned home.  The water supply to the flat was cut off that day and the amah was told that they would have supper out that evening. She left the flat at about 7 p.m., leaving her employers and the appellant conversing normally. All she had managed to prepare: because of the lack of water was a bowl of soup which she placed on the dining room table.

8. On the afternoon of the day when the tragedy had been discovered, a party of police officers went to where the appellant had been living, in Luk Ming Street Kowloon. He was not at home. They found a plastic bag with a pair of trousers and a pair of pants in it. The trousers, it transpired, were heavily stained with blood which could have come from the male deceased, whose blood was of a rare group, found only in about 0.01% of the Chinese population of Hong Kong.

9. Later the same afternoon, the police went to the home of the appellant's girl friend in Tokwawan Road.  She told the police, as she later told the jury, that in the evening of the 21st January 1983, the appellant had visited her and borrowed $600. She next saw him on the following day when he came to leave his re-entry permit with her, as he usually did, for safe-keeping. The appellant came to see her again at 11 p.m. on the 24th January and repaid the $600 he had borrowed.

10. On this occasion she noticed a bandage on the middle finger of one of his hands, she could not remember which. He took the bandage off and put dome oil on the finger which she saw was injured. She helped re-bandage the finger. She saw him for the last time (until the trial) on the 25th January 1983 when they watched television together in her flat for about half an hour in the early evening.

11. The appellant's girl friend told the jury that she had known him in Mainland China and they had entered Hong Kong illegally, and together, in 1980. They had stayed together in the flat for a few months after their arrival in Hong Kong. The flat belonged to her brother. They remained friends and went out to meals and the cinema together from time to time, but not all that often.  The appellant had spoken of his aunt but she had never met her.

12. The police did all they could to find the appellant and eventually he was arrested at a road block in Yuen Long on the 29th September 1983, that is just over nine months after the deceased were killed. The appellant had been driving a goods vehicle. When he was arrested, the appellant claimed to be CHAN Kin-wo whose identity card he had, but later, at the police station admitted his true identity. The real Mr. CHAN had lost his identity card in March 1983 at a construction site at Shatin.

13. The appellant made a long statement at the police station. The admissibility of that statement, which was made to a Detective Station Sergeant, was not challenged. At one stage he took over to write out his statement himself. He said, in this statement, that his father in China had often been criticised and denounced by the authorities there because of Madam TSE and her brother, who had defected to Taiwan.  He then added :

"Because of this matter, I had heated words with her and a quarrel started. She then slapped me once. When I hit back, my hand was caught by CHAN Cheung-ngai who bit me once. At that time, in a moment of fury, I snatched away an iron hammer from his hand to hit him. While hitting him, in fact it did not occur to me that I would hit the two of them to death. Later, when she took up the telephone receiver  to call the Police, I was afraid at that moment and then pushed the two of them down. Later, I myself also fainted for a while. When I regained my consciousness, I found that the two of them had already breathed their last."

14. In answer to questions he denied having taken any valuables from his aunt's flat. As regards the hammer (which was found in the victim's flat) he denied having brought it with him that afternoon. About it he also said :

"At that time, after my uncle had bitten me once, I hit back. I did not know where he took a hammer from and he hit me. Later, I snatched the iron hammer from his hand and hit him once on the head with the hammer. At that time, my aunt, on seeing this situation, immediately telephone saying 'Report to the Police'. Later, out of fear, I also hit her once with the hammer. Both of them then shouted out loudly at that time. I then dragged the two of them into room and covered them with quilt. I also intended to tie up the two of them together with the string of venetian blinds. But the string of venetian blinds was not long enough and finally, I only tied up my uncle."

15. On the 30th September 1983 the appellant was formally charged by a Superintendent of Police with the murders. In answer to the charge of having murdered Mr. CHAN, he said :

"He started to hit me first and I, in return hit him and killed him unintentionally."

In respect of Madam TSE's murder, he replied :

"She hit me at that time and I then hit her in return. She then took a knife to stab me and I snatched her fruit knife and stabbed her in return. She then caught hold of me and hit me with her hand/s. I then snatched a small hammer from the hand of her husband and hit her/ him in return."

16. On examining the male deceased, the forensic pathologist found 4 stab wounds on the right side of the head, with comminuted fractures and lacerations of the brain underneath. Some brain material had protruded through the fractures. There were another 6 stab woulds on the left side of the head, again with comminuted fractures, lacerations of the brain and protruding brain matter. There were 12 stab wounds on the right side of the face, and 2 such wounds on the left side. The chin had been lacerated as had been the left jaw and there was a corresponding comminuted fractures of the jaw.  There were single stab wounds on the upper and lower lips, and other injuries on the neck and on the chest.

17. The doctor also found that there was a superficial cut wound on the scrotum and bruises on both arms, hands, and on some fingers. There were abrasions on the left leg.

18. The deceased was thin, and healthy for his age. The cause of death was penetrating wounds of the skull with laceration of the brain. The pathologist was shown a fruit knife and he thought that the only injury that could have caused was the cut on the scrotum. He was also shown a claw hammer (not the one allegedly used by the assailant but one which fitted a description given by the appellant in his statement) and asked if such a waapon could have caused the injuries he had seen on the male body. He said that such a hammer could certainly have caused the injury on the left top of the skull (where there was a rectangular shaped puncture hole); but he felt that the other major injuries could only have been caused by a "doubled clawed" hammer if one of the claws had broken off or worn down so that only one claw struck the body. The pathologist said the same thing about the weapon which could have caused the most serious injuries on the woman deceased. However, he accepted that because of the reservations he had to make about the use of a hammer, it was well possible that such a weapon had not in fact been the cause of the injuries. They were equally consistent with having been inflicted by a weapon such as a chisel.

19. On Madam TSE's body, the pathologist found a stab wound on right side of the head and another on the back of the head. On the face there were 21 stab wounds (some could be described as cut wounds). There was a laceration beneath the right eye. He also found a "curved shelving cut" on the left forehead; another cut wound on the left forehead; another under the chin; a stab wound on the left temple; others on the outer aspect of, and beneath, the left eye. The whole of the left jaw showed a comminuted fracture, with damage to the teeth. He also observed an area of bruising on the left side of the face. There were 4 cuts (three of them superficial) on the neck, and bruising on the chest. And various bruises and abrasions on both arms and hands. The pathologist found, too, that there were cuts on her hands on and between her fingers.

20. In the doctor's view, the penetrating wounds of the skull, with laceration of the brain, had been the cause of death.

21. The pathologist told the jury that the nylon string loosely tied round the neck of each of the victims had nothing to do with their deaths.

22. The same forensic pathologist examined the appellant on the 29th September 1983. He found that he bore a healed scar at the inner aspect of the middle digit of the left middle finger. It was linear, measuring 17 mm. From what he saw, his opinion was that it must have been sustained at least three months before the examination. He did not think the healed wond that he saw could possibly have been caused by natural or false teeth. In answer to a question put by the Foreman of the jury, he said it could have been caused by the glass of broken spectacles.

23. The part-time amah had told the court that the nylon string was a washing line usually kept in the lavatory and strung across the bath to dry clothes on. The rug found in the bath was normally kept in the hall and the large one was not usually where it was found by the police, but in the sitting-room.

24. The police evidence showed that there were traces of blood in the water in the bath and on the carpet in it. A pass book and handkerchieves, also found in the bath, were also bloodstained, as were the towels which were found in the lavatory. The bedroom in which the bodies were lying had the appearance of having been ransacked. There were some bloodstained pieces of clothing on the bed, and other items, and the mattress was also stained with blood, and very wet. It seemed that attempts had been made, unsuccessively, to wash away the blood on the mattress and in the hall.

25. The appellant gave evidence before the jury and spoke of his borrowing $600 from his girl friend so that he could go to Shum Chun on a day's visit in response to a telephone call from his brother. He then recounted what had occurred when he visited his aunt on the 24th January 1983. When she had returned home, they had spoken about his work and their relatives in China and his aunt had mentioned on occasion while she was working in the courts in China and when his father had been denounced by the authorities. They had discussed the matter for some time and the appellant went into considerable detail about what was said by both himself and his aunt. His aunt had then said, in effect that his father had had only his own stupidity to blame for what had happened to him. He had remonstrated with her saying that if she felt sorry about his death she should not say that he had behaved stupidly. By this time they had both raised their voices. Probably as a result of his remarks implying that she had made good her escape and did not care about those she had left behind, his aunt had slapped him in the face. He was very angry and rebuked her and tried to hit her body, but Mr. CHAN caught hold of his arm and tried to push him away. He bit his hand, and his aunt put both her arms round him. Then Mr. CHAN went and fetched a hammer and tried to strike him with it. He wrested the hammer out of his grip and hit him on the side of the head with it.  This blow broke his spectacles. This blow was struck unthinkingly. His aunt then took up a knife and stabbed him on the body with it. He was in pain and swung his arm and knocked the knife out of her hand. The hammer dropped to the floor and he and Mr. CHAN struggled on the sofa. He ran to the door to escape but Mr. CHAN rushed at him with the hammer ,and held him by the neck, telling his wife to telephone the police. There was then a scuffle. One of the deceased had the hammer and the other the knife. He snatched these weapons away from them and hit them, without realising what he was doing, for he had nothing in his mind at the time. He then lost consciousness. When he came to, and realised they were dead, he dragged them into the bedroom and covered their bodies with quilts and sheets. He did not remember where the nylon chord came from or how it came to be wrapped round the victims' necks.

26. His evidence continues that he was afraid and tried to wash the blood away.  He knew his aunt's telephone number book would contain his name and address and so he searched for it. He found his aunt's handbag and his uncle's wallet in the wardrobe, and a pass book. He tore up the two telephone books he had found, and flushed the torn pages down the lavatory. He realised he would need money while he was in hiding and so he took between $1,000 and $2,000 which had been in the handbag and the wallet. He had put some handkerchieves and the pass books into the bath because he was rightened that they might bear his fingerprints.

27. He then took off his bloodstained clothing and put on some of Mr. CHAN's clothes. He put his bloodstained clothing into a plastic bag. He saw the hammer lying on the floor, put into a plastic bag and later threw it into a rubbish bin at the petrol station nearby. He went home with his bloodstaired clothes and threw them out of the window and then realised he had not taken away his shirt and the fruit knife.

28. He then, he said, recalled the debts that he owed ($600 to his girl friend and a similar sum to her brother) and went to their flats to repay them. At the same time his finger was treated. He had thought of returning to China but when he asked his girl friend for his re-entry permit, she had asked why he needed it since he had just visited China and he did not dare tell her the reason. He had then gone into hiding. He had destroyed his own identity card and stolen another man's at a construction site. He was later arrested at the road block.

29. When he began to make his statement to the Detective Station Sergeant he had been very frightened and very tired. The Sergeant did not really understand his dialect when he was firing questions at him. When he continued his statement on the following day, he had become less frightened. He had not taken any weapon with him when he had gone to visit his aunt. Such was the evidence in the case.

30. Mr. Niamatullah, who represented the appellant in the court below, presented his case upon the appeal. He concedes that the summing up was in most respects clear, succinct, and helpful. He does not quarrel with the manner in which the Judge summarized the evidence of the appellant. It may be said that that summary admirably compressed a fairly considerable body of evidence without distorting it in any way while making clear to the jury the salient features of the appellant's story which was, of course, the only source, apart from his cautioned statement, of information giving the details of what was said to have occurred immediately prior to the killing of the elderly couple. Counsel maintains, however, that the Judge was seriously wrong in two respects. Having given his detailed account of the evidence of the appellant the Judge, quite rightly as Counsel concedes, withdrew the issue of self-defence from the jury. He then turned to consider what was, in effect, the only real defence put forward by and on behalf of the appellant. The appellant had never denied that he was the cause of the death of his uncle and his aunt. The only contentions issue in the case was that of provocation. The Judge directed the jury in the following way :

"Provocation is an act done or series of acts done, or words spoken, or both, which caused in the accused a sudden and temporary loss of self-control, and would have caused a reasonable person to lose his self-control, and to behave as the accused did. You therefore have to consider these two questions : did the deceased's conduct cause the defendant to lose his self-control; and if it did, would that conduct have caused a reasonable person to lose his self-control?

Now what is a reasonable person?  A reasonable person so far as provocation is concerned is, as you have been told, a person having the powers of control to be expected of an ordinary person of the age and sex of the defendant, and of the defendant's background and characteristics.

So you will certainly consider the evidence which has been given as to the obvious resentment which the accused had as to the manner of his fathers death in China.

You will therefore take a man of 27 years of age, with that background, the way in which his father had been treated in China, in the situation where he was, arguing with his aunt, an elderly woman. You will consider what she said to him, and what she did; she said that his father was stupid, and she slapped him. And you will consider whether that is such as would - you would expect-to have caused such a man to have lost his self-control and to have reacted in the way that he did.

Of course, "the way he did" must bear a direct relationship to the provocation. If the provocation is very severe provocation, then the manner in which the person provoked reacts may be considerably greater than if the provocation is slight. So you will consider the provocation, if it was offered, that is the words spoken plus the slap. And you will consider the way in which the accused reacted to that provocation, and the way he reacted of course was violent indeed."

31. Under his first head of objection Mr. Niamatullah asks us to say that the Judge in putting the matter in this way has suggested to the jury that, as a principle of law, they must, if they find that the retaliation was disproportionate to the nature of the provocation alleged by the appellant, find against the appellant and convict his of murder. Counsel relies upon the decision of the Court of Appeal (Criminal Division) in R. v. Brown (1972) 56 Cr. App. Rep. 564.  In that case the trial Judge correctly directed the jury that there were two questions for them to consider viz : 1. Did the act complain of in fact the pride of prisoner of his self-control so that he was not the master of his mind; and 2. Were these acts of such a character as would have caused a reasonable person to lose his self-control and to react as the prisoner did. He then proceeded to put a final question to them in these words :

"Finally you have to ask was the reaction proportionate to the provocation?"

The Court of Appeal took the view that this might have had the consequence that the jury would consider this further question as constituting a separate, distinct, and more stringent test than that proposed in the second of the two questions set out above. The Court dismissed the appeal but commented that this manner of putting the question of provocation to the jury was unfortunate. The Court referred to the well-known passage in the speech of Viscount Simon L.C. in Mancini v. D.P.P. (1941) 28 Cr. App. Rep. 65. Where that learned Judge had said :

"In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."

The Court in Brown endorsed the opinion of Lord Diplock in Phillips v. R. (1968) 53 Cr. App. Rep. 132 where the latter had said that it would be

".......... prudent to avoid the use of the precise words of Viscount Simon .......... unless they are used in a context which makes it clear to the jury that this is not a rule of law which they are bound to follow, but merely a consideration which may or may not recommend itself to them."

In Phillips as in Brown the Court, considering the summing up as a whole, dismissed the appeal.

32. Mr. Plowman, for the Crown, maintains that the trial Judge in the present case when he said :

"Of course, 'the way he did' must bear a direct relationship to the provocation",

was not proposing a third and distinct rule since on the previous page he had already told the jury that they had to gonsider two questions :

"Did that the deceased's conduct causad the defendant to lose his self-control; and if it did, would that conduct have caused the reasonable person to lose his self-control?"

Immediately after the passage in the summing up which has already been set out above the Judge repeated this, saying :

"As I say, it is for the Crown to disprove that there was this provocation, to disprove that these two elements were present, that the deceased's conduct caused the defendant to lose his self-control, and that that lost of self-control and the conduct under that was such as would be expected from a reasonable person."

Once again, as in Phillips and in Brown we think the directions read as a whole made the duty of the jury sufficiently plain to them. Nevertheless, in line with what was said in Brown (later reinforced by what was said by Lord Diplock in R. v. Camplin (1978) 2 W.L.R. 679 at page 684) it would be greatly preferable if the question of the proportionality of the retaliation to the alleged provocation was left to the jury in terms that made it quite clear that this was simply a test to which they could resort in deciding whether the reaction was that of a reasonable man.

33. The second objection taken by Mr. Niamatullah, arising from the same passage in the summing up alleges a misdirection upon the evidence.  Mr. Plowman concedes that, although the Judge had dealt in full with the whole range of actions which the appellant alleged as constituting the provocation against him, in dismissing the possibility of self-defence had, nevertheless, when dealing with provocation, appeared to restrict himself to two minor components in that sequence viz : the provocative words spoken by his aunt concerning his father followed at once by her slapping him.

34. We have no doubt that it would have been better if the Judge had, at that point, again reminded the jury of the entire sequence alleged by the appellant which included the words spoken by the aunt followed by her slapping the appellant, followed by her grappling with him and the production of a hammer by her husband with which the appellant was menaced this, in turn, being followed by an assault upon him by the aunt using a knife and the bitting of his finger by the uncle, concluding with a final struggle near the main door where he was trying to get out. Mr. Plowman rightly points out that in any event the allegation of an attack with a knife, involving his being stabbed in the back by his aunt, was quite unsupported by any medical or other testimony which the jury could have accepted. Again, the slight injury upon his finger was, according to the doctor's evidence, something that could not have been caused by a bite. Even minus those items it would however have been advisable to remind the jury once again that the appellant was in effect relying on a concerted and dangerous attack upon him by both of these elderly people.

35. Having regard to the evidence as a whole, and in particular the evidence of the appalling injuries inflicted by this young man upon his elderly relatives; the finding of their bodies in the bedroom without any evidence to show that they had been dragged there; the fact that the defendant removed money from the wallet of the old man and from the handbag of the old lady and then went underground for a considerable period of time, we cannot think that the jury could have formed any different opinion of the defence of provocation even had the Judge directed them as fully as we think might have been desirable.

36. For these reasons we dismissed the appeal at the conclusion of the hearing thereof.