HKSAR v. LAU BO-KI

CACC 412/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 412 OF 2005

(ON APPEAL FROM HCCC NO. 19 of 2005)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.  On 10 July 2004, an 87-year-old lady, Suen Lai-hing (the deceased), died as a result of chemical burns and the complications which arose from them.  The appellant was alleged to have caused the burns by his use of sulphuric acid at about 1.30 pm on 2 June 2004.  This occurred at the deceased’s flat on the 34^th floor of Po Wu House, Po Pui Court in Kwun Tong which was also occupied by her son-in-law, Wong Kwok-chu.  On that particular day, Wong Kwok-chu had been visiting the Mainland.

2.  The evidence against the appellant was wholly circumstantial.  The prosecution were additionally able to provide a motive for the attack in that the appellant was supposed to be collecting a debt owed by Wong Kwok-chu to Wong Wing-chu (PW9) but Wong Kwok-chu was proving to be somewhat elusive.  The prosecution alleged that, as part of a process of intimidation which included two previous visits to the flat when he had seen the deceased, the appellant used sulphuric acid in an attempt to force Wong Kwok-chu to repay his debt.

3.  The appellant was convicted by a jury on 14 September 2005 of murder.  This followed a trial before Beeson J.  He sought leave to appeal against his conviction although Mr Oderberg, on the appellant’s behalf, has realistically accepted throughout that, in the event that his submissions met with success, a manslaughter verdict would inevitably have to be substituted.  In such circumstances, we do not have to be concerned with much of the smaller, but highly significant, detail in the case which was before the jury to establish the appellant’s presence at the front door of the deceased’s flat where, one way or another, the sulphuric acid was deliberately deposited.

4.  At trial, the appellant’s presence at the deceased’s flat was denied, albeit he elected not to give evidence.  The jury’s verdict plainly indicates that they rejected the defence contention that the prosecution were unable to establish his presence outside the deceased’s flat, at Room 3407, at the material time.  It suffices, for present purposes, to say that there was a wealth of convincing evidence to show that the appellant was the killer.  This included a closed-circuit television (CCTV) film taken on 2 June 2004 showing the appellant holding a container as he took the lift to the 35^th floor at about 1.29 pm and re-entering the same lift about five minutes later.  The lift giving direct access to the 34^th floor was out of order on that day.

The facts

5.  The prosecution’s case, in short, was that the appellant had thrown a small amount of acid at the deceased and had poured a large enough quantity of acid into her flat to have created a slippery area.  The deceased had then fallen down onto her right side causing two bone fractures and acid burns to about 20 percent of her body.  Consistent with the allegation that acid had been thrown at the deceased while she was in a standing position, the forensic pathologist, Dr Poon Wai-ming, found burn marks in the shape of “scattered small spots” to the eye, to the face and to an area in front of the ear all of which were on her right side.

6.  The flat itself was protected by a metal grille security gate which, although unlocked, was closed when the deceased was discovered.  Behind this, the front door was wide open.  The deceased was found at about 4.00 pm by neighbours.  She was lying on a wet and apparently slippery floor with her head against the metal grille.  She was able to give coherent instructions about how to open the grille.  Soon afterwards, an ambulanceman, who had been called to the scene at 4.32 pm and who arrived at the flat at about 4.45 pm, placed newspapers over the liquid on the floor to make it less slippery.  He thought the liquid was a corrosive fluid but no one was unable to find a container from which it might have come.  Curiously, having regard to all the circumstances, the police were not called at that stage.

7.  The deceased was taken to the United Christian Hospital where Dr Ng Hon-wah examined her.  He said that the acid which had caused the burns was strong and, by the time he saw her, the deceased was already suffering from chemical pneumonitis which showed that there had been prolonged contact with the acid.  Bearing in mind that the appellant had been observed at about 1.29 pm inside Po Wu House and that the deceased was taken from her flat over three hours later, Dr Ng was asked how long the deceased’s contact with the acid might have been.  He said that what he saw was consistent with exposure to the acid for a period of about 3 to 3½ hours.

8.  Subsequently, the deceased was transferred to the Prince of Wales Hospital.  There, Dr Wong described the burns he saw as having resulted from long exposure to acid.  His estimate was 3½ to 4 hours although he stated that it could have been for as little as 30 minutes.

9.  From the extent of the deceased’s terrible injuries, mainly on the right side of her body, the prosecution were strongly placed to suggest that most of the sulphuric acid had been deposited inside the deceased’s flat although in due course traces of acid were discovered in the region of the doormat on the outside.  However, as foul play was unfortunately not suspected when the deceased was originally found, members of her family had cleaned up the flat before the police became involved some days later.

10.  A scientific officer, Mr Mak, attended the scene on 7 June 2004.  He found acid staining low down on the outside face of the front door as well as marks left by acid stains on some of the lower metal bars to the metal grille.

11.  Mr Mak’s evidence was heavily relied upon by the defence to reinforce their contention that the deceased, whose full height was 157 centimetres, had not been splashed across her face with acid when she was in a standing position.  No acid stains, corresponding with anywhere near that height, had been found on the front door or the metal grille.  Instead, the defence suggested that the acid had in fact been poured downwards through the metal grille bars and had then seeped into the flat under the front door.  The defence also contended that when the deceased fell over, it was highly probable that this was because she had slipped.  In doing so, it was suggested that the deceased may have received the burn injuries to small areas on the right side of her face from splashes of acid after she had made contact with the ground.  We shall turn later to the evidence given on this aspect of the case by Dr Poon, the pathologist who conducted the post-mortem, but it suffices at this stage to say that he did not reject this possibility.

12.  Turning to other aspects of the evidence, Wong Kwok-chu gave evidence, disputed by the defence, that on 2 June 2004 at about 5.00 or 6.00 pm, the appellant had left a message on his mobile telephone to say that his mother-in-law had “fainted”.  Following this, between 2 June 2004 and 8 June 2004, Wong Kwok-chu stored the messages he received from the appellant.  These were obviously designed to maintain the pressure on him to repay his debt to PW9.  Indeed, it was Wong Kwok-chu’s suspicion that the appellant may have been involved in the deceased’s death which eventually led to a report being made to the police.  In the helpful summary of these telephone messages, prepared by Mr Saw SC and Ms Memi Ng for the respondent, the appellant is recorded, on various occasions, as saying amongst other things:

“Even if you don’t have the money, you’ve got to come out for a talk …. Turning away is getting you nowhere.  Huh my name is Wong Ki.  (My) Phone 60300631

……

By doing this you will only make life bitter for yourself …..  The consequence will turn out to be very serious if you do this.

……

You have provoked others and you will be in great trouble.

……

Sooner or later when you’ve thrown into dire bloody hot waters, you’ll have to bear the consequence yourself.”

13.  On 8 June 2004, in a telephone conversation recorded by the police, Wong Kwok-chu said:

“My mother-in-law has been admitted to hospital.”

The appellant’s reply to this was:

“Your mother-in-law, I know.”

14.  In a video-recorded interview after his arrest, the appellant made admissions to the police about going to the deceased’s flat but he denied having done so on any occasion after 28 or 29 May 2004.  He also denied telling Wong Kwok-chu that the deceased had fainted.

15.  The appellant was later shown the CCTV tapes taken in the lift on 2 June 2004.  He then, for the first time, admitted going to the building on that day, stating that he had received a telephone call from Macau on 2 June 2004 to collect a debt from a “Mr Cheung” at Room 3505.  However, the occupants of that flat gave evidence which established that no one by the name of “Cheung” lived there and his account was also contradicted by telephone records.

Grounds of appeal

16.  Mr Oderberg, who did not appear in the court below, advanced three grounds of appeal which are so closely linked that we can conveniently deal with these together.  Briefly, these make the complaint that:

(1) the judge should have acceded to a submission of no case to answer on the count of murder;

(2) the judge should have ruled that there was insufficient evidence to go before the jury of an intention on the part of the appellant to kill or to cause really serious bodily harm; and

(3) the judge should have ruled that the evidence of the injuries to the deceased and the damage to her flat were inconsistent with a murderous intent.

17.  We can indicate, in the light of these grounds and the argument in support of them, that we shall grant leave to appeal.  We have, therefore,  treated the hearing as the appeal.

18.  When trial defence counsel made a ‘no case’ submission, he sensibly confined this to the murder allegation, accepting that the evidence in overall terms provided a proper foundation for manslaughter.  The basis of his submission was that even accepting that a prima facie case of manslaughter had been established, there was no evidence on which murder could safely be left to the jury.  He submitted, amongst other things:

“… Here, I say, there is no evidence of intent to cause grievous bodily harm which is a material element to bring a charge of murder home. … (Appeal bundle p. 662)

……

The matters I rely on so far as the circumstantial evidence is concerned is this.  In so far as concerns Dr Poon, the forensic pathologist, your Ladyship will recall that, in his evidence-in-chief, he said that taking the area of the serious burns together with the fractures, the most likely explanation is that she fell on a hard surface on the right side of her body. … (Appeal bundle p. 663)

……

… there is simply no evidence from the findings of Dr Mak [the scientific officer] to suggest that acid was thrown or splashed against the face of Madam Suen.  And if that be right, the only inference one could draw was that such splashing that she - - that’s suggested by the spot marks upon her face, and indeed the right side of her torso – because as Dr Poon said, she fell on her right side, there can be no question about that – in my submission raises the overwhelming inference that the burn marks that Madam Suen received were received after she had slipped and fallen. … (Appeal bundle p. 666)

… What I’m saying is that there is an overwhelming inference to be drawn from the circumstantial evidence that no acid was splashed or thrown at Madam Suen; that acid leaked into the flat; she slipped on that acid; she fell; and her injuries were caused after she had fallen onto the floor with acid on it.

If that’s a proper inference to draw, then, in my respectful submission, the prosecution - - it would not be safe to leave the murder count to the jury.  They could not draw an inference from the evidence that acid had been splashed against Madam Suen or thrown at her.  And if that be the case, then in my respectful submission, the murder count, for all the reasons I have suggested, should not be left to the jury.” (Appeal bundle pp. 666-667)

19.  Trial counsel was correct in saying, about a feature of the case which Mr Oderberg has emphasised is the crucial aspect in the present proceedings, that there had been no positive evidence that the appellant had thrown sulphuric acid at the deceased.  Yet it was this assertion on which the prosecution had relied to establish the intent for murder.  Dr Poon, the pathologist, had agreed in cross-examination that the marks which were scattered in spots over the deceased’s face were consistent with the effect of splashing assuming the deceased had fallen into a pool of fluid.  In re-examination, when asked if the splash marks on the deceased’s face were (also) consistent with acid being thrown at the deceased, Dr Poon had replied: “It could have been caused by such a mechanism.”  There was, in other words, no evidence one way or the other that some of the acid had been thrown at the deceased.  The ‘splash’ burns on various parts of her face could equally have occurred when she fell to the ground assuming, of course, that the sulphuric acid was by that stage already there.

20.  When giving directions to the jury on murder, the judge said:

“The important matter in this case is the intent to kill or cause grievous bodily harm.  That must exist at the time of the killing or of the act or acts which caused the death; in other words, at the time the acid was thrown over Madam Suen.  You must be sure that the accused intended to kill or to do serious bodily harm to the deceased.  You should look at the actions of the accused before, at the time of and after the killing, because they may shed light on the intention of the accused at the critical time.” (Appeal bundle p. 19) (Emphasis added.)

21.  The judge went on to point out that the evidence, if the jury accepted it, seemed to “indicate premeditation”.  She then distinguished motive from intention and continued by saying:

“There are two ways in which an act can be intentional. The first occurs where it is the purpose of the person performing the act to cause that particular result.  The second instance is where a result can be intended, although it is not the purpose of the person acting to cause such result, when the result is an almost certain consequence of that act, and the person performing the act knows that the result is a virtually certain consequence of the act.  You will have to look at that in the context of somebody throwing sulphuric acid over an elderly lady.

So in this case, if you find that the accused did foresee the prohibited consequence – for example, death or serious bodily harm as being almost certain – you should then go on to consider whether or not he intended that particular consequence.  If you found that the accused had thrown or splashed sulphuric acid on Madam Suen, you will probably find little difficulty in being sure that, at the time he did so, he could foresee almost certainly that death or serious bodily harm would be the result of that action.  If that was the case, you would go on to consider whether or not he actually intended that particular consequence; that is to cause death or serious bodily harm.

You are not entitled to find the existence of the necessary intention unless you are sure that death or serious bodily harm was a virtual certainty, barring some unforeseen intervention by other people or as a result of the accused’s action; and that the accused understood that that was the case.  The decision about intention is a matter for you alone on your consideration of the whole of the evidence.  So when you are looking at the evidence, bear that in mind.” (Appeal bundle pp. 20-21) (Emphasis added.)

22.  Neither in the passages we have cited nor elsewhere in the summing up, when dealing with how inferences might properly be drawn or when reminding the jury of Dr Poon’s evidence, was it made clear to the jury that there was no evidence on which they could safely rely that the deceased had been deliberately splashed across her face with sulphuric acid.  Yet, as we have said, it was this allegation which was the basis of the allegation of murder.  Indeed, defence counsel had addressed this very point in his final address to the jury when he said:

“Now, members of the jury, the essence … of the prosecution’s allegations is that it was the defendant who either threw or splashed Madam Suen with acid to her face.  And that raises an important matter.  As you’ve been told, for you to convict of murder, you have to be sure that the assailant, whoever that might have been, had to have splashed or thrown acid into Madam Suen’s face.  Nothing less will do.  Nothing less will do because it is an essential element of the crime of murder that the assailant had to have the intent, that is to say the intent to cause some serious bodily harm to Madam Suen.  Nothing less will do.

……

And that’s why … these photographs that you’ve got of Po Wu [House] and the evidence that you heard from Dr Poon, the Forensic Pathologist, and Mr Mak, the Scientific Evidence Officer, are extremely important in this case.  Because I say that, taken together, they paint a picture of acid being splashed around the outside of the metal grille, of acid leaking into the inside of the premises, of Madam Suen slipping in what, on any view, was a slippery surface, and falling, breaking, as you’ve heard, two bones.” (Appeal bundle p. 671)

23.  Towards the end of the summing up, the judge reminded the jury of counsel’s comments, saying:

“It was suggested that the essence of the prosecution case is that the assailant threw or splashed acid into the victim’s face; and that if the acid was just splashed outside the door, it would not be possible to show any intent to harm Madam Suen.  You have album C which has been referred to, and the photographs that are relevant in particular C5, 6, 7 and 9, as to where the splash marks of the acid were.” (Appeal bundle p. 76)

The judge did not then go on to say that if the prosecution’s allegation of a deliberate splashing of acid to the deceased’s face had not been made out, the count of murder would fail.  However, as we have already indicated, there was in any event no sufficient evidence on which the jury could safely have decided that the appellant had acted in this way.

24.  Accordingly, we have concluded that these grounds of appeal have been made out.

25.  There was a further ground which was concerned with the directions given to the jury about the lies told by the appellant in the course of his interviews.  We do not now need to concern ourselves with this but, had we needed to do so, we can indicate that this would not have been viewed with any favour.

Conclusion

26.  The appeal is allowed, the conviction for murder is quashed and the sentence is set aside.  However, the jury’s verdict provides the clearest indication that they were satisfied that it was the appellant whose actions were responsible for the acid finding its way onto the deceased’s body.  We shall, therefore, substitute a conviction for manslaughter.

27.  This leaves the question of sentence which will have to be determined in due course.  Meanwhile, the appellant is remanded in custody.