HKSAR v. CHUNG KEI TUNG

CACC 138/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 138 OF 2006

(ON APPEAL FROM HCCC NO. 341 of 2004)

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J U D G M E N T

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

1.  Following a retrial before V Bokhary J, the applicant was convicted on 31 March 2006 by a jury of murder and sentenced to life imprisonment.  Although he now seeks leave to appeal against conviction and sentence, it is well settled that the mandatory sentence for murder is not subject to appeal and we can indicate straightaway that the application in regard to sentence is dismissed.

2.  There was no issue at trial that the applicant killed Tam Yun-shing (the deceased) on 29 September 2001 during an incident on board a fuel barge ‘Feng You 1’ on which the deceased worked as a mechanic.  He was 52 years old and lived in the New Territories. 

3.  The applicant was a fisherman from the Mainland, aged 39, who owned a motorised sampan.  Having purchased fuel for his sampan, he had obtained permission from the master of the barge, Leung Kam-tai, to stay on board that night.

4.  During the early hours of 29 September 2001, Mr Leung was disturbed by some noise and he also heard the dog barking.  He went down to the deck where he could see the applicant struggling with the deceased close to the door of the deceased’s room.  The applicant was holding the deceased’s neck with one hand and when Mr Leung asked them what was happening, the applicant told him it was none of his business and asked him to go away.  Mr Leung subsequently shouted at them to stop but the struggle continued and the applicant then stabbed the deceased in the neck causing blood to splash onto the engine room wall.  As the applicant was about to stab the deceased again, Mr Leung shouted to him to stop which this time he did.  However, the neck wound was a fatal blow.

5.  Dr Lam Wai-man, the pathologist who conducted the post mortem, provided a report which was exhibited at trial (P92).  In short, he found several stab wounds and cut wounds to the deceased’s head, trunk and upper limbs in addition to the fatal stab wound to the deceased’s neck.  This had cut the right carotid artery and had caused extensive bleeding.  A bloodstained knife (P5), found by the police on the applicant’s sampan, was described as capable of having caused the fatal wound.

6.  When the applicant was given a physical examination, he was found to have bloodstains in his ear.  This blood was later identified as being the deceased’s.  The doctor who examined the applicant also found on him a number of bruises and abrasions of a minor nature.

7.  The applicant gave evidence at trial that having been given permission to stay the night on the fuel barge, he had been instructed to sleep in the cabin which the deceased also occupied as this had two berths.  However, when he woke the deceased and spoke to him, the deceased refused to let him use the other berth.  The applicant said that he then returned to the cabin to ask if he could take some bedding to sleep outside.  According to the applicant, this caused the deceased to get up.  He was using bad language to scold the applicant as he pushed the applicant out.  This conduct made the applicant so angry that he returned to his sampan which was moored alongside to fetch two knives with which, according to him, he meant to scare the deceased.  He returned once more to the deceased’s cabin where he woke him a second time.  When he showed one of the knives he was carrying, the deceased grabbed the applicant’s hand and a confused struggle ensued in the darkness.  The applicant said that although he was aware he had stabbed the deceased, he was not sure where the knife had cut him.  After this had happened, the applicant described a violent reaction from the deceased and at one stage the applicant said that he threw the knife out of the cabin.  He also wanted to get rid of the second knife in his possession but he could not recall if he did so.  He described himself at that stage as not being able to control himself.  He was walking, he said, like a person who was drunk.  In this context, it may not be without significance that, in his account to the police following his arrest, the applicant had described having fought with the deceased after he had initially wounded the deceased, stating:

“At that time, I stabbed again … Later on, I stabbed him several times more with the knife … Someone once said I would kill somebody if I lost my temper on the spur of the moment.  Now it really was.”

8.  Dr Anita Leung was called on the applicant’s behalf to testify, as a clinical psychologist, about the test responses given by the applicant.  These fitted the pattern of someone having ‘Avoidant Personality Disorder’ and ‘Alcoholic Dependence’.  She said that the applicant’s personality defects and maladjustment made him more likely to lose his self control than would otherwise be the case.

9.  In his homemade grounds of appeal attached to his Notice of Appeal and, more recently, in a letter dated 25 June 2008, the applicant criticised the judge in a number of ways which he stated caused unfairness to himself.  He also referred to a number of minor details in the evidence which he contended were contradictory.  His main contention was that he should have been found guilty of manslaughter but he submitted that he was denied this opportunity because of the way the case was summed up to the jury.

10.  We have had the opportunity of studying the summing up.  There is no substance in any of the applicant’s complaints about the judge’s handling of the trial.  On the contrary, the issues which were before the jury were fully explained in the clearest terms.  In regard to one specific complaint, that pressure had been put on the jury to reach a verdict in the event that they were split 4 to 3, the judge had correctly informed the jury that, in this event, she would give them further directions.  However, no further direction was necessary before the jury returned their verdict of guilty at 3.41 pm.

11.  The application is dismissed.