HKSAR v. LING KAM-WAH

CACC 88/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 88 OF 2001

(ON APPEAL FROM HCCC 179 OF 2000)

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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):

Introduction

1. On 15 February 2001, following a trial before Lugar-Mawson J and a jury, the Applicant was acquitted of murder but convicted of manslaughter by reason of provocation. It was alleged that on 1 February 2000 the Applicant had killed his common law wife, Ho Wai-chun (the deceased), at his home address in the presence of his son.

2. The Applicant was sentenced to twelve years' imprisonment on 2 March 2001. He now seeks leave to appeal against conviction.

Grounds of appeal

3. There are two grounds of appeal.

4. Mr. Raffell, who also appeared on behalf of the Applicant at trial, firstly submitted that the judge had fallen into error by holding that there was a case for the Applicant to answer at the close of the evidence called by the prosecution. Whilst Mr Raffell conceded that there was evidence from the Applicant's son that the Applicant had killed the deceased, this was, he argued, so tenuous, self-contradictory and inconsistent in nature that it was not, taken at its highest, such that a jury could properly convict upon it.

5. Mr Raffell's alternative submission was that, although proper directions in law and a balanced summary of the facts had been given to the jury, the verdict, when viewed objectively, was unsafe and unsatisfactory and should not be allowed to stand.

6. In the light of these grounds, a relatively detailed review of the evidence is necessary.

Overview of prosecution evidence

7. The case presented against the Applicant was wholly dependent, so far as it related to the issue of guilt, on the evidence given by the Applicant's son, Ling Sui-tong (PW1). He was sixteen years old when he was called to testify at the trial. He was only fifteen at the time of the killing. What he said amounted to an eye-witness account of how, on 1 February 2000, he had seen and heard his father arguing with his mother over money in the bedroom of their small flat in Mongkok measuring a mere 7 metres in length and 1.71 metres in width.

8. From time to time, PW1 would watch, through the open bedroom door, what his parents were doing. At one point, he saw the Applicant slap the deceased on the face. She retaliated by giving the Applicant a kick. PW1 estimated, at one stage of his evidence, that the argument lasted about 15 minutes before he heard the deceased saying: "It hurts". A little later the deceased told the Applicant "not to play". In an apparent reference to money, PW1 said that he then heard the deceased say she would give it. She then repeated: "It hurts" and a few seconds later she said: "You will regret". PW1 looked up from where he was practising on a typewriter in the adjoining room. He alleged that he saw the Applicant, whose back was towards himself, "throw his arm" around the deceased's neck.

9. Soon afterwards, the deceased fell to the floor and was motionless on her left side, facing the wall. The Applicant, according to PW1, then began to mess up the flat by taking various things out of drawers and leaving them lying around untidily. The Applicant also tied the deceased's wrists and ankles with pieces of electrical wire.

10. PW1 said that after the Applicant had left the flat in a state which might superficially have resembled the scene of a robbery committed by an intruder, and before he departed, the Applicant smoked a cigarette and told him not to inform the police about the fight between himself and the deceased.

11. PW1 said that after the Applicant had gone, he (PW1) went up to the deceased's body and felt for signs of breathing. There were none. He said that he had not previously gone into the bedroom where the fight had happened because he was afraid that his father might kill him as well.

12. PW1 then described how his grandfather arrived at the flat about 15 minutes later. PW1 prevented his grandfather from coming into the flat because he did not want him to get worried. He went downstairs with his grandfather to telephone the Applicant's mobile number to tell the Applicant that the deceased, his mother, was dead. This was done in his grandfather's presence although he was described by PW1 as having hearing difficulties. PW1 said that the Applicant told him over the telephone to ignore what had happened and not to be scared as it was not him (PW1) who had killed the deceased.

13. PW1 then asked for $20 from his grandfather which he was given. He returned home briefly before going to meet a fourteen-year-old girl he knew as 'Cat' (PW6). During the time he was with Cat, he also saw his social worker. PW1 never once mentioned the killing of his mother to either of them.

14. When PW1 eventually returned home at about 10.00 p.m., in response to a call from his father to do so, the press and the police were there. He noticed his mother's body was in a different position on the floor to the way in which it had been positioned when he had last seen it. This time, instead of lying on its side, the body lay face up as shown in some of the exhibited photographs. He also noticed that the wrists and ankles were no longer tied.

15. In due course, PW1 provided the police with a total of five statements. The jury were given edited versions of four of these to enable them to follow the cross-examination about a host of lies and inconsistencies which the prosecution had to concede were contained within those statements. Importantly also, PW1 was extensively cross-examined about a number of unusual aspects regarding his actions and behaviour at the time of the killing and in the hours immediately afterwards before he was interviewed by police.

16. One line of inquiry, which was developed in cross-examination, was concerned with PW1's total inactivity when he found himself witnessing his mother being killed by his father. His explanation was that he was very frightened at the time and did not know what to do.

17. Other curious features about PW1's evidence which were highlighted included, by way of examples, the fact that he had led his grandfather away from the flat without assistance being sought from him; his failure to say anything to Cat or the social worker describing what had happened to his mother; and his failure to summon any form of assistance by making a '999' call.

18. A further apparent oddity concerned the deceased's body being found on top of clothes and other items which PW1 had said were amongst those removed from various parts of the flat to mess up the bedroom after the deceased had fallen to the ground. However, it seems that this was not a meaningful line of enquiry as it overlooked the evidence given in the trial, illustrated to an extent by photographs, about how the body was moved from its original side-on position to a face-down position before ultimately being turned to face upwards. As a background to this topic generally, the prosecution had called a scientific officer, Mak Chun-lung, who gave evidence as an expert that in his opinion the room had been left in a state of disorder to give the impression it had been ransacked. He also found that there were no signs of forcible entry or violent struggle.

19. We shall return to some of these features in the evidence when we deal in greater detail with Mr Raffell's proposition that PW1's evidence provided a basis which was too tenuous for the case to be left to the jury and was in any event too unsafe a platform to allow this conviction to stand. In this context, we might add that during the cross-examination of PW1, it emerged that PW1 was a member of a street gang. It was for this reason that he was under the supervision of a welfare officer.

20. Other evidence came from police officers, ambulancemen and the forensic pathologist as well as PW1's friend, Cat. Police arrived at the flat shortly after 5.00 p.m. on 1 February 2000. Ambulancemen said that the deceased was lying on the floor, face down with legs slightly apart. They noticed slight bruising to the wrists and a bruise on the neck. Placed loosely around the deceased's neck was a man's neck-tie.

21. The pathologist, Dr Wong Hon-man, attended the scene at 7.40 p.m. He concluded that the time of death was at around 12.20 p.m., with a two-hour margin for error. The post-mortem was conducted on 2 February 2000. In the opinion of Dr Wong, the cause of death was strangulation, and he considered that the clearly visible bruising on the deceased's neck was more consistent with the deceased having been strangled with a thin cord, string, rope or piece of electric wire than with the neck-tie. We were informed by counsel that evidence was given at trial that the neck-tie had been knotted in such a way that it could not readily be untied or further tightened. The actual implement used to effect the strangulation is not known.

22. When the Applicant was arrested in the early hours of 2 February 2000, he told police that he had not killed the deceased. He maintained his innocence throughout the interview which followed.

Defence case

23. The Applicant, aged 37, gave evidence in his defence which was consistent with the account he had given to police. He described how he had gone out to breakfast at the Fairwood Fast Food Restaurant with his son (PW1). He estimated that this occupied the time between about 11.00 a.m. and 12.15 p.m. During this period, he said that he had seen and spoken to a friend of his son's who he was able to name (albeit PW1 had earlier denied that such a meeting had taken place). When he returned to his flat, the deceased was not there. He went on to say that he had an appointment to meet a female friend in Fanling with whom he wished to chat about business. He denied arguing or fighting with the deceased at any stage before leaving his flat at between 1.00 p.m. and 1.10 p.m. He gave a full account of his movements after leaving the flat. (His account about where he had been and what he had done after leaving the flat was not in dispute.)

24. The Applicant said that he had received a telephone call from his son while he was on a train which made little sense to him. He went on to say that the first time he had learnt about his wife's death was when his father telephoned him as he was travelling home on the KCR that evening. He said that he immediately went home where he met his father and, together, they went up to the flat. The deceased's body was lying face down on the floor. There was nothing tying the feet or hands together. The Applicant said that he then telephoned the police using the '999' system. (Police records indicated that this was at about 5.03 p.m.) After this, he tried to contact his son by paging Cat. When his son responded, he told him to come home.

25. The Applicant's father was not called as a witness by either side. Mr Raffell informed us, when we inquired whether it was known how the feet and hands of the deceased had been untied by the time the Applicant arrived at the flat, that the Applicant's father had made a statement to police in which he had said that when he later returned to the flat and found the deceased's body inside, he had removed the wires which had been used to tie the feet and hands. This was not apparently known to the jury. Having had our curiosity satisfied, we feel bound to say that this seems to be a feature of the case which could have carried the defence case no further forward had the jury been informed about it.

26. The Applicant's evidence revealed that his only previous conviction was for a non-violent offence about thirteen years earlier.

The summing up

27. Save possibly on one aspect, the summing up was not open to any criticism. The directions in law and on the facts, as Mr Raffell accepted, were meticulous.

28. The judge left the separate issues of 'unlawful act manslaughter' and 'provocation' to the jury. The jury's verdict of guilty on the alternative of manslaughter by reason of provocation appears to have arisen from evidence given by PW1 to the effect that the Applicant regularly had arguments with the deceased, mainly it seems over money. These arguments, about which the jury were reminded in the summing up, were said to have taken place two or three times every month. The Applicant was unemployed which had left the deceased as the breadwinner. PW1 said that the argument on 1 February 2000 was more serious than earlier arguments, although the quarrel was "not too loud", and it was the first time he had seen the Applicant strike his mother.

Possible criticism of summing up

29. The factual issue on which it seemed to us that some criticism of the summing up might possibly arise, although in fairness to Mr Raffell this was not a matter on which he raised concern, came from the judge's comment that:

"Yesterday, Mr Raffell (in his closing speech) made it clear to you that the defence are not alleging that he (PW1) had any part to play in her killing and I must make it clear to you that there is no evidence that he had any part to play in her killing." (Tr. p. 19)

30. Our concern was that, in a case where the Applicant had been saying in effect that someone other than himself had done this killing, these words spoken by the judge might have appeared to be excluding PW1 (or, possibly an associate in his presence) as a possible culprit. It goes almost without saying that he was even more likely to have been the culprit if his direct accusation against the Applicant was a false one. Our mention of an associate as a suggested possibility is a reference to the mileage which Mr Raffell sought to make in his cross-examination of PW1 arising from evidence that PW1 associated with a street gang, was himself subject to supervision and that a friend of PW1 was seen, according to the Applicant, in the restaurant where he and PW1 had breakfast. This was used by Mr Raffell to hint at the possibility of the involvement of a third person.

31. The judge, however, immediately went on issue a strong warning as to the way PW1's evidence should be approached. He said:

"(From) what I have already said to you, it will be very clear to you that you must examine (PW1's) evidence with very great care and very great caution before you accept it as true. He may have sounded a convincing witness, but you should consider whether or not he is just an actor - whether or not he is just acting - and that for some reason he has made up a story to get his father into really serious trouble. As Mr Raffell said to you yesterday in the course of his address, you have to be confident - confident - that you can rely on (PW1's) evidence." (Tr. pp.19-20)

32. In the light of this warning, the jury were well aware that whatever the defence were or were not explicitly alleging, they had to be satisfied above all about the truth of PW1's allegation before they could convict.

33. No explicit allegation could be made against PW1 that he had been involved in the killing because, on the Applicant's account, he had made his way to Fanling to talk about business with a friend and had not come to learn about the death until he received a call from his father at about 4.15 p.m.

34. PW1's evidence had, however, been subjected to cross-examination in which a number of implicit allegations had been made against him. Throughout his cross-examination of PW1, Mr Raffell had very properly pressed PW1 to give an explanation for the numerous lies he had told to the police in his first four witness statements. Without going into greater detail at this stage, it suffices to say that time and again PW1 replied that he had told many lies because he was concerned that the truth might either put him or his father or both of them in trouble. This was said despite the fact that PW1 had consistently maintained in his statements to police that the Applicant had killed the deceased.

35. With this in mind, as it could hardly be said that PW1 was keeping the Applicant out of trouble, Mr Raffell suggested that the only sensible reason for some of the lies told by PW1 must have related to PW1's desire to avoid suspicion falling on himself.

36. On occasions, PW1 accepted in cross-examination that this was so. One example revealed that even on apparently very minor points PW1 had been prepared to lie. He had confirmed in one of his statements to police that when he saw his mother's body it had been covered by a quilt. This was untrue, as he admitted at trial. He had said this, in his account to the jury, because "it might deflect the attention" and he further agreed in cross-examination that he had done this because he had thought his answer fitted with evidence about the quilt which he believed the police had acquired. PW1 also said that many of his lies were: "because at that time I really didn't know what to say, so whatever came up to mind and made sense to me, I say that".

37. Another feature arising from Mr Raffell's cross-examination of PW1, which is to be contrasted with the Applicant's version of events given later, was a direct allegation by PW1, made for the first time in the witness box, that the Applicant had asked PW1 on the telephone to take the blame for the killing.

38. Leaving aside the improbability of such a thing occurring, the Applicant having, only hours earlier on PW1's account, been seen by PW1 to have killed the deceased and then to have staged a ransacking, presumably to make it appear as if some unknown third person bore responsibility, this new evidence directly contradicted another aspect of PW1's evidence to which we earlier referred where he had said he was told by the Applicant not to worry as he (PW1) had not carried out the killing. The nearest PW1 had come to saying anything of this kind before was in the third of his witness statements to the police where he referred to a conversation he had had with Cat when he had asked her what she would do if she was asked by someone to admit an offence committed by another family member. When cross-examined about this, PW1 replied at first that this was in the nature of a hypothetical problem which he had been posing. He said that his enquiry to Cat which she, when she gave evidence, said never occurred, did not relate to the Applicant at all and was without relevance to the events in the present case. Again, leaving aside for present purposes the unlikelihood of these answers containing the truth, on the assumption the topic was ever raised with Cat at all, it was only after he had given these replies that PW1 spoke for the first time of the Applicant requesting him to take the blame for this killing.

39. The Applicant's version was a very different one. In the summing up, the judge dealt with this aspect of the defence as follows:

"(The Applicant) said on the train his son called him, his son said to him, 'I've finished with him (or her). I'm scared. I don't know what to do'. He said that he did not understand what his son meant by that and he thought that his son was going to have a quarrel with somebody. He asked his son, 'What's the matter?', he got no reply to that question. He asked again 'What's the matter?', and still got no reply.

He said he asked his son where his son was and the boy said he was at .... I think it is Tung Tau Estate. He said, 'Well, we'll talk about this when I get home', the boy made no reply, and then he hung up. He said he had got no idea then that anything at all had happened to (the deceased)." (Tr. p. 39)

40. A little later, the judge returned to this topic when he said:

"The defendant said - I have gone through this before - that his son phoned him and said, it is translated in English as: 'I finished him or her off'. He said that the phrase in Chinese, and you must excuse my very bad pronunciation of any Chinese phrase, was 'ngor gon dew kai'. The defendant agreed that these words were ones that are normally found in written and not spoken Chinese, and they are not usually used in colloquial Cantonese. He said in cross-examination by Mr Luk that he found the words strange. However, he denied Mr Luk's suggestion in cross-examination that his son had not spoken them.

You will remember that initially in cross-examination of (PW1) by Mr Raffell, (PW1) said that he had in fact said such words in one of his phone calls to his father, but later, in the course of that cross-examination, he retracted what he had said about that.

As to the significance of these words in Chinese and whether or not they are more attributable to written Chinese rather than to spoken Chinese, you are far better qualified than I am to determine that matter." (Tr. p. 45)

41. The judge did not go on to remind the jury, as he might have done, that when, before his retraction, PW1 was asked what he meant by his agreement to the use of words to the effect that he had finished with someone, PW1 had replied, somewhat oddly: "He (the Applicant) said he would finish off with my mother".

42. At the conclusion of the hearing on 29 November 2001, we ordered a transcript of the final speeches with a view to seeing how Mr Raffell had left the matter with the jury. This was in order to ascertain the accuracy of the judge's comment that Mr Raffell had not alleged against PW1 that he had played any part in killing the deceased. In the light of those transcripts, which counsel have not only seen but have addressed us upon at the part-heard hearing, it is apparent that Mr Raffell did leave the matter in the way the judge had summarized it.

43. Having said this, the evidence at trial effectively established that the only other probable suspect, who might have been considered to have had responsibility for the killing, was PW1. He had described his mother as having had "no breath" when he put his finger under her nose to see if she was still alive. This was allegedly at a time immediately after the Applicant had left the flat and before the arrival of his grandfather. He was, on his own account, the only other person who could have been present in the flat when the death must have occurred. In this context, it is clear that it was PW1's realisation that he might find himself accused of this killing which provided him with the motivation, as he had in part at least conceded, for telling some of the lies contained in his statements to the police. We shall return to this aspect later.

44. However, bearing in mind the strong cautionary words about the jury's approach to PW1's evidence and the extensive coverage of PW1's lies to police and, on occasions, to the jury also, we were satisfied that the judge's remark to the effect that the defence had not alleged that PW1 had "played any part in her killing" and that there was no evidence that he had done so, was properly and fairly balanced with other important considerations which the jury had to bear in mind when deciding whether the prosecution's allegation had been proved to the required standard.

Lies and contradictions in PW1's evidence

45. The lies and contradictions in the account given by PW1 clearly go to the merits of both grounds of Mr Raffell's application for leave to appeal. We have touched upon a number of these already.

46. Mr Raffell placed particular emphasis on what he called the "inconsistency" between PW1's descriptions of the way the Applicant allegedly fought with the deceased when these are compared to the pathologist's opinion that death was brought about by strangulation with a thin ligature.

47. PW1 never mentioned a ligature of any kind being used to effect the killing. On the contrary, in his first statement to police, PW1 said that he had seen the Applicant who had his front against the back of the deceased in a standing position, using "both of his hands to grab or embrace her neck ....". In chief, PW1 agreed with the suggestion which he had appeared to be making that his mother had been "armed-locked" when he described how the Applicant "threw his arm around the neck" of the deceased. In cross-examination, PW1 agreed that he had never mentioned an arm-lock in any of his statements to police and he went on to agree (Tr. p. 163) that "both hands were used in a throttling position".

48. Whilst the inconsistency in these accounts about what happened to the deceased is clearly established, we have not overlooked that PW1 also gave evidence that he did not have an unobstructed or even a constant view of what the Applicant was doing to the deceased. In particular, when the deceased went to the floor, PW1 said that he only had "glimpses" of what was happening inside the bedroom. PW1 added that the Applicant had blocked his view and that he "didn't see how he (the Applicant) did it". In our view, it follows from this that the fact that PW1 had not seen the Applicant placing a thin ligature around the deceased's neck was not, in itself, necessarily inconsistent with the account he had given about seeing an arm-lock or some other form of manual strangulation taking place. PW1 may have assumed that it was one of these activities which had led to the deceased's death. If he did so, he was wrong in the light of the pathologist's evidence that a ligature was used.

49. In this context, we have also considered the possible relevance of the neck-tie (which belonged to the Applicant) being found loosely around the deceased's neck. If this was put there as a means of strangling the deceased, then it seems that it became too knotted to use. A possible explanation, which we have not overlooked, is that PW1 could have put it there with the intention of casting suspicion on the Applicant. However, if this were so, it is to be observed that at no stage in his statements to police was the tie mentioned by PW1 as an item of any significance.

50. We have kept in mind also that on the Applicant's version of events, PW1 would have had the opportunity to kill the deceased while the Applicant was making his way to Fanling. Adopting an assumption for present purposes that PW1 was the killer, he would have been aware that a thin ligature had actually been used to kill the deceased. However, as we have said, he made no such allegation against the Applicant. His only reference to such an item was to be found in his description of the Applicant using electric wire to tie the deceased's legs and hands. It apparently follows, therefore, that PW1 made no attempt to accuse the Applicant of killing the deceased in a manner which, if he were the true killer, he would have known was the actual method used to kill.

51. When these matters are generally considered, there remains the dramatic difference between PW1's account to the police as to how the Applicant had manually throttled the deceased and his description of an arm-lock which he gave in the witness box. Plainly, it is no answer, by way of resolution to the discrepancy, to say that PW1 did not at all times have a good view of what was taking place. He was describing these actions as things he had actually observed.

52. So far as the many lies told by PW1 are concerned, these in themselves led to further inconsistencies and contradictions in his evidence. The judge dealt with all of those which he perceived to have been the most telling when he summed up to the jury.

53. There were, it seems to us, two areas of evidence where particularly serious lies were told. Each, to an extent, reflected on the oddity of PW1's behaviour which, in the result, could be interpreted as having brought suspicion upon himself.

54. The first concerned the evidence given by PW1 that soon after the Applicant had left the flat, having allegedly killed the deceased, PW1's grandfather came round and tried to open the door. PW1 first said that "a bag of stuff was blocking the door" which had prevented his grandfather from coming inside. Later, he admitted that it was himself who stopped his grandfather from coming in, not the clothes. PW1 went on to say that he led his grandfather downstairs to prevent him from being worried. This, however, was not the same as his first account given to police where he had said that the Applicant was still inside the flat, sitting on the bed, when his grandfather had tried to come into the flat. He had gone on to say in his earlier witness statement that later when he returned to the flat, after getting $20 from his grandfather, his father was still inside the flat.

55. When cross-examined about these contradictions as well as other lies and inconsistencies arising from the same topic, Mr Raffell asked PW1:

"Q. Because, of course, if your grandfather had come into the flat at that stage all he would have seen, according to you, would have been your mother's body and you?

A. Yes.

Q. And that's why you told the police about your father still being there.

A. Yes." (Tr. p. 186)

56. This illustration of PW1's ability to make up a story to deflect suspicion from himself is, as we have already pointed out by other examples, only one of a number which could have been taken to make the same point.

57. The second significant lie was concerned with the condition in which the flat was alleged to have been left before the Applicant went to Fanling. PW1 testified, as we have said, that the Applicant had deliberately messed up the flat by throwing articles around to create the appearance of untidiness. PW1 had not, however, mentioned this in his first statement. On the contrary, he had referred to returning to the flat, after he had seen Cat, to find that the police were in attendance and that the place looked as if it had been ransacked. He added in that statement that the flat looked quite different from the time he had last been there. He maintained this story in his second statement. It was not until his third statement that he admitted that he had been lying about the state of the flat. At that stage, he stated that he had not wanted to put his father in trouble by disclosing that his father had messed up the flat before leaving. This answer, bearing in mind, as we have said, that PW1 had consistently told police that the Applicant bore responsibility for the killing, provides no explanation at all for the lie he had been telling about the state of the flat.

58. The judge, when summing up to the jury, made a similar point when dealing with the lies told by PW1 in general. He said:

"(PW1's) reasons for his lies, ladies and gentlemen, as claimed to the police - and he said it many times - I have tried to count them and I then found I could not - was that he did not want to get his father into trouble. Well, once he had told the police in the very first statement, the one given on 1 February, that his father had killed his mother, he had already got his father into trouble. And, quite frankly, there was nothing more that he could have said to the police that could have got his father into any bigger trouble than he had already put him. So certainly - it is a point that Mr Raffell made to you in the course of his address - that explanation really, ask yourselves, can it hold water? Can it really stand as an explanation for those lies?" (Tr. pp. 35-36)

59. Apart from the lies and inconsistencies, a number of bizarre features in the evidence have been brought to our attention, both as to PW1's reaction to the killing of his mother, assuming him to have been an innocent party, and as to the Applicant's behaviour, assuming for these purposes that he was the guilty culprit.

60. We have made reference already to the oddity of PW1's failure to make any emergency report to the police or the ambulance service, especially when he could have had assistance from his grandfather in doing so within minutes of the killing. This was followed by PW1's total silence about what had happened when he was in the company of his friend, Cat. Later PW1 saw a female social worker from whom he had been receiving counselling in an effort to get him to dissociate from a youth gang which was getting him into trouble in and out of school. He again said nothing material to this case when speaking to the social worker.

61. He then made matters worse by telling police different stories at different times on highly material aspects of the case. Having said this, and keeping PW1's age in mind, his possible concern at being falsely accused of his mother's death is a factor which cannot be lightly put aside when, on the evidence, if the Applicant did not kill the deceased, PW1 was the only other person who could realistically have done so (or, to his knowledge, an associate).

62. On the other hand, for the Applicant to have carried out this killing, his first act of reported violence towards the deceased, in front of PW1, his son, who had been practising at a typewriter only a few feet away, paints a somewhat unlikely scenario in itself. The same comment can equally be made about the Applicant's subsequent behaviour if, in front of PW1, he solemnly proceeded to make the bedroom look as if it had been ransacked, before leaving the flat to carry on with his plans for the day as if nothing had happened, and without making any attempt to instruct PW1 as to the story he should give to anyone who might come to the flat or when the inevitable investigation began.

The 'no case' submission in the light of Galbraith

63. On any view this case was fraught with difficulties and when the evidence for the prosecution ended, Mr Raffell's submission of no case to answer was understandable. When he made his submissions, he dealt not only with the improbabilities in the account given by PW1 but also, in greater detail than it has been necessary to do in this judgment, with the manifest lies and inconsistencies which emerged from his evidence.

64. The judge considered the submissions made to him and in due course, after taking time for deliberation, he ruled that there was a case to answer.

65. The guidelines to be followed by a judge when confronted with a submission of no case to answer are to be found in R v Galbraith [1981] 73 Cr App R 124. The judge was reminded by Mr Raffell, in the course of his submissions, about the relevant passages from Galbraith which, at p. 127, posed the question: "How should the judge approach a submission of 'no case'?" This was answered in the following way:

"(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

66. Sometimes, when considering the second limb of Galbraith as in the case presently before us, the task which the judge has to perform in reaching his conclusion will be far from straightforward. The trial judge will, however, have the very considerable advantage, which an appellate court is necessarily denied, of having seen and heard the evidence unfold. The trial was presided over by a judge of long experience. He was entitled to form the view that there was no inherent weakness disclosed in the prosecution's case, that the strength and weakness of the case depended on the view to be taken of PW1's reliability and that, whatever view he might hold as to the credibility of PW1, it was open nonetheless to a reasonable jury to convict. It may well be that some judges would have taken a different view but, in our judgment, it cannot upon a strict application of the Galbraith principles be said that the judge was wrong to decide as he did.

67. Accordingly, the first ground of appeal must fail.

68. However, the matter does not end there. The question to be asked by a judge at trial, when deciding whether there is a case for the defendant to answer, is different from the question the Court of Appeal must determine when it asks itself whether a conviction is or is not unsafe. We now turn to this issue.

Unsafe or unsatisfactory verdict?

69. The second ground again presents an appellate court with the disadvantage of having had no opportunity for making a first-hand assessment of the evidence in the court below. The Applicant had denied having any involvement in the killing but plainly the jury must have disbelieved his account to have found him guilty and, more to the point, have accepted the evidence given by PW1 that the Applicant bore responsibility for the killing.

70. The question we have had to ask ourselves is whether, despite having been deprived of the distinct advantage of having heard and seen PW1 on whose evidence the issue of guilt was wholly dependent, the unsatisfactory features of PW1's testimony were of such collective magnitude and significance that the Applicant's conviction has thereby been rendered unsafe and should, in spite also of our observations as to the first ground of appeal, not be allowed to stand.

71. When looked at overall, the essential story told by PW1 could hardly have been less complicated. He had seen an argument between his parents develop into a physical struggle, at the end of which he discovered that his mother had died. We have attempted to view this essentially simple story against the host of other factors to which we have made reference earlier in this judgment.

72. At the risk of repeating some of these, we have particularly borne in mind that throughout the police enquiry, the Applicant remained consistent in his account. Those parts of his story which were capable of being checked, following his departure from the flat, were shown to have been true. By contrast, PW1's only consistent allegation of any significance was that the Applicant was the killer. On almost all other issues of relevance, varying levels of inconsistency were demonstrated in the accounts he gave.

73. Considering the probabilities of what may have occurred, in order to provide some kind of benchmark by which to gauge the likely course of events, we have looked with care at a scenario in which it is said that a 15-year-old boy (PW1):

(1) allowed himself to watch his father (the Applicant) killing his mother (the deceased) without moving a muscle to defend her;

(2) described two forms of manual strangulation which were far removed from strangulation by ligature;

(3) was able to watch the Applicant "ransack" his own flat without then being provided with a story to give to the authorities;

(4) prevented his grandfather from entering the flat;

(5) made no call of any kind to summon assistance;

(6) went about his day in the normal way, to meet his friend and then his social worker;

(7) said nothing to anyone about what had happened earlier at his home; and

(8) when confronted by the investigation which police were conducting, immediately blamed the Applicant for the killing but told a host of untruths relating to most other pertinent details about the killing and its aftermath.

74. We notice that even by the time of the trial, PW1 had not fully resolved to speak the truth and was caught out on many occasions telling lies or altering his evidence. Many of the explanations for giving evidence of this kind were unpersuasive. He could hardly have been protecting the Applicant having blamed him from the outset for the killing. Although he often used this as his excuse for the lies he had told, it is apparent that many of the untruthful details he supplied about the Applicant, while he may have perceived these as a means of avoiding suspicion falling on himself, actually worsened the Applicant's position.

75. Even if the Applicant may have left in panic after the killing, it was accepted that he had engaged in conversations on the telephone with PW1 when the Applicant, on PW1's account, again left everything to chance. It was said that the Applicant made no enquiries at that stage as to what had happened in his absence, whether anyone else had found out about the killing or even whether PW1 had spoken to anyone else about the killing.

76. We have found, having had a long time in which to consider this difficult case, that there were numerous areas giving rise to causes for our concern. In particular, there were many improbabilities which arose from PW1's account concerning the Applicant's behaviour following the killing. These have to be coupled with our concerns about PW1's own veracity, making him, as the central pillar to this prosecution, an unsound foundation. Even the deceased's refusal to give the Applicant any money provided a weak motive for this killing when PW1 had actually heard his mother agree to hand over the money allegedly being demanded from her. Whether we look at the motive, the manner of the killing or the subsequent events as alleged against the Applicant by PW1, none of this evidence hangs together comfortably or without question marks being raised.

77. In approaching our task, we have not overlooked PW1's youth and the possibility that the conflicting tensions he may have felt, arising from the dreadful situation in which he found himself, might explain some of the inconsistencies and improbabilities arising from what he said.

78. However, unlike the jury, whose task was to decide on evidence they had observed in court, whether they were sure the allegation had been out, the question the Court of Appeal must ask itself under the terms of section 83 of the Criminal Procedure Ordinance, Cap. 221, is whether, under all the circumstances, the conviction should be set aside on the ground that it is unsafe or unsatisfactory. [See: HKSAR v Hung Wai-tak [2000] 4 HKC 641 at 649G, where Kwong Kin-hung v R [1997] HKLRD 15 at 19F was applied.]

79. In the present case, we have concluded that the number of conflicts and the important nature of many of them, coupled with the improbabilities which we have itemized, were such that it is not possible to say that this conviction was safe.

80. In R v Pendleton [2002] 1 WLR 72, which was an appeal to the House of Lords involving fresh evidence, it was held that the question whether a conviction was "unsafe" was a matter for the Court of Appeal and, in the words of Lord Bingham (at para. 19):

"It is undesirable that exercise of the important judgment entrusted to the Court of Appeal .... should be constrained by words not to be found in the statute and that adherence to a particular thought process should be required by judicial decision."

Lord Bingham's judgment went on to lay emphasis on the importance of the Court of Appeal bearing clearly in mind that the "question for its consideration is whether the conviction is safe and not whether the accused is guilty." Later, in a separate judgment given by Lord Hobhouse (at para. 38), it was stated that "unsafe", the word used in the English and Hong Kong statutes as the yardstick for allowing an appeal against conviction in a case where such a description is apt, was an "ordinary word of the English language". Lord Hobhouse continued by saying:

"It connotes a risk of error or mistake or irregularity which exceeds a certain margin so as to justify the description 'unsafe'. It involves a risk assessment."

Conclusion

81. For the reasons we have given, we have concluded that this is one of those very rare cases where it is necessary to gainsay the jury's verdict.

82. Accordingly, we shall grant leave to the Applicant and treating the hearing as the appeal, we allow his appeal and quash his conviction.