CHEUNG Ka-man v. R.

1992, No.333
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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Nazareth, J.A., giving the Judgment of the Court:

1. Following his trial before Bewley J. and a jury, the applicant was on the 11th August 1992 convicted of the murder of Lam Pui-yu. He now seeks leave to appeal against his conviction. Given the limited compass of those of his grounds of appeal ultimately pursued on his behalf, the facts can be stated shortly in the following way.

2. On the morning of 29th January 1991, the body of 13 1/2 year old Lam Pui-yu was found by her neighbours on the staircase between the 18th and 19th floors of On Hei House, Tuen Mun. Suspicion fell upon the applicant who was her boyfriend. The evidence was that he was very attentive, phoned her every day and went to collect her at the fashion shop where she worked most evenings. He gave her a pager and was described as possessive, jealous and as having shown temper and become agitated when she talked to other boys. Shortly before her death, her affection for him seems to have cooled. Also, whereas she used to go back to her home every night about 11:30 until a week before she died, she then started coming home later and on one night not until 4 a.m.

3. About that time, a second boyfriend Tsang Kwok Chuen, whom she had known in 1988, reappeared on the scene. They met by chance on the 26th January 1991 and then by arrangement on the following day and on the 28th January. On the latter evening she dressed better than she usually did and they went out for a meal and then to a video game centre till about midnight. After that they went on to a karaoke club where she made a telephone call to the applicant. It was not until 2:20 a.m. that Tsang took her home by taxi to On Hei House, where she alighted and he continued on to his home.

4. The police were called next morning when her body was discovered by her neighbours and a number of articles were found on or near the body, but no handbag or means of identification. There was a white scarf with part of it in her mouth and the remainder outside, badly burned. The scientific evidence officer who attended at the scene confirmed what was shown in photographs exhibited, i.e. that almost all the deceased's upper clothing was burnt, her face and mouth were burnt and he described that part of a white scarf that was in her mouth "as a sort of mouth gag". The evidence of the forensic pathologist who carried out the post-mortem examination was that the body was set alight after death. He found deep bruising under an abrasion on the forehead which he said occurred before death and could have been caused by being hit by or against a hard object, including a wall. The gag had been placed between the deceased's teeth before death and would have been inserted with some force, but it was not blocking the airways and did not cause asphyxia. The cause of death in his opinion was mechanical asphyxia, which could have been caused either by manual pressure or the scarf round her neck.

5. On the 29th, at about noon, the applicant telephoned his workmate Leung Ka-sing and told him he was coming to work and wanted his wages paid into Leung's bank account. He then told him he had killed his girlfriend, saying "I got so angry on the impulse of the moment". Half an hour later the defendant arrived at work, but later disappeared and was not seen again until the 26th March, some two months later, when he walked into the Tsuen Wan Police Station accompanied by his parents and his solicitor.

6. He made a cautioned statement which was not challenged. In it he said he did not meet the victim on 28th January after work as usual because he himself was working late, but that he spoke to her on the phone and that she told him she was going out with a friend that evening. At 9 p.m. she phoned him and said she would be back after one o'clock and would phone him later in the evening, but she never did. Nor did she answer the applicant's pager calls which he had given her so that he could keep in touch with her. He got so worried that he went to her home, getting there about 12:15 a.m. and waited for her. She arrived about three hours later, at 3.05 in the morning and he asked her where she had been. The girl said she wanted to talk but because it was cold, they went up to the 18th floor, and there she said she wanted a separation from the applicant. At this, the applicant deliberately cut his hand with a cigarette lighter. The girl told him not to be so silly and cut her own hand in the same way. There then appears in the applicant's statement the following crucial passage which the judge read verbatim in his summing-up :-

"She then said she had done something she felt regretful towards me. I asked her why. She did not say but hesitated. After about ten minutes she told me she had another person outside. I said it did not matter. She said that would not do, no, as she had had sexual relation with him. I was stupefied and thus grabbed her neck with my hands and asked her why. She did not utter a sound. I suddenly saw that her whole face had turned black with blood coming out from her nose and mouth. I then let go of my hand at once and called her, but she did not respond. I pushed her. She did not have any motion. Following that I became stupefied. Then I looked at her, wondering to myself that she did not behave like that formerly. She played me, relying on her beauty. After that I used a cigarette lighter to light her hair. I did not know what I was doing either after lighting her hair. I left after about three or four seconds and I reached the ground floor about a quarter to five. After that I hailed a taxi to go back to Tsuen Wan. I came to know what I did and what the matter was only after I had boarded the taxi."

In answer to a question he said he used his hands to grab her neck and demonstrated that to the police recording officer.

7. Turning then to the application for leave, the perfected grounds of appeal that were not abandoned were as follows :-

1. The learned trial judge erred in law in his summing up by failing to adequately direct the jury as to-

(a) ...

(b) the factors to be taken into account in assessing such defence.

(c) ...

(d) the factors to be taken into account in assessing what weight to be attached to lies, if any, which they found to be contained in the Applicant's cautioned statement.

2. These errors amount to material irregularities and the conviction is accordingly unsafe and unsatisfactory.

8. Mr Graeme Mackay for the applicant, who also appeared for him at the trial, pursued those grounds in the following way. He referred to Broadhurst v. The Queen [1964] AC 441, not in the familiar context of a Broadhurst direction, but to illustrate the framework of his submission. From that indication and his submissions, it is apparent that their main thrust is that the judge went too far in various ways unfavourable to the applicant and that this threw the summing-up out of balance and denied the applicant a fair presentation of the case to the jury. Mr Mackay made it plain that he did not rely upon any single one of the many complaints he had of the summing-up as rendering the conviction unsafe and unsatisfactory, but rather upon their cumulative effect.

9. So far as it is possible to group those many, and it must be said, minor complaints, they seem to be related to rhetorical questions of an unfair or prejudicial nature posed by the judge, unfair mention or comment upon the applicant's omission to mention certain matters, unfair attacks on the credit of the applicant and omissions of mention of matters or evidence favourable to the applicant.

10. Two rhetorical questions were pointed to. First, towards the end of his summing-up, the judge at page 14 said :-

"Now although he had some two months to think about it, the defendant did not tell the whole story in the cautioned statement. He said nothing about the white scarf around her neck or the gag in her mouth or the blow on her head. So what is the explanation for these omissions? She was gagged before she was asphyxiated. And you will ask yourselves how did the defendant's scarf come to be around her neck if he strangled her with his hands? If he had lost his self-control, do you think he would have taken the trouble to gag the girl before killing her?"

Mr Mackay's point related particularly to the white scarf, the significance of the possible use of which to strangle the deceased, he submitted, was of great importance because it suggested some deliberation unlike the spontaneity of the use of hands, not to mention some doubt about the use of the scarf. He complained that such possible use of the scarf did not become apparent until the pathologist volunteered it during the trial, so that the applicant, who did not give evidence, could not have been expected to mention it when making his statement more than a year earlier. Moreover, he submitted, the applicant was never asked about the scarf.

11. The second rhetorical question complained of appears in the following passage, also at page 14 of the summing-up :

"Another matter is this. If he intended to burn her hair because she had tantalised him with her beauty, why then did he not do that? If you look in the photographs you will see that it is largely undamaged except for the singeing at the -- above the forehead, in the front, in this area. So if the defendant is not telling the truth in his cautioned statement about this, you will ask yourselves why he set her on fire."

Mr Mackay submits that the question was unfair in the absence of evidence that hair is inflammable, and that the applicant may well have attempted to set the deceased's hair on fire since some of it was singed. We confess that we find some difficulty in grasping the point of the question, but however that may be, its prejudicial effect, if any, can only have been minimal.

12. As to unfair references and comments, Mr Mackay appeared to present as some of his major complaints, those associated with the white scarf, and we have already mentioned that concerning the rhetorical question about the applicant not having mentioned the white scarf around the deceased's neck. Mr Mackay submits that there is no evidence of the white scarf having been round her neck and that such reference constituted a misdirection of fact which coloured the judge's whole approach.

13. We are not persuaded that there was a misdirection of fact, for there are references to the scarf being round the neck in questions to and answers from both the scientific evidence officer and the pathologist in the record of evidence. However that may be, the photographs exhibited, in our view, clearly show part of the scarf as going round the back of the deceased's neck.

14. Mr Mackay also complains of the references to the "gag" in the summing-up. He submits that the expression is sinister and associated with silencing people. He says the applicant may only have panicked and used the scarf to stem the flow of blood. Putting aside any prejudicial effect of the use of the word "gag", which, it must be said was not an inaccurate description, we were not told how it came to be used or who first used it. But we do observe that the scientific officer used that expression early on in the evidence.

15. As to omissions of matters consistent with or supportive of the applicant's defence of provocation, Mr Mackay submitted that the applicant's accurate description of the deceased's symptoms of death by strangulation pointed to the truth of his statement and should have been mentioned. Likewise he submitted that mention should have been made of the applicant's age of about 17 years at the time. We think, in this respect, that the applicant's age should have been sufficiently apparent to the jury from his appearance.

16. The foregoing does not detail all the individual matters upon which Mr Mackay relied. However, it does embody the more important and sufficiently indicates the minor nature of all. Before turning to address their effect in the overall context of the summing-up, we think the following passage appearing at the end of the summing-up, helpfully illustrates the judge's approach, besides containing some of the matters of which Mr Mackay complained. It followed immediately upon the passage already quoted from page 14 :-

" Now Mr Mackay for the defence asks you to say that the cautioned statement is the truth, that the devastating news of her unfaithfulness was enough to cause this ultra-possessive and jealous young man to lose all control. And he submits also that if the defendant had used the scarf to strangle her, the gag would have had to be removed first. Well, that may depend on the length of the scarf, which cannot be established because it is burnt. Also because of the burning we cannot see how it was tied or fixed around her neck, or if it was tied or fastened at all. But you will ask yourselves what was it doing there anyway. Mr Mackay suggests that the scarf may have been put in her mouth to stop the flow of blood which the doctor confirms would have occurred. But you may think that this hardly explains why it is round the back of her neck, which you can see in the photographs it is.

But Mr Mackay says that even if you believed that he used the scarf and not his hands, this does not rule out the question of provocation, because he submits that no man would have been so stupid as to kill his girlfriend deliberately and revengefully so near her home. Therefore - he says - a sudden loss of self-control is the likely explanation for the killing.

Now members of the jury, it is open to you to take the view that although the defendant has lied about how he killed her, he nevertheless strangled her with a scarf following a sudden loss of self control, as opposed to an act of deliberate retribution for her unfaithfulness or threat to leave him. Do you think that he believed that he would not be believed -- I am sorry, I will read that again. Do you think that he thought that he would not be believed if he told the police the whole truth? And do you think that his subsequent actions and behaviour were motivated by panic rather than by a sense of guilt? If you do, then you must consider if a reasonable person in the same circumstances might have behaved as the defendant did. If the answer to that is yes, then you will find him guilty of manslaughter. But if you answer those questions in the negative, it is open to you to return a verdict of guilty of murder."

Having considered all that was urged upon us on both sides, we are satisfied that in general terms the foregoing passage is succinct and accurate, and in those respects reflects the summing-up as a whole. That is not to say that the summing-up could not have been elaborated in some respects without advantage, or that it was altogether free from some of Mr Mackay's criticisms. But the facts the jury had to address were relatively simple and for the most part not in dispute. Likewise, the main question the jury had to address was a simple one. Although it might usefully have been repeated at the end of the summing-up, it was clearly and satisfactorily put in the following way at page 3 :-

" If you think that on the evidence there is a reasonable possibility that the defendant was provoked and as a result he lost his self-control and thereby behaved as he did and so caused the death of the deceased and, in addition, you thought that in the same circumstances a reasonable person might have lost his self-control and behaved as the defendant did, then what would otherwise be murder is manslaughter."

17. We are not satisfied therefore that the weight of the matters of which the applicant complains threw the summing-up out of balance. We are satisfied that the summing-up as a whole was a fair presentation of the case to the jury. We accordingly refuse leave to appeal.