HKSAR v. Tam Ho Nam

FAMC No. 43 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC NO. 405 OF 2011)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ :

1.We indicated at the hearing that we would dismiss the application on the ground initially advanced but grant leave on the additional ground based on this Court’s recent decision in Liang Yaoqiang referred to below.  We now provide our reasons for dismissing the original application.

2.On 15 September 2011, the applicant was convicted of murder after a retrial.  He admitted killing his girlfriend, Ms Lau Shuk-fan, having attacked her with a chopper and inflicted horrific injuries on her, comprising at least 50 cut wounds.  Although in interviews with the police he had initially denied killing her with the necessary intent, such intent was not disputed at the trial.  The defence case was that he ought to be convicted of manslaughter by reason of provocation rather than murder.  Saw J[1] put this to the jury as follows:

“The prosecution says that whilst there is no direct evidence that the accused intended to kill or cause serious bodily harm to Miss Lau, that is the only reasonable inference you could draw from the evidence. ... Insofar as that is concerned, you might feel that, from what Mr Surman has said to you, that is not challenged because Mr Surman has indicated to you that it is the defendant’s case that you should convict him of manslaughter. If that be the defendant’s case, if that is the accused’s case - and that is what Mr Surman has told you - it would be, I suggest, open to you to properly then infer from the evidence as it is that there is an intention to kill or cause really serious harm and, likewise, that you are not being invited by the accused to draw any other inference.”

3.The applicant’s case was that he was provoked to lose his self-control as a quarrel he had with the victim escalated into blows and culminated in a frenzied attack by him upon her.  He had suspected her of having an affair with his elder brother and had pressed her with this accusation and sought to question her about what he took to be evidence of their having had sexual intercourse in the flat where they all lived. He testified that he had brandished a chopper at first to scare her.  He stated in evidence: “at the beginning, it was with a view to scaring her”.  He had said to her: “‘I give you one more chance to speak.  Did you actually have an affair with him, my elder brother?’”

4.Having been rebuffed by Ms Lau with denigrating remarks, there was a struggle in the course of which he inflicted wounds on her. He stated that he had desisted, only to be attacked by her striking him on the neck with the chopper.  This, he said, caused him to lose all self-control and to launch the fatal attack.  Saw J referred the jury to what the applicant had said in a video-recorded interview:

“At 442 we see that he describes how she struck him twice on the neck and the consequences of her doing that we see at 450 to 451, and he said, ‘I felt very, very angry, I could not control my emotion, I kept striking her with the chopper’. He goes on in those passages to give an account of how, having seized the chopper from her, he pinned her to the bed and chopped her multiple times.”

5.His Lordship summarised the applicant’s testimony as to his reaction to being struck from behind by Ms Lau as follows:

“At this point in time, he said, he could not constrain his emotions and he was in a state of frenzy. He threw himself onto Miss Lau. He grabbed the chopper that she was holding and snatched it away. He went out of his mind and chopped her indiscriminately. He did not know whether she had tried to defend herself or not because the situation was chaotic and, at one point in time, he had closed his eyes whilst he wielded the knife frantically.”

6.The scientific evidence indicated that Ms Lau had been struck many times when she was either sitting or crouching or lying on the lower bunk of a bunk bed, this being the only location where she was attacked.

7.In the light of that evidence, it is wholly unsurprising that the only issue canvassed at the trial was whether the applicant should be convicted of murder or of manslaughter on the basis of provocation.  There was no basis for any other verdict.  Accident was ruled out.  The evidence plainly justified an inference that he had intended at least to inflict grievous bodily harm on Ms Lau.  The question was whether he had or may have been provoked to lose his self-control so as to act with such intent and if so, whether a reasonable person would or might have done as he did. 

8.After his conviction, the applicant appealed to the Court of Appeal on the sole question of whether there had been a misdirection on provocation by the Judge failing adequately to make it clear to the jury that the defence was available if the provocative things said and done would “or may” have caused a reasonable person to lose self-control and to do as the applicant did.  The appeal was dismissed, the Court of Appeal[2] demonstrating how this had amply been conveyed to the jury.  His application for certification for the purposes of an appeal to this Court of a point of law regarding the provocation direction complained of was rejected on 26 October 2012.[3]

9.Some four years later, the applicant issued the present application for leave to appeal out of time.  He seeks to advance a ground never previously mentioned, suggesting that there has been a substantial and grave injustice because the trial judge did not leave to the jury the alternative verdict of manslaughter by an unlawful and dangerous act. 

10.There is no reasonable basis for that contention.  The motion for leave states that the applicant “suggested that he did not kill her with intent as he was only trying to scare her with a chopper”.  However, as noted above, what he said in evidence was that “at the beginning, it was with a view to scaring her”.  His frenzied attack was carried out subsequently after the quarrel had escalated.  He did not cause her death while acting merely with the intention of scaring her. On his version of events, his attack was mounted in reaction to her striking him in the neck and after he had become “very, very angry”.  He “pinned her to the bed and chopped her multiple times” in a rage.  It was plainly a case either of murder or manslaughter by provocation, as defence counsel rightly accepted.  Taking a view of the evidence most favourable to the applicant, there was no room for an alternative verdict of unlawful act manslaughter. 

11.As Chan PJ, giving the reasons of the Court in Ho Hoi Shing v HKSAR,[4] stated:

“Not every possible alternative, however inconsistent with or unsupported by the evidence, has to be placed before the jury. An alternative is to be left to the jury only if there is evidence upon which a reasonable jury might return a verdict on that alternative ... If it were otherwise, the jury may be confused or unnecessarily burdened with additional issues which do not stand the slightest chance of succeeding. This will not do justice to either the prosecution or the accused. ...

That is to say, the evidence which may be relied on to support an alternative verdict must not be so incredible or tenuous or uncertain that no reasonable jury could have accepted it; in other words, an alternative verdict should not be put to the jury if there is no evidential basis upon which a reasonable jury could have come to that alternative verdict.”

12.This is a case where no reasonable jury could have come to an alternative verdict in favour of unlawful act manslaughter. 

13.At the hearing, the applicant was given leave to advance a further ground for this application, namely:

“It is reasonably arguable that there is a further departure from the accepted norm in that the Trial Judge had failed to give proper direction to the jury on how to address the issue as to whether an ordinary person would have done what the Applicant did when considering the objective limb of the defence of provocation in the particular circumstances of the case, particularly in the light of the Applicant’s frenzied attack on the deceased with a chopper resulting in multiple deep wounds and the closing speech by prosecuting counsel which urged the jury to consider: ‘Would an ordinary person lose control and use a chopper to chop her to death? Chop her over 40 times while she was lying or crouching in the lower bunk.’ (see page 12E-G of the transcript of the Prosecution’s closing speech).”

14.In support of this ground, Mr Marash SC relied on this Court’s recent judgment in HKSAR v Liang Yaoqiang, FACC 9/2016 (7 February 2017),  and the suggested direction set out at paragraph 124 of that judgment.

15.Mr William Tam SC, appearing for the respondent, accepted that an appeal based on the new ground was reasonably arguable and did not resist the grant of leave.

16.We were satisfied that in this particular case a sufficient basis arises for the grant of leave on the additional ground relied upon.  We should emphasise that it is not in every “frenzied attack” case where provocation is relied upon that leave relying on Liang is to be granted.

17.The appeal will be heard on a date to be fixed.

Mr Daniel Marash SC, instructed by Morley Chow Seto, assigned by the Director of Legal Aid, for the Applicant

Mr William Tam, SC, DDPP and Ms Sabra Lo, SPP of the Department of Justice, for the Respondent