HKSAR v. TSE KHIU HING

CACC 529/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 529 OF 1999

(ON APPEAL FROM HCCC 93 OF 1999)

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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):

1. On 27 September 1999, following a trial in the Court of First Instance before Gall J and a jury, the Applicant was convicted of murder. He now seeks leave to appeal against conviction.

2. It was not an issue at trial that the Applicant had killed the victim on 30 October 1998 in a storeroom at the Golden Giant Restaurant at level UG1 in the Venice Garden Shopping Centre in Leung Tak Street, Tuen Mun. His defence to the charge was that he had acted in self-defence and that some of the numerous injuries he inflicted on the victim were accidental and done in the course of self-defence. The judge also left the alternative offence of manslaughter for the consideration of the jury.

3. The prosecution's case was that the Applicant had attacked and killed the victim, who worked at the premises where he died, between 9.00 and 10.00 a.m. The victim had received terrible injuries to his head, face and neck which were inflicted by a combination of a large paper cutter and some heavy object. The pathologist discovered three fractures of the skull caused by the latter and numerous cuts to the face and neck caused by the former. Both forms of injury could have led to death through bleeding and he was unable to say which had done so. One of the cuts had severed the jugular vein.

4. The Applicant admitted in his evidence having caused all the injuries. However, his defence did not accord with the account he had given to the police in his interviews. In these, he had candidly admitted having taken the cutter to the restaurant premises in order to obtain a $1,000 loan from the victim whom he had known for a short while when he himself had worked there some time before. He said that he had picked up the cutter from the street and had taken it with him because, as he said in one of his interviews, he was "thinking of using it to threaten (the victim) if he refused to lend me money." He went on to say that the victim had resisted and "alas, I thought of going ahead without minding the consequences". At an earlier stage of that interview, the Applicant had said that he pointed the cutter at the victim's neck after he refused to lend him money and that he told him that if he did not lend the money he would "poke" him to death. The Applicant then explained how he closed the door behind him and "jabbed" the victim. They fell on the floor and scuffled, during which time the Applicant said that he hit the victim two or three times on the head with a teapot. The victim tried to open the door but he stopped him from doing so. After that, the Applicant got a mixing bowl with which to hit the victim on the head and he did so four or five times until the victim lay motionless.

5. The Applicant then went on to explain how he had taken the victim's gold bracelet, necklace and Rolex watch. He then washed himself in premises which were nearby and went to purchase a fresh set of clothes, before setting off to a pawnbroker's shop. He pawned the victim's Rolex for $5,000 using his own identity card. He then went on to a goldsmiths' shop to have the two gold chains melted down where he appears to have received a further $5,100 for the gold. Finally, in his interviews, dealing with the rest of the events of that day, he explained that he had burnt the receipts that he had received from the shops in order to avoid "alerting" his family. He then went off to play mahjong.

6. Plainly, nowhere in the Applicant's interviews did he at any stage raise self-defence. The first evidence on this issue came from the Applicant when he stated in evidence during the trial that it was the victim who had thrown the first blow. The Applicant went on to give to the jury an account, which they clearly rejected, which was very much at odds with what he had admitted to the police. He also said that he had been intimidated by the police to such an extent that he had been unable to say anything favourable about himself when he was being interviewed.

7. The Applicant was ten years younger than the victim and he was also taller and heavier than the victim. In short, the Applicant, while armed with a large cutting instrument, was alleged to have paid an unannounced call on an unarmed man he barely knew, who wore high-value gold items. Not surprisingly, the victim objected to making a loan in these circumstances, whereupon the Applicant brutally attacked him with the cutter and a heavy object until the victim lay motionless and dying on the ground, unable to put up any resistance against the Applicant who was stealing his valuables.

8. The judge found it necessary to leave the alternative of manslaughter to the jury in the event that the jury were not sure that the intent for murder had been made out. If self-defence failed, it is hard to imagine that a verdict short of murder was conceivable, having regard to the catalogue of extremely serious injuries inflicted upon the victim. The judge, however, did leave manslaughter, and it is his direction to the jury in this regard which has led to the single ground of appeal advanced by Mr Fenton on the Applicant's behalf.

9. Mr Fenton, who also represented the Applicant in the court below, submitted that the judge misdirected the jury when dealing with the alternative of manslaughter by reversing the burden and standard of proof in a passage at page 20 line D of the summing up in the Appeal Bundle which reads:

"But that is an option that you would only consider if you were sure that the accused had no intention to kill or cause really serious harm, and you were sure that he was not acting in lawful self-defence."

10. Mr Fenton contended that the proper direction to the jury should have been that they should consider manslaughter only if they had a reasonable doubt or were not sure of the Applicant's intention to kill or to cause really serious harm.

11. Mr Fenton is of course right, in this limited context, to say that the judge's direction was to an extent in error, but how far that takes the matter has to be seen in its wider context rather than by merely looking at the phrase about which complaint is made in isolation.

12. The judge's directions as to manslaughter, which Mr Fenton accepts were impeccable, were as follows (taken from page 19 of the bundle at line Q):

"There is another verdict which is available to you, as Mr Fenton set out, and that is one of manslaughter. If you are not sure that the accused intended to kill the deceased or cause him really serious harm, but you were sure that he was not acting in lawful self-defence, then you must consider whether the accused did an act which created a serious risk of causing death, that that risk would have been obvious to any reasonable, prudent person, and that the accused, when he did the act, either gave no thought to the possibility of there being such a risk, or knew that some risk of causing death was involved, and nonetheless went on to do it."

There then followed the passage about which this application is concerned which I shall quote again:

"But that is an option that you would only consider if you were sure that the accused had no intention to kill or cause really serious harm, and you were sure that he was not acting in lawful self-defence."

Just a little later, at page 21E, the judge went on to say this:

"If his evidence could be true or may be true, is possibly true, then you will have a doubt in respect of the case for the prosecution and you will acquit him. It is only if you are sure that he is guilty of murder, that you will convict him of murder, or, if you are not sure he is guilty of murder, you are sure he is guilty of manslaughter as I have defined it, that you will find him guilty of manslaughter."

13. It is apparent that the judge's most unfortunate error, which we are bound to say we think was a slip of the tongue, was not present in the directions which were given both before and after it, as to the jury's approach to manslaughter.

14. Mr Fenton's argument was that the alternative of manslaughter had, as an option open to the jury, been narrowed to such an extent that the Applicant had been deprived of the right to have this lesser charge considered fairly by the jury. We cannot agree with that submission. The error was, when set in its full context, a very minor one. The burden and the standard of proof had been fully explained to the jury in immaculate terms earlier on in the summing up. Amongst other directions given to the jury, aside from the standard directions about the burden and standard of proof, there were a number of other relevant passages which have been helpfully itemised by Mr Saw, SC on behalf of the Respondent. At page 3, the judge said:

"... he is not proving anything, he has nothing to prove here. There is no onus upon him."

At page 6 the judge continued:

"This case, as far as your decision is concerned, is going to rest a great deal upon the intention of the accused. You see, he does not deny killing the deceased so your decision is narrowed quite considerably ..... What you are going to have to decide is, at the time he killed him what was his intention, what can you be sure is his intention ..........."

Later at page 6 line S, the judge went on to say :

"There is an accusation made by the prosecution, and it is for the prosecution to prove his guilt. He does not have to prove his innocence. He does not have to defend himself."

And then at page 7 line O:

"In this case it is particularly important to remember that the accused has to prove nothing because he has raised an issue of self-defence. He said at one point that he acted in self-defence, and at another that the cuts to the neck and head of the deceased were accidental. It is not for him to prove that he lawfully defended himself."

And at page 8 line A:

"It is for the prosecution to prove that he was not lawfully defending himself and that the cuts were not accidental and the prosecution must prove beyond reasonable doubt, also, that you are sure that he intended to kill or cause serious harm."

15. The jury in these passages had been told repeatedly, and other examples follow those passages, that they could only convict of murder if they were sure beyond reasonable doubt that the prosecution had proved murder. Obviously manslaughter could not arise if murder had been established. It was a lesser alternative charge and that was made abundantly plain to the jury.

16. We are satisfied that the jury could have been in no doubt that they should only consider manslaughter if they decided that murder had not been made out to their satisfaction. In our view, unfortunate though the judge's error was, this error was not a material one. Throughout the summing up, the judge had been at pains to emphasise that there was no burden upon the Applicant, and that it was for the prosecution to disprove what the defendant had said.

17. Accordingly, we cannot say that there has been a ground put before us on which we should grant leave and the application is dismissed.