HKSAR v. LI HIU WAI

CAC C 139/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 139 OF 2011

(ON APPEAL FROM HCCC NO. 405 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the judgment of the Court):

1.  The applicant was unanimously convicted of murder by a jury before Barnes J on 22 March 2011 and sentenced to undergo imprisonment for life. He sought leave to appeal the conviction advancing but one ground, that the judge erred in failing to direct the jury that a taunt by the deceased to the applicant was capable of amounting to provocation. On 12 July 2012, we dismissed the application and said we would provide reasons. These are the reasons.

2.  The applicant was a married man and father of a young son at the time of these events.  He commenced a relationship with the deceased, one CHAN Ka-yan.  He provided her with accommodation.  They maintained a sexual relationship.  The applicant testified at trial indicating that the relationship had come to an end but that, at the request of the deceased, he had maintained contact with her as she had promised to use her influence with one of her relatives to secure a kindergarten placement for his child.

3.  The relationship between them may be characterised, according to the applicant’s testimony, as having been somewhat tempestuous, his evidence suggesting that the deceased was volatile by nature: it was his testimony that she had also threatened harm to herself on a number of occasions when they had argued.  There was evidence from a male who had apparently replaced the applicant in the affections of the deceased which was to the effect that he had been contacted by the applicant who had appeared to be cross about his, the witness’s, relationship with the deceased.

4.  On the day of the offence, 21 January 2009, in the course of his employment the applicant had driven a coach to Causeway Bay, which was where the deceased was employed.  He contacted the deceased.  They met after she had finished work.  The judge then summarised what happened next in these terms:

“She finally arrived at the location where the accused had parked the coach. The accused urged her saying ‘Quickly, say what you have to say to me. What is so important? I have to hurry back to the airport.’ Ms Chan then had a cigarette, smoking a cigarette and said ‘Oh wait until I have finished my cigarette first’. She did not say anything, just kept on smoking ...

When Miss Chan heard through the handset that someone was urging the accused to go home, she discarded her cigarette and just got on board. The accused told her ‘Hey, get off. You have to alight because you are not authorised to board the coach’ because she was no longer an employee of the coach. But Chan Ka Yan said ‘You had better go quickly. You see someone is already paging you to go back. I will talk to you on the way. Drive me to Tsing Yi. I will get transport from Tsing Yi home.’

... [On the coach] Miss Chan had gone into a temper and started pulling his hair and pulling and twisting his earlobe, knowing full well that he hated it – while they were still cohabiting .... It was interfering with his driving ... she resumed after a while in a very loud voice accusing the accused of not having a baby with her and accusing the accused to have caused damage to her relationship with her boyfriend ... . Miss Chan refused to listen to him at all and said something unpleasant to him – something about sex. He did not elaborate but you can imagine the idea is that she was saying something about him, about the sex.

By this stage the accused had already stopped the coach near a bus terminus at Cheung Hong Estate. He told you he picked up Miss Chan’s handbag and alighted. He threw it. At first he said “placed” later he agreed that he threw it on the ground and he then invited Miss Chan to alight. Miss Chan, before alighting, picked up his mobile phone, the spare one which he had put inside the pen holder on the coach ....

Miss Chan then said to him ‘I don't care who it is that had caused nuisance calls to my boyfriend. If anyone causes nuisance calls to my boyfriend again he will be like this’. She threw the spare phone onto the ground which shattered into pieces. According to the accused, what she said is that ‘if anyone ever disturbs my boyfriend, your son will be like the phone – not just anyone, your son – shattered.’

The accused at this time bent down to retrieve these pieces of broken phone, and while he was retrieving, Miss Chan came to the front of him and suddenly squeezed his neck, so much so that he found it difficult to breathe ....

He was bending down to pick up the phone and it was then that Miss Chan used the opportunity to attack him and squeeze him so that he could hardly breathe. He said he tried to swing off her hands and he could not ....

Because this happened so suddenly and he was so confused he could not think of any technique to use in self defence ....

... While Miss Chan was squeezing him she continued to say that she would pay someone to do away with his wife and son and have his son’s limbs chopped off and thrown into the sea to feed the fishes – and not just any sea, the sea where he goes fishing; not just anywhere, it is a particular part. ‘Where you go and do the fishing, his limbs will be in that sea to feed the fishes.’

On hearing that, the accused became so angry that he used both of his hands to squeeze Miss Chan’s neck ... . He said it did not occur to him that he would be so angry to lose control and kept on squeezing with both hands. He was so out of control that his mind was blank .... When he regained his senses, he found that Miss Chan was already lying on the ground and he had his hands on her neck. He patted her face ... no response. He began to panic ....

... The accused agreed that Miss Chan was wearing a dark coloured jacket with a hood with a string ....

The accused said that he had no recollection whatsoever of coming in contact with the strings.  He only remembers squeezing her neck with his hands.  He could not explain why there was a ligature mark found on her neck by the forensic pathologist.  He could not explain why there was this wad of tissue lodged deep in her throat, either.” [Emphasis supplied]

5.  It was the applicant’s case at trial that he then wrapped her body in plastic bags.  He hailed a passing taxi.  He placed the body in the boot.  He directed the taxi to a particular place where he disposed of the body whilst the taxi was making a U-turn.  He later went back to his place of employment where he found a knife.  Using a borrowed car he then returned to where the body had been dumped, stripped it of her clothing and possessions and cut off her fingers with the knife.  He disposed of these items in a nearby dump, returned home and then disposed of his own clothing.

6.  In circumstances which are not germane to our decision, the applicant was arrested and cautioned on 30 January 2009.  In response to that caution he said “I on the spur of the moment squeezed her to death unwittingly.  After that I conveyed her to Ngau Tim Mi and dumped her down to the service reservoir.”  He agreed to and did take the police to the scene where he pointed out the dump where he had disposed of her possessions and dismembered fingers and then took them to where the body lay.  That same day he was interviewed under caution for almost an hour and thereafter agreed to participate in a reconstruction which occurred the following day.  He was again interviewed on 1 February 2009, this time for at just over one and a half hours.  

7.  The prosecution case was that this was a planned killing, the applicant having found it impossible to come to terms with losing the affection of the deceased.  The applicant’s case was that he had not intended to kill her and that in any event he was provoked into his assault upon her.  He pleaded guilty to manslaughter, a fact of which the jury was made aware.

8.  The judge carefully directed the jury, both at the beginning of her lengthy summing-up and the conclusion, as to the law relating to provocation.  No point is taken as to the correctness of that direction, nor sensibly could it be.  She traversed in great detail the nature of the relationship between the applicant and the deceased almost from its inception as well as the events on the day of the offence.  In doing so she, of course, was simply reminding the jury of what the applicant had said about that relationship.  Even so, she was at pains to portray it in accordance with his testimony.  She pointed out to the jury that they were not confined to events on the day of the offence when considering the issue of provocation and should specifically consider the previous conduct of the deceased; the effect that it may have had on the applicant; and whether what she said and the way she behaved on the day of the offence simply amounted to, as she put it, the last straw that broke the camel’s back.

9.  There were two references in the evidence to an unfavourable comparison allegedly made by the deceased between the applicant and the new boyfriend.  The first was in one of the interviews:

“Q: Well you parked the car off Ching Chung House. You said she – as you said a moment before. You said that she told you the disturbance to her boyfriend. How long was the talk?

A: Talked for just a while. Talked for just a while. She said-

Q: How long was a while?

A: That was probably near five-probably near about five minutes.

Q: About five minutes?

A: Right, around five minutes. Because I have forgotten things in detail. Because her – her emotion – she was filled with emotion. I could not control her at all.

Q: Filled with emotion, how?

A: “Then, do you need ... do you need me and him – to break up with this one? I have told you – so what even after breaking up with this one. It is none of your fucking business.” That was said.

Q: Then?

A: Sorry. Is it permitted to speak bad language here?

….

A: She said “it is none of your fucking business. I can do whatever fucking thing. It’s fucking none of your fucking business” she said “I don’t need your fucking concern about my business. Screw you”

Q: That what she said?

A: Yes.  She said “He – he is very a-very-very fucking gorgeous.  Much – much better than you. You – I like it. What’s the fuck you can do to me?”

Q: What was next?

A: And

Q: That meant she said such thing afterwards.

A: She said such words to make me annoyed. I said – I said – I said “I don’t have time to talk to you. I’m in a hurry to the company. You get out of the car.” That’s it.” (Emphasis added)

10.  It is the emphasised passage which, so argues Mr Ross, ought to have been highlighted or mentioned by the judge as a material provocative piece of conduct which was said to have caused or contributed to the loss of self-control.  That, however, was quite clearly not the effect of the applicant’s account in the interviews.  The deceased had, according to this account, throughout the journey in the coach before the offending remark upon which this application concentrates, been behaving objectionably, pulling his hair and slapping him about the head, accusing him of having harassed the new boyfriend and after the remark in question he asked her to leave the vehicle.  There was no suggestion that that remark, either in isolation or as part of a cumulative chain of words and conduct caused him to lose his self-control.  What caused him to lose his self-control, according to this and an earlier interview, was her pursuit of and attack upon him once they were out of the vehicle and, most particularly, her threats against the safety of his young son.

11.  The second reference was in examination-in-chief. Again, his assertion was that during the drive in the coach she asserted that he had made or had caused someone to make nuisance telephone calls to her boyfriend; that she had pulled his hair and his ear; complained that he had refused to have a baby with her; and then:

“A: She refused to listen to me. She said something not pleasant to me and continued to speak in a loud voice.

Q: And can you remember now what she was saying in a loud voice?

A: Something about sex.  Noticing that she lost control of herself whilst she speak, I drove the coach aside and stopped the coach.”

12.  He stopped the coach, he said, because he was worried that there would be an accident.  He invited her to leave the coach.  He did not suggest that he stopped the coach because he was losing, or feared he might lose, his self-control.  To the contrary, he was fully in control of his passions to the extent that he said: “Please alight” – hardly the conduct of someone who had lost his self-control.  He explained to her that he did not want to lose his job.  She disembarked.  So did he.  Then he told her that he would not be her friend anymore.  He did not want to cause damage to the company’s car.  He asked her not to contact him anymore and told her where to go to catch a bus and offered her money to take a taxi back to Sha Tin – again, behaviour quite at odds with any loss of control.  However, what next transpired changed his mood: she had taken his mobile telephone from the glove compartment of the coach and said to him that if her boyfriend was disturbed again “I will not let you go.”  She threw his mobile telephone onto the ground and it broke and she said that if anyone ever disturbed her boyfriend any more the applicant’s son “would be like that phone”; in other words, shattered into pieces.  The applicant went to pick up the telephone and that is when she rushed forward and squeezed his neck and he tried to swing away and while he was doing so she said: “I will get someone to do off your wife and your son.”  It was on hearing that that he became very angry, so angry, in fact, that he used his hand to squeeze her neck.  “ ... She said she would ask someone, pay someone to do harm to my son and my wife, pay someone to chop my son, chop off his limbs and throw into the sea to feed the fishes.  Upon hearing that, I was so angry that I lost control of myself.  In return I squeezed her.” (Emphasis added)

13.  The effect of his testimony in the course of cross-examination was to the same effect, that it was a threat to harm his son, chop off his limbs and throw his limbs into the sea where the applicant used to go to fish, that caused him to lose control: “ Only at that time did I squeeze her,” he said.  That was the overwhelming reason.  “I only recall that when she squeezed my neck she said something about harming my family.  It was only then I became so angry and squeezed her back."

14.  It was never part of the applicant’s case that the suggested comment about the attractiveness of the new boyfriend – whether sexual or otherwise – caused him to lose his control.

15.  The previous hearing of this application was adjourned in order for us to obtain a transcript of the applicant’s testimony and counsel’s closing speeches to see what, if anything, was made of this point at trial.  The long and short of the matter is that counsel then appearing for the applicant made nothing of it at all.  He did not even mention it.  Indeed, his point was that the applicant was not a jealous lover; not a resentful person.  Then this: “ ... so far as it concerns the accused, it was the threats made by [the deceased] concerning the safety of his son that caused him in what was on any view a highly charged emotional affair that caused him to lose his ability of self-control and to prompt him into asphyxiating, whilst he was not in control of himself, … [the deceased]….”

16.  It is not correct to say that the judge did not refer in her summing-up to the suggested taunt.  At one stage she reminded the jury that according to the applicant the deceased had said “something unpleasant to him – something about sex.  He did not elaborate but you can imagine the idea is that she was saying something about him, about their sex.” Then at a later stage of the summing-up, when the judge took the jury through the extensive interviews she referred to the part where “Chan Ka Yan [the deceased] said things about her current boyfriend to annoy him”.

17.  There was no complaint after the judge’s summing-up by counsel for the applicant that the judge had failed to invite the jury’s specific consideration to the suggested taunt as material to the question of provocation.

18.  The ground of appeal offered by counsel who now appears for this applicant is, with respect, an unrealistic ground.  Putting aside entirely the fact that the judge did allude to the comments in question and even assuming for the moment that the applicant’s evidence about the deceased’s conduct was or may have been true and even assuming that the comment upon which counsel now concentrates was indeed a sexual taunt, it was one comment in the midst of a stream of other highly provocative conduct which, both objectively and according to the applicant himself, was much more serious including, in particular, threats to the life of his young son; and – it bears repeating – the applicant’s evidence, in its effect, disavowed any suggestion that the comment about the boyfriend caused him to lose his self-control.  

19.  The palpable weakness of the point taken is further apparent when one appreciates that the jury’s verdict demonstrates that the jury must have rejected the applicant’s account of the deceased’s conduct when she, allegedly, was on the coach with him and when she disembarked, including his account of the threat she made to the life of his son.  Had the jury thought it possible that that threat might have been made and that he was attacked by the deceased at the time of the threat, a manslaughter verdict on the basis of provocation was inevitable.  So the argument must rest on the proposition that the jury may have concluded that a taunt, in the form of an unfavourable comparison with the boyfriend, was or may have been levelled at the applicant but rejected assertions as to other provocative conduct; alternatively, that they accepted his account about prolonged provocative conduct including the threat to have the son killed and throw the boy’s dismembered body to the fish but that the alleged taunt about the boyfriend tipped the scales.  Quite apart from the fact that this was simply not the applicant's case, it is untenable to suggest that the judge should have conjured either scenario as a possibility for the jury’s consideration.

20.  It is no surprise to us therefore that counsel for the applicant or for the prosecution did not seek to persuade the judge to say more on the provocation issue and it is no surprise to us that counsel who appeared for the applicant at trial has not appeared upon this application armed with this ground.  The point advanced by Mr Ross was not reasonably arguable and, accordingly, we dismissed the application for leave to appeal conviction.

21.  There was also an application for leave to appeal sentence, advanced by the applicant in person.  This too we dismissed.  The sentence of life imprisonment passed by the trial judge is fixed by law.