HKSAR v. WONG WING CHEONG

CACC 449/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 449 OF 2000

(ON APPEAL FROM HCCC 336 OF 1999)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

This is an application by the defendant for leave to appeal against both conviction and sentence.

2. The defendant was on trial before Beeson J and a jury. The charge that he faced was murder, in that on 11 July 1999 he murdered Tse Sum. On 19 October 2000, the jury returned a verdict of not guilty of murder but guilty of manslaughter. The Judge passed a sentence of seven years' imprisonment on the defendant.

3. The incident involving the defendant and Tse Sum (the deceased), took place at about 6.30 pm on 11 July 1999 inside Luen Hop Carpark, Sheung Cheung Wai Sun Tsuen, Ping Shan, Yuen Long. Both the defendant and the deceased were neighbours living in different shanties at Tung Yuen, opposite the carpark.

4. Nobody witnessed what exactly occurred between the defendant and the deceased. It was sometime at 7 pm that day that the defendant telephoned the police through 999. As a result, an ambulance arrived and took the deceased, who was lying on the ground, to the hospital. The ambulancemen, the carpark caretaker from his office the 999 call was made, the doctor at the hospital who received the deceased, the forensic pathologist who conducted the autopsy on the deceased and an examination of the defendant, the forensic scientist who examined the blood samples of the deceased and the clothing of the defendant, the police officers who arrested the defendant and the police sergeant who took a statement from the defendant which was video recorded all gave evidence before the court. The defendant voluntarily made statements in the interview and he also gave evidence before the jury.

5. It transpired that the defendant and the deceased had been neighbours for about a year. The relationship between them was most uncongenial. The defendant disliked the deceased because the deceased was a junkie, and it was in evidence that the deceased had 24 convictions in connection with dangerous drugs, showing most probably that he was an addict. The defendant believed that the deceased had let down the air in his bicycle tyres and caused them to be punctured. He also believed that the deceased had stolen various items from him. At about 6.30 pm on 11 July 1999, the defendant was returning home from his grocery shopping. He saw the deceased who was continuously murmuring to himself. Probably because of the unhappy background, he thought the deceased's murmuring was directed at him. He went up and slapped the deceased twice. The deceased fell and rolled down a slope. All of a sudden, the deceased began throwing stones at the defendant. The defendant chased after the deceased and a struggle ensued. The deceased then ran away and carried on throwing stones at the defendant. The defendant dragged the deceased and hit him. The deceased fell onto the ground. The defendant, according to his statement, was very angry and he kicked and stamped on various parts of the body of the deceased, but not with strong force. The defendant left and went back to his home, while the deceased was lying on the ground. After changing his upper garment and socks, the defendant went back to the carpark and saw the deceased still remaining supine on the ground. He went to the carpark office in order to call an ambulance. The caretaker first did not let him use the telephone but eventually allowed him to do so. According to the defendant's interview statement, he then returned to kick the deceased twice before the arrival of the ambulance. That was because he was still very angry at the deceased.

6. When he gave evidence before the court, his account of the events was much the same as that said by him in the video interview. A major difference was that he was at pains to put before the court the fact that he was in control of himself during the time the events took place.

7. Dr Yu was the doctor who saw the deceased when he received the deceased as a patient at about 7.20 pm on 11 July 1999. He told the court that the deceased was showing no signs of life at that time. He and his senior tried three different ways of resuscitating the deceased for 17 minutes, but failed. At 7.37 pm, they officially declared the deceased dead.

8. Dr Poon Wai-hung was the forensic pathologist who gave evidence. Basically, he said that the cause of death was multiple injuries sustained by the deceased. He described three major areas of major injury that he found:

(1) severe blunt impacts to the head and neck and also to the back and upper limbs;

(2) deep haemorrhages in the brain caused by the rapid shaking of the brain consistent with repetitive kicking; and

(3) the cartilage of the voice box had broken up in several places.

9. He also described that the deceased, aged 68 years, had a quite serious heart disease, where one coronary artery was narrowed by 80 per cent and the other coronary artery by 60 per cent. However, he did not find evidence of a heart attack causing death during the autopsy.

10. Dr Lun Tse-shan, a forensic scientist, gave evidence about the DNA grouping of the blood of the deceased. The blood was found on the shorts and shoes that the defendant was wearing upon his arrest.

11. All the above evidence was referred to in the Judge's summing up to the jury. She also directed the jury in some detail about the law. She told the jury the elements required for proving murder, as follows:

(1) The defendant was the person who committed the assault on the deceased;

(2) the defendant had an intention to kill the deceased or to cause him serious injuries; and

(3) the defendant died as a result.

12. Apart from alluding to accident, the Judge also directed the jury on manslaughter. She said:

"A killing is manslaughter if it is the result of an unlawful act by an accused where the unlawful act is one which all sober and reasonable people would inevitably realise must subject the victim to the risk of some harm, even if not serious harm, whether the accused realised this or not."

13. She also directed the jury on provocation, which would reduce murder to manslaughter.

14. She told the jury that self-defence, rendering the killing not unlawful, was available to the defendant. If the jury were not sure that there was no self-defence, or in other words, if the prosecution had failed to prove beyond a reasonable doubt that there was no self-defence, the defendant would not be guilty of anything. She told the jury about the use of reasonable force in self-defence, to be judged subjectively, apparently based upon Palmer v The Queen [1971] AC 874. She said:

"And you should also bear in mind that a person who is defending himself cannot be expected in the heat of the moment, or in the height of a struggle, to weigh exactly the precise amount of defensive action which is needed to deflect the attack that is made on him, or the threatened attack that is made on him. Because that is not really realistic. Somebody who's engaged in a struggle while he thinks he is fighting for his life, cannot really be required to sort of measure out his attack, as it were. So if in your judgement the accused believed or may have believed that he had to defend himself against the deceased and that he did no more than he honestly and instinctively thought was necessary to do, that would be very strong evidence that the amount of force used by him was reasonable."

15. In his notice of application for leave dated 1 November 2000, the defendant stated that it was improper and unsafe for the Judge to convict him. His reasons for appeal are as follows:

"During the trial in the High Court, the testimony given by the police officers and the ambulancemen was mostly lies and was inconsistent with the facts. The testimony given by the forensic pathologist and the evidence adduced were mostly inconsistent with the facts. Finally, concerning the offence of murder with which I was charged by the Police, the jury reached an unanimous verdict of not guilty after consideration. Yet the jury indicated that I was guilty of manslaughter and the trial judge found me guilty of manslaughter and sentenced me to seven years' imprisonment. This is unfair to me and I do not agree with the charge of manslaughter, (therefore) I am asking for a judicial review! It is hoped that the judge(s) of the High Court can look into the matter carefully."

16. Despite the allegations of the verdict being improper and unsafe and the various allegations contained in the reasons cited above, the defendant has not been able to direct our attention to any part of the summing-up of the Judge to the jury that can possibly sustain any of his grounds. This morning he has raised some matters with us but none has any relevance as a ground of appeal. The Judge had summed up the evidence in sufficient detail in a very fair manner and her directions on the relevant law were comprehensive and correct. Indeed, the jury's verdict that the defendant was guilty of manslaughter was well justified by the admissions that he made in the video interview and in his testimony before them. We do not find that any of the grounds or points made by the defendant before us raise any matter of concern that may lead us to feel that the verdict is unsafe or unsatisfactory. In the result, the application against conviction must be dismissed.

17. What the defendant stated in his application for leave regarding sentence is as follows:

"I hereby request to have my term of imprisonment reduced. The ground is that the trial judge passed a sentence too inappropriate for the offence(s). Therefore I now apply to the judge(s) of the High Court for a review of the term of imprisonment, hoping that the matter will be properly looked into."

18. Manslaughter is a crime the punishment for which varies a great deal from case to case. There is no tariff sentence. In passing the sentence of seven years' imprisonment, the Judge had taken into account all the relevant circumstances and, in particular, the mitigating factors that the defendant had called the ambulance and that he was considered by a psychiatrist to be of a schizo-type of personality. There was a possibility that the defendant suffered from delusional notions about the people with whom he was living. Although there was, as described by the defendant, a year long animosity between him and the deceased, and the deceased had murmured in the defendant's presence on 11 July 1999, and the deceased had thrown stones at him causing some abrasions on his left forearm, the defendant's blameworthiness in causing the deceased to lose his life in the circumstances well justifies the term of imprisonment imposed by the Judge. We do not consider that the sentence is either manifestly excessive or against principle. Indeed, it is most blameworthy that even after the deceased had fallen on the ground, the defendant admittedly continued to kick him and even after the defendant had returned home to get changed and had a cigarette, obviously having had some time to calm himself down, he returned to the scene and kicked the deceased twice before the arrival of the ambulance. All these kicks were done while the deceased was lying on the ground absolutely defenceless. According to Dr Poon, the deceased was merely about 45 kg in weight and 5 ft 3 in tall. On the other hand, the defendant, a much younger man at 51 years of age, weighed 60 kg and was 184 cm tall. However, in the video interview, the defendant said that the deceased was heftier than him. There was simply no justification for the defendant to have used such force against the deceased, even if it is true that the deceased was throwing stones at him. The defendant could have left the scene or he could have ignored the deceased when the deceased was murmuring to himself, although he thought the deceased was murmuring at him. Yet, the defendant chose to slap the deceased, and after stamping at the deceased to cause him to fall on to the ground, continued to stamp and kick him. We consider that the sentence passed by the Judge was on the lenient side. The application for leave to appeal against sentence is entirely without merit.

19. In the result, the application regarding both conviction and sentence must be dismissed.