HKSAR v. XU SHENGQI

CACC 463/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 463 OF 2010

(ON APPEAL FROM HCCC NO. 90 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Fok JA (giving the Reasons for Judgment of the Court):

Introduction

1.  The applicant was charged with four counts of murder and tried before D. Pang J and a jury.

2.  On 23 November 2010, the applicant was found guilty on three of the four counts of murder (counts 1, 2 and 4) and, on the remaining count of murder (count 3), was found not guilty of murder but guilty of manslaughter.

3.  The Judge sentenced the applicant to life imprisonment on the murder convictions and to a term of nine years’ imprisonment on the manslaughter conviction.

4.  By notice of application dated 16 December 2010, the applicant now seeks leave to appeal against his convictions for murder.  By a letter to the court dated 8 August 2011, the applicant sought to raise an additional ground of appeal and also requested that he be given a determinate sentence of imprisonment.

5.  Legal aid has been granted to the applicant in respect of the appeal against conviction.  Mr Andrew Bruce SC, counsel for the applicant, attended at the hearing to assist the court, for which we are grateful, but did not advance any ground of appeal.

6.  At the conclusion of the hearing, we dismissed the application for leave to appeal against conviction.  Insofar as the applicant sought a determinate sentence of imprisonment, we treated that as an application for leave to appeal against sentence and dismissed that application.  We now give our reasons for those decisions.

The facts

7.  The four victims named in the indictment were all members of one family consisting of a married couple and their two infant daughters.  The father was named Tam Shing-fai, the mother Tong Yan-yee and the two daughters, who were respectively aged 10 and 7, were named Tam Hui-man and Tam Hui-ying.  Mr Tam and Madam Tong were the victims named in counts 1 and 2, Tam Hui-man was the victim in count 3 and Tam Hui-ying was the victim named in count 4.

8.  It was an admitted fact that the applicant killed all four of the deceased on Sunday 5 July 2009 at their village house in Ping Che Village, Ta Kwu Ling, New Territories.  The applicant was a cousin of Mr Tam, who was then a visitor from the Mainland on a Two-way Permit.  The applicant had, for a number of years before the killings, been a regular visitor to Hong Kong and had performed various renovation works on the Tam’s village house.  After killing the deceased, the applicant buried them within the compound on which the Tams’ home stood.

9.  The deceased died sometime between about 11.30 am and 3.02 pm on 5 July 2009.  This timeframe has been fixed by reference to the fact that Mr Tam had visited his mother in an old people’s home in the morning and did not leave until about 11.30 am and the fact that at 3.02 pm the applicant is recorded as having tried to use Madam Tong’s Visa card to withdraw money from an ATM machine at Sheung Shui MTR station.

10.  In the morning of 6 July 2009, which was a Monday, the applicant ordered bags of cement, paying an additional sum for immediate delivery.  Later that day, colleagues of Mr Tam and Madam Tong each respectively called the Tams’ home to enquire as to their whereabouts because they had not turned up for work that day.  Each was informed by a man who answered the telephone that they had gone back to Dongguan.  A colleague of Mr Tam remained suspicious and reported the matter to the police who went to the Tam’s home at about 1.15 pm.  On their arrival, they were informed by a neighbour of the Tams, Mr Wong, that they had gone to Dongguan.  Mr Wong had been asked by the applicant to tell the police this.  However, the police not being satisfied with this explanation, Mr Wong led them to the applicant.

11.  The police questioned the applicant and he proceeded to inform them of a number of matters, which were later found to be lies.  These included the statements that Mr Tam had gone back to the Mainland on the Saturday to deal with a transaction concerning his property there; that Mr Tam had left instructions that, if he failed to return to Hong Kong by the Monday, people should be told that he had gone back to Dongguan; that he had no way to contact Mr Tam who had simply asked him to look after the house and finish paving the ground outside; and that he had injured his finger while dealing with nails and bolts.

12.  After more police officers arrived at the Tams’ home a search was conducted and the applicant was arrested.  Under caution, the applicant admitted killing the deceased but claimed he did so accidentally.  He was taken to Ta Kwu Ling police station and, upon searching the applicant there, the police found Madam Tong’s bank and credit cards in one of his trouser pockets.  He later participated in a number of video-recorded interviews and participated in a case of re-enactment.

13.  On 6 July 2009, in the room of the home of the applicant’s uncle which the applicant used, the police found a bag containing Madam Tong’s laptop computer and her wallet as well as the mobile telephones of Mr Tam and Madam Tong.  Madam Tong’s old student travel card was also found under the pillow on the bed in that room.

14.  On 7 July 2009, the bodies of the four deceased were excavated.

(1) Mr Tam’s body was not bound. A post-mortem examination of Mr Tam’s body determined the cause of his death to be multiple stab wounds: 65 stab wounds were found on his trunk, distributed between his front of chest, abdomen and lower back. In addition, although they did not cause Mr Tam’s death, he also had 13 stab and incised wounds on his upper and lower limbs, three of which, on his palms, were defensive injuries.

(2) Madam Tong’s body was found to have been tied up. Her wrists were tied behind her back by two yellow cables which were looped around her neck. Her wrists and ankles were also tied up with metal wire. Her head had been covered: first, by a blue woollen sweater which was encircled with grey wire and adhesive tape covering the area of her neck and mouth; secondly, by a black plastic bag encircled with metal wire; and thirdly, by a white plastic bag secured by an electric wire attached to a plug. A white vest was found stuffed inside her mouth. She had suffered six lacerations to her scalp and forehead, thought to have been the result of an impact with hard objects with a flat surface. The cause of her death was suffocation.

(3) The body of the older daughter, Tong Hui-man, was also found to have been tied up. A piece of adhesive tape was found to have been wound around her jaw and neck and a linear mark was found on her face. The applicant admitted that he had used adhesive tape to seal her mouth. Both her arms had been bent forcefully up behind her back and her wrists were tied together with one yellow cable looped around her neck. There was an indented abrasion and deep bruises on her neck. Her ankles were tied together by another piece of yellow cable. The cause of her death was ligature strangulation.

(4) The body of the younger daughter, Tong Hui-ying, was found in a nylon bag secured by yellow cable. Her head was at the bottom of the bag and her legs curled near its top. Her head was encircled with a piece of adhesive tape, which formed a single loop across her eyes and then two to three loops covering her throat and lower jaw area. The pathologist who conducted the post-mortem examination was of the opinion that the lower band of tape was distorted and appeared to have been dislocated from a higher original position, possibly her mouth. Her arms were tied together in a similar manner to those of her sister, except that the strand of cable securing her wrists and going round her neck was not twisted together behind her back to form a complete loop. Her ankles were also tied together with yellow cable. The cause of her death was suffocation.

The prosecution case

15.  It was the prosecution case that the applicant murdered all four victims, with money as the probable motive.  The prosecution maintained that the applicant’s claim that he had an affair with Madam Tong was not credible and was merely an attempt to bolster his evidence that Mr Tam had attacked him after discovering the affair.  The prosecution contended that the elaborate way in which the three female victims had been bound clearly showed a murderous intent on the part of the applicant.

The defence case

16.  The applicant gave evidence in his own defence.  He said that Mr Tam owed him money for the work he had done on the renovation of the Tams’ home, that Mr Tam had discovered that the applicant had an affair with Madam Tong and angrily confronted him about this and then attacked him, that in the heat of the ensuing struggle he had stabbed Mr Tam in a fit of anger.

17.  As to the other deceased, the applicant said that, when he broke the news of Mr Tam’s death to her, Madam Tong’s reaction of screaming and throwing things at him provoked him into tying her up but that he did not expect her to die as a result.  In the case of the two daughters, they have seen what he had done to Madam Tong and were screaming, and so he similarly tied them up but did not expect them to die as a result.  The applicant maintained that the deaths of Madam Tong and the two daughters were therefore accidental.

18.  So far as the bank cards and other property he took from the Tams is concerned, the applicant said that the idea of taking this did not occur to him until after the killings.

The issues at trial

19.  It was not disputed that the applicant had killed the four deceased.  In respect of Mr Tam, the issues for the jury were whether the applicant had the requisite intention for murder, whether he was acting in self-defence, and whether he acted under provocation.  In respect of Madam Tong, the issue was whether the applicant had the requisite intention for murder and whether he had acted under provocation.  The only issue in respect of the daughters was whether the applicant had the requisite intention for murder.

The grounds of appeal

20.  The grounds of appeal against conviction in the applicant’s notice of application were prepared by the applicant himself and consist of ten numbered points.  Mr Alex Lee, Senior Assistant Director of Public Prosecutions, who appeared for the respondent before us, submitted that the ten points can be summarised as raising the following grounds of appeal.

21.  First, that the applicant had no intention to harm any of the deceased and, in particular, he harmed Madam Tong and the two daughters unintentionally and accidentally.

22.  Secondly, in respect of Mr Tam, the Judge failed to direct the jury as to his cause of death, that Mr Tam had provoked the applicant, and that Mr Tam had attacked the applicant who had then merely acted in self-defence.

23.  Thirdly, in respect of Madam Tong and the two daughters, that Judge had failed to direct the jury as to their causes of death and that the verdicts of murder on counts 2 and 4 (in respect of Madam Tong and Tam Hui-ying respectively) were inconsistent with the verdict of manslaughter on count 3 (in respect of Tam Hui-man).

24.  Fourthly, the Judge erred in showing the photographs of the deceased to the jury.

25.  We agree with, and gratefully adopt, Mr Lee’s summary of the grounds of appeal.

Intention

26.  The Judge’s directions to the jury on the law as to what constitutes murder were standard and unobjectionable directions.  Insofar as he supplemented his oral directions with a handout, the contents of the handout were consistent with the oral directions.  He properly reminded the jury that the written directions should not assume a status greater than his oral directions which were of equal importance.

27.  It is also clear that the judge reminded the jury on numerous occasions that they were only to find the applicant guilty of murder if they were sure that the applicant had, at the time of the act or acts which caused the death of each of the deceased, the intention to kill that deceased or to cause that deceased really serious bodily harm.  The issue of whether or not the applicant had the requisite intention was therefore put squarely before the jury as a main issue on each of the four counts.

28.  It is clear from the jury’s verdicts on counts 1, 2 and 4, which were each unanimous verdicts, that they rejected the defence case in respect of each of Mr Tam, Madam Tong and Tam Hui-ying and that they were sure the applicant had the requisite intention for murder when he killed each of them.

29.  There is no issue concerning the manslaughter conviction on count 3 in respect of Tam Hui-man.  The applicant himself asserts in his grounds of appeal that he should have been convicted of manslaughter in respect of both counts concerning the two daughters.  We have no doubt that, if the killing of Tam Hui-man was not murder, it was manslaughter.  It was an admitted fact that the applicant killed her and there can have been no doubt that his actions which brought it about were intentional and unlawful and obviously dangerous.

Mr Tam: cause of death, provocation and self-defence

30.  We are satisfied that there was no issue as to the cause of Mr Tam’s death and the Judge correctly directed the jury that the cause of Mr Tam’s death was multiple stab wounds.

31.  The Judge correctly directed the jury that, in respect of Mr Tam, the real issues were provocation and self-defence.

32.  As to provocation, we are satisfied that the Judge’s directions, orally and in writing, were correct and adequate and it is clear that, by their verdict, the jury rejected the defence of provocation. They were entitled to do so.

33.  As to self-defence, we are likewise satisfied that the Judge’s directions, orally and in writing, were correct and adequate and it is clear from the jury’s verdict that they rejected the applicant’s case that, in killing Mr Tam, he had acted in self-defence.  Again, the jury was entitled to do so.

The causes of death of Madam Tong and the two daughters and inconsistent verdicts

34.  The Judge correctly directed the jury that the only issues, so far as Madam Tong was concerned, were whether the applicant had the requisite intention for murder when he did the act or acts which caused her death and, if so, whether he was acting under provocation.  Likewise, the Judge correctly directed the jury that the only issue, so far as the two daughters were concerned, was whether the applicant had the requisite intention for murder when he did the acts which caused their respective deaths.

35.  As in the case of Mr Tam, the applicant admitted killing Madam Tong and the two daughters and the causes of their respective deaths were not in issue.  In any event, the Judge correctly directed the jury as to the evidence regarding the causes of their respective deaths: suffocation in the case of Madam Tong and Tam Hui-ying; ligature strangulation in the case of Tam Hui-man.

36.  As regards the issues which were properly left to the jury in respect of Madam Tong and the two daughters, we are fully satisfied that the Judge correctly and adequately directed the jury on those issues.  It is clear, from the jury’s verdicts on counts 2 and 4, that the jury was sure that the applicant intended to kill both Madam Tong and Tam Hui-ying or to cause them really serious bodily harm; and in the case of Madam Tong that they were sure the prosecution had established that her killing was not a case of provocation.

37.  We turn to deal with the allegation of inconsistent verdicts.  This relates to the different verdict in respect of count 3, namely that the applicant was not guilty of murdering Tam Hui-man but was guilty of manslaughter in respect of her death.

38.  Inconsistencies in verdicts do not lead to convictions based on those verdicts being quashed unless the convictions are unsafe or unsatisfactory.  In any event, it is well settled that a conviction will be quashed on the ground of inconsistency with other verdicts if, and only if, it can be established by the appellant that the conclusion reached by the jury was one at which no reasonable jury who had applied their minds properly to the facts of the case could have arrived.  A verdict will not be one which no reasonable jury could have arrived at, if there is a rational explanation for all of the jury’s verdicts.  See, HKSAR v Sham Ying Kit [2000] 4 HKC 380 at 389E-G, 390I-391C and 395C-D.

39.  We are satisfied that there is no inconsistency in the jury’s verdicts between counts 2 and 4 on the one hand and count 3 on the other hand.  As noted above, the cause of death of Tam Hui-man was different to that of her mother and sister.  Furthermore, unlike Madam Tong and Tam Hui-ying whose heads were both covered by the applicant, Tam Hui-man’s head was not covered and, although there was evidence that her mouth had at some stage been sealed by adhesive tape, there was no such evidence in respect of the nose.  As between the two daughters, there was a material difference in that the applicant put Tam Hui-ying in a nylon bag and shoved her under the bed after tying her up and prior to burying her body.  The prosecution adduced expert evidence that, despite the presence of holes in it, the bag would create a confined irrespirable environment and that, given her posture and bound condition in the bag, Tam Hui-ying’s death was inevitable.

40.  In these circumstances, we are satisfied that the jury’s respective verdicts on counts 2, 3 and 4 cannot be said to be ones at which no reasonable jury could have arrived.  The prosecution case as to the applicant’s intentions in carrying out the killings of Madam Tong and the two daughters was based on inferences.  The verdict of manslaughter on count 3 is explicable on the basis that the jury was not prepared to draw the irresistible inference that the applicant had the requisite intention for murder solely from the way he had tied up Tam Hui-man.  Whereas, in respect of count 2, the jury had the additional fact that Madam Tong’s head had been completely sealed and, in respect of count 4, there was the additional fact that the applicant had put Tam Hui-ying into a nylon bag that would prevent her from breathing and make her death inevitable.

41.  We would add that the Judge carefully and properly directed the jury that each charge had to be considered separately; that even if the applicant was guilty of murder in relation to one particular deceased, he might still be not guilty in relation to another; or that, if he was guilty of manslaughter on one count, it did not mean he might not be acquitted on another count.  The jury’s verdicts in the present case are indicative of the fact that they conscientiously followed this direction.  In doing so and in arriving at verdicts which cannot be said to be ones at which no reasonable jury could have arrived, we cannot see any basis for challenging any of the verdicts as being unsafe or unsatisfactory.

The photographs of the deceased shown to the jury

42.  We are satisfied that the Judge did not err in allowing photographs of the deceased to be shown to the jury.

43.  There was no objection by the defence to the production of the photographs and in fact photographs showing the condition of the deceased upon excavation and during their post-mortem examinations were adduced as admitted facts.  In any event, we are satisfied that the photographs had a positive probative value, in that they showed material that bore on the issue of the presence or otherwise of the applicant’s intent when he killed the deceased, which was at issue in respect of each of the four counts of murder, which probative value outweighed their prejudicial effect.  Moreover, the Judge very properly warned the jury that the photographs were upsetting but that they should not allow the photographs to prejudice them against the applicant in any way.

Additional matters

44.  In his letter to the court dated 8 August 2011, the applicant states that he suffered from meningitis and cranial nerve disease when he was young.

45.  However, this was never raised at the trial and it would appear that this is the first time the applicant has raised these matters.  Nor is there any evidence that these alleged illnesses affected the applicant at the time of the killings.  These are not matters which can or should be taken into account on this application.

Sentence

46.  Another matter raised in the applicant’s letter dated 8 August 2011 is a request that the court substitute a definite sentence of imprisonment in place of the sentence of life imprisonment imposed by the Judge in respect of his convictions for murder (on counts 1, 2 and 4).  This is a plea which he developed at length in his oral submissions to the court.

47.  The applicant states that the murders were not planned but instead were committed on the spur of the moment due to a lapse of self-control.  He expresses remorse and indicates he has had suicidal thoughts.  He asks to be given a chance so that he may take care of Mr Tam’s aged mother and seeks a sentence with a definite term.

48.  The life sentences imposed by the Judge for the convictions of murder are sentences fixed by law and, in the circumstances, there can be no appeal against them.

Conclusion

49.  We are satisfied that none of the grounds of appeal against conviction advanced by the applicant has any merit and that there is nothing unsafe or unsatisfactory about the verdicts returned by the jury.

50.  There is no basis for interfering with the life sentences imposed by the Judge in respect of the applicant’s convictions for murder.