WONG YILE v. HKSAR

FAMC No. 17 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 17 OF 1999 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 487 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Ching PJ:

1. The applicant was convicted by a jury on two counts. The first was one of robbery while the other was of murder. He applied to the Court of Appeal for leave to appeal against the conviction for murder but this was refused. He now applies to this Committee, out of time, for leave to appeal to the Court of Final Appeal on the ground that a grave and substantial injustice has been done. We need not go into the reasons why this application has been made out of time. The facts put before us would justify an extension subject to the applicant demonstrating that he has an arguable case.

2. The applicant is an illegal immigrant. On the day in question he was, on his evidence, looking for a place to sleep. He entered an uncompleted building in a construction site and eventually found his way to a unit on the third floor which was being used as the site foreman's office. It had what was described as a bedroom and a sitting room used as an office. The deceased was an odd-job worker who slept in the bedroom. He was described as a 'mute' by fellow workers because he suffered difficulties both in hearing and in speech. He was described as a man who seldom spoke. He was found, still alive, when the other workmen came to work in the morning. He was lying on the floor of the bedroom, that room showing no signs of a violent struggle. There were also no signs of a violent struggle in the sitting room but there was a great deal of blood in the sitting room which was identified as being that of the deceased. It was probably caused by the deceased staggering around the room after the applicant had left. He was still alive when found but succumbed to head injuries two days later.

3. It is in the nature of the events that there is no witness, other than the applicant, so say what actually happened. There is no doubt, however, that the deceased was killed by the applicant. According to him he was attracted to the unit because he saw a light in one of its rooms. When he went in he saw the deceased asleep in the bedroom and told him that he was only looking for a place to sleep. He offered a cigarette to the deceased, they smoked together and they had a conversation in which they talked about a lot of things. He described the deceased as being naked when he first saw him in a statement to the police but in evidence said that he was wearing a sweatshirt and pants. At one stage in the conversation he noticed a pair of trousers and handed them to the deceased but, presumably because the deceased thought that he was trying to steal the wallet in one of the pockets, the deceased attacked him and there was a tussle on the bed. The applicant eventually broke off the engagement and walked towards the sitting room but the deceased took up a hammer and attacked him with it at or about the doorway between the two rooms. There was a fight. The applicant took up a wooden off-cut and hit the deceased on the head. The deceased fell to the floor and caught him by the legs. The applicant continued to hit him on the head with the off-cut until he let go. He then took the wallet and made his escape.

4. It will never be known which of the blows or whether it was some or all of them that cumulatively caused the injuries from which he died. The applicant identified the off-cut, which was produced in court, and the evidence of the forensic pathologist was that the injuries were consistent with the deceased having been struck with the broad side of it. That evidence was also, in brief, that the blows would have been fairly solid, later corrected to be very solid. In his summing-up to the jury the Judge dealt comprehensively with self-defence and, although it was not raised, with provocation. There is no complaint made on the content of these directions. The complaints made to the Court of Appeal and repeated here are based on criticisms of the way the Judge dealt with the alternative verdict of manslaughter for want of an intention to kill or to cause grievous bodily harm.

5. The first ground alleges two specific failures on the part of the Judge in relation to two factual matters. One was that a cigarette butt, bearing the deceased's DNA, was found upon the bed but that there could have been another which the police had neither preserved nor tested. The failure to notice a second butt was not dealt with in the summing-up and it was said by the Court of Appeal to have been of peripheral significance. Counsel urges that it was always an important point supporting the applicant's case as showing that the scene was initially peaceful, the two men having smoked together. Counsel refers to a paragraph in the judgment of the Court of Appeal which begins with the sentence,

"The essence of the defence at trial was that, having climbed into the premises in search of somewhere to sleep and having encountered the victim, he offered a cigarette to the victim and smoked one himself."

Counsel says that the smoking of a cigarette together, having been described as part of the essence of the defence, the Court of Appeal was illogical in not going on to consider what effect a proper reminder would have had on the jury. We cannot agree. Clearly, the paragraph in question read as a whole shows that the Court of Appeal was briefly describing the defence as a whole. Nor can we agree that the smoking of cigarettes together is of any significance. The initial phase of the encounter could well have been peaceful notwithstanding the difficulties of the deceased in hearing and in speech and notwithstanding that neither man spoke the dialect of the other. Other than to a very minimal extent, the evidence is not significant as to whether an intention to kill or to cause really serious harm arose thereafter.

6. Counsel goes on to complain that the Court of Appeal added that if it had occurred to counsel that so important a point had been omitted he would have been at liberty to apply to the Judge to include it. Counsel says that the fact that he did not so apply is irrelevant and should not have absolved the judge or the Court of Appeal accurately and logically assessing the point. There is nothing to this complaint. The evidence in question was, as said by the Court of Appeal, of peripheral significance.

7. The second ground put forward is that the summing-up was unbalanced in that too much was said as to provocation when the facts did not require any such direction and too little was said as to the defence to murder that there was no intention to kill or to cause grievous bodily harm. We note that the applicant does not appear to have denied any intention of causing grievous bodily harm although he denied an intention to kill. So far as provocation is concerned, it was a matter of judgment for the trial Judge whether to give those directions. The complaint here is not that the directions in themselves, whether in relation to provocation, self-defence or lack of the requisite intention, were wrong. What is said is that in considering the last of these the jury may have been swamped by the directions on the other two. If such a ground can ever succeed the burden must be a very high one taking into account the summing-up as a whole. Early in his summing-up the Judge gave a clear and concise definition of murder as requiring the intention to kill or to cause grievous bodily harm. He then went extensively through the evidence pointing out a number of factors in favour of the applicant together with provocation and self-defence and he said,

"Now, manslaughter is unlawful killing, without the intention to kill or cause serious bodily injury. The intention that is required for murder is not required for manslaughter. It is unlawful killing, but without that kind of intention."

Shortly thereafter, he said,

"If you are satisfied that he was provoked or if you think that he may have been provoked, then you can convict him of manslaughter; and of course, the other basis for finding manslaughter will be lack of intention to cause death or serious bodily injury, as he has maintained throughout that he did not have the intention to kill."

We agree with the Court of Appeal that it is difficult to see how the jury could have been confused or left in any doubt having regard to these directions. Counsel relies upon R. v. Cambridge (1994) 99 Cr. App. R. 142 for the proposition that a combination of over emphasis and misdirection may fatally compromise the defence. The decision is not authority for such a proposition, if any were needed. Counsel has pointed to a passage in which the Judge clearly lost his way and said so, having realised it, and then immediately corrected himself. This does not assist. It would need an extreme case to show that the jury may have been swamped by other directions. This is not one of them.

8. The last ground argued is that the jury's conviction was by a majority of five to two and having regard to the evidence and factors in favour of the applicant a conviction by that sort of majority must leave a lurking doubt. This is not an appeal based upon on alleged perversity of the verdict nor yet is it an appeal on the grounds that there was no evidence upon which the jury could have convicted. It is not possible to understand how the fact that a verdict is by majority can contribute towards any finding that that verdict is unsafe or unsatisfactory.

9. None of the matters argued are sufficient to ground an argument that a grave and substantial injustice has been done or that there is any other reason to think that there may be other ground to allow an appeal. This application is dismissed.