HKSAR v. SO WOON KAU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.230
(Criminal)

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J U D G M E N T

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Stuart Moore, J.A. (giving the judgment of the Court):

1. On 6th March 1997, this Applicant pleaded guilty in the High Court to the Common Law offence of preventing the lawful burial of the corpse of Chan Ho-wai.

2. On 7th April 1997, following a trial before Mrs. Justice Bokhary and a jury, the Applicant was convicted on three further charges. The offences were (1) murder of Chan Ho-wai; (2) theft of $5,000 cash from Chan Ho-wai; and (3) blackmail by the making of an unwarranted demand for $6,000,000 from Chan Kwok-wai with menaces. The first two offences were committed on or about 11th April and the blackmail was committed on 12th April 1996.

3. The Applicant now seeks leave to appeal against the convictions arising from the verdicts of the jury.

4. In his original home-made grounds of appeal, he says, firstly, that the trial judge gave no direction to the jury on manslaughter. Secondly, he complains that the jury "snoozed" in court.

5. Today, he puts forward two further grounds of appeal. Firstly, he says that he has a sense of grievance that during his trial, when D1 changed his plea to one of guilty to preventing the lawful burial of the deceased, it had a great impact on his defence because the jury had seen the statement of D1 which may have biased them against the Applicant. He feels that his defence was discredited by what was said in his co-defendant's statement. He says, secondly, that the statement that he made to the police was one that he was forced to give and that, in any event, the statement was concerned with manslaughter, and yet he finds himself convicted of murder.

6. The facts can be very shortly described. On the one hand, the prosecution alleged that the Applicant made a confession to this killing after he had been handed back to the authorities in Hong Kong by officers from the Mainland on 24th May 1996. The Applicant spoke of being remorseful and then went on to outline a plan arising from his "momentary greed" to kill the deceased who was at that time his boss. He gave as his motive the fact that he was in debt. His boss had refused to lend him any money. The victim was hit on the head with a hammer and, when the Applicant saw that he was still alive, the Applicant struck a further blow to the victim's head. It seems clear not merely from the confession but also from the pathologist's evidence that an instrument of this kind was used. Following the death, a large sum of money was removed from the deceased's wallet and divided between this Applicant and the other defendant before the body was buried in a seal of cement inside a trough. Following that, an attempt was made by D1 on behalf of the Applicant to extort money from the victim's family by pretending that the deceased would be released on payment of a ransom of $6,000,000.

7. The Applicant pleaded guilty from the outset of the trial to preventing the lawful burial of the corpse. He denied murder, saying at the trial that the death had been an accident.

8. The learned judge summarised his defence with these words:

"In denying murder, theft and blackmail, the 2nd accused gave an account to this effect. He was demolishing a wall with a sledgehammer. There came a time when the deceased was present while he was doing that. And he accidentally struck the deceased with the sledgehammer, thus killing him by accident. He did not steal anything from the deceased. Nor was he involved in any blackmail. As for the deceased's body he did hide it. That was because he was very frightened that if he reported the matter to the police he might face a charge of killing someone."

9. The defence, so far as the alleged confession was concerned, amounted to a complaint that this had been extracted by serious police impropriety including torture.

10. Turning now to the Grounds of Appeal supplied by this Applicant, he is quite right to say that no direction was given to the jury about an alternative verdict to manslaughter. The reason for that is quite simple. This was not a case where manslaughter ever arose. If the jury believed the Applicant's version of events or thought that it might be true, this was a tragic accident followed by panic and no more. That, in turn, gave rise to actions that were highly incriminating but explicable in the light of his story that he feared being accused of a deliberate killing. From this version, the only proper verdict would have been an acquittal.

11. The other side to that story was murder. If the jury rejected the evidence of the Applicant and were sure that the Applicant's confession to the killing was a true one, then the killing could only have been murder. To take a second blow with this hammer when the body appeared, as the Applicant had allegedly expressed it, "to be still alive" was the clearest evidence of murder. The trial judge summed up the ingredients of murder with clarity and impeccable fairness. She went on to tell the jury (at page 10 of the transcript):

"In seeking to prove beyond reasonable doubt that the 2nd accused committed that murder, the prosecution relies on what it puts forward as a signed confession by him to such order. The 2nd accused disputes that confession. And he says that the deceased's death was accidental. It is for you to decide whether you are sure that he has indeed made a true confession to murder. If, but only if, you are sure of that, then you can convict him of murder as charged."

12. In dealing later, at page 35 of the transcript, with the important interview of this Applicant, the judge reminded the jury of certain passages and, beginning at Question 15 for the purposes of what I now propose to say, she told the jury:

"(15) Question:	Why did you hit your boss, Chan Ho-wai, on the head the second time?
Answer:	Because at that time, his head was bleeding, my elder brother-in-law Pak Kam-shing told me to hit him once more to hit him to death.
(16) Question:	You put Chan Ho-wai into the trough. At that time, was he dead already?
Answer:	At that time Pak Kam Shing said Chan Ho-wai was not yet dead."

I should add that Pak Kam-shing was D1 in the trial.

13. Dealing with those very important answers, the learned judge later went on to say this:

"You have seen an earlier admission by the 2nd accused to hitting the deceased with the hammer once more after seeing that he was still alive after the first hammer blow. You may think - it is a matter for you - that that shows an intention to kill. In any event, here you have just seen an admission by the 2nd accused to sealing the deceased in the trough with cement. So if he had not killed the deceased with the second hammer blow, you are entitled to find him guilty of murder on the basis of his putting him in the trough and sealing him in it with cement. You are entitled to say that that is certainly killing with the intent to kill."

14. The trial judge then directed the jury to give "no weight whatsoever" to the Applicant's statements "unless they were made free from any impropriety and were true". She went on to say:

"If you are thus sure in respect of any statement, then you can act on it. In acting on it, you are entitled to convict the accused on the count to which it relates.

As I have already told you, no accused has to prove anything. In respect of each count, the prosecution must, on the basis of the evidence which it has placed before you in this court, prove beyond reasonable doubt the 2nd accused's guilt on that count. That is precisely what the prosecution contends - while the defence disputes it - has been done here.

The decision is yours to make. Approach your task on the basis of the direction which I have given you and using your common sense."

15. There was ample direction in the course of this summing-up, not only as to the murder, but as to the other contested charges of theft and blackmail also. The ingredients of those offences and the approach which the jury should take to them were carefully explained. The directions were entirely correct and appropriate in the judgment of this court.

16. There is no substance in the first ground of appeal because this case was either one of murder or simple accident, and it was for the jury to decide whether the confession to murder, stealing property and the later blackmail were true confessions to the police. There was no room for a verdict of manslaughter, and to have directed the jury about the law relating to manslaughter would have been wrong when such a verdict could never have arisen on these facts.

17. His second ground of appeal complains of a juror having been asleep during the course of the trial. We have been provided with an extensive transcript and, if that topic ever arose, it must have been a matter of very little significance in the trial because it does not appear on the transcript with which we have been provided, and there is no recollection on the part of the prosecutor that such an incident arose. There is no substance in that ground.

18. Finally, we come to the points that are raised in court today. The grievance that this Applicant says that he feels about D1's statements having been seen and heard by the jury was dealt with by the trial judge. She directed the jury in these terms so far as the statements of D1 are concerned:

"Remember always that an out-of-court statement is evidence against the maker himself only and not against anybody else whom he mentions in his statement. I tell you that because, although you are no longer trying the 1st accused, you have seen statements which the prosecution put forward as statements by the 1st accused; and in those statements the 1st accused speaks not only of himself but of the 2nd accused too.

In considering the case against the 2nd accused you must not in any way whatsoever take against him anything said in the 1st accused's statement. Remember that throughout. What another accused says against him in an out-of-court statement is not to be taken into account against an accused in any shape or form."

19. We are satisfied that the Applicant need feel no grievance on this ground because the judge correctly directed the jury as to their approach to the statements of D1.

20. Finally, regarding what the Applicant has told us about how he was forced to give a statement at the police station, we have referred already to some parts of the transcript, and there were others, where that part of his defence was fully covered in the course of the summing-up. This was a matter for the jury to consider, and it is clear from their verdict that they rejected the defence account of what had happened at the police station.

21. For all these reasons that we have given, there is no substance in this application and leave to appeal so far as all of these convictions are concerned must be refused.