Chan Hon-tong v. The Queen
Read the full judgment text of CACC 141/1973 on BabelCite. This Court of Appeal judgment.
1. The appeal of this appellant was dismissed by the Full Court on the 26th of April following upon a hearing of two and half days and we intimated at that time that we would record our reasons at a later date.
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CACC000141/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 141 OF 1973 -----------------
----------------- Coram: Full Court (Blair-Kerr, S.P.J., Briggs & McMullin JJ.) Date of Judgment: 26th April 1973. ----------------- JUDGMENT ----------------- McMullin J. : 1. The appeal of this appellant was dismissed by the Full Court on the 26th of April following upon a hearing of two and half days and we intimated at that time that we would record our reasons at a later date. 2. The appellant, CHAN Hon-tong, was convicted on the 26th of February this year of the murder of a young girl called WONG Yuk-lin. The undisputed facts were that the deceased, a girl of about 18 years of age, had been working as a domestic servant for a Mrs. McLean at Flat No.4, Chung Hom Kok Government Quarters during the month of March 1972. On the 17th of that month Mrs. McLean left the flat as usual at about 7.30 in the morning having arranged with the deceased, who did not reside at the flat, to remain on the premises until she should return in the evening for the purpose of preparing her evening meal. Mrs. McLean returned from work at about 6.00 p.m. to find that a parcel of meat and some groceries which had been delivered earlier in the day were resting on the floor outside the main door of the flat. She rang the bell but when nobody answered she let herself in with her own key. There was no sign of her servant and one or two minor peculiarities in the appearance of the flat aroused her anxiety. Without searching further on her own she fetched a Mr. Mills who was her neighbour in the same block of flats and together they went through the rooms until they came to the store room near the amah's quarters. Mr. Mills opened the store room door and she then saw a foot and part of a leg clad in trousers which she recognised as those worn by her servant. She then at once left the flat and went to Mr. Mills' apartment and remained there until the police came. Meanwhile Mr. Mills by craning around the store room door was able to see the dead body of WONG Yuk-lin lying in the position shown in the photograph exh. P(G). He at once dialled 999 using the telephone in the flat and then went to fetch a Superintendent Harris, a friend of his who lived in the same block. 3. The Government pathologist, Dr. Frederick Ong examined the body before it was removed from the store room. The girl was lying on her back face upward with her leg spread wide. The body was fully clothed the left arm stretched out straight from the shoulder palm upward; the right arm being tucked beneath the body and drawn across it from right to left. Two knives had been driven into the front of the girl's throat and were still protruding there from two others were lying by the body one with a bent blade and one with a broken blade. Two pieces of the broken blade were later found embedded in tissues of the neck. All four knives were part of the equipment of the flat and were of a domestic character, one of those in the throat being a blunt broad-bladed cake knife. A length of light cord was found looped around both wrists and around the neck of the deceased but nowhere was it drawn tightly about the body. The hyoid bone was broken and Dr. Ong had no hesitation in ascribing manual strangulation as the cause of death. He was of the opinion that the knives had probably been driven into the throat immediately after the strangulation. There was no sign of sexual assault. Dr. Ong placed the time of death between 1 and 3 p.m. on the 17th. 4. The last person to see the deceased alive was a servant from the flat immediately above WONG Yuk-lan. She told the court that upon the 17th the murdered girl had come up to her flat bringing her something which she had purchased on her behalf. They had a conversation and the deceased left shortly after 1.20 p.m. and returned to her own premises. At about 2.00 p.m. WONG Yuk-lan went down to Flat 4 in order to borrow an electric iron. She was, however, unable to get in although she pressed the bell several times. She then returned to her own work in Flat 5 immediately above and at about 4.00 p.m. was approached by another delivery boy this time delivering groceries to Flat 4 who was unable to get in to that flat. At her direction he left the parcel outside the door where the meat had earlier been left by an other delivery boy. 5. Following upon the discovery of this brutal crime, a widespread and intensive police investigation commenced. This involved, amongst other matters. the taking of some 900 sets of finger prints. It would appear that virtually everybody living or working in the immediate vicinity was questioned. In the course of these investigations the accused himself was interrogated by the police. It would appear that he came into the police not solely by reason of the fact that he was employed as a part-time caretaker at a block of 12 flats known as 65-71. Chung Hom Kok Road situated about a hundred yards from the flat in which the murder took place. He was at the time of this event living in Western District, Hong Kong, with his wife and a small child and he used to go daily to work at those flats removing garbage, cleaning motor-cars and doing other jobs of the sort. According to hat he told the police, his usual hours of work were from about 6.30 a.m. until some time in the mid-morning When questioned on the 26th of March about his movements on the 17th of that month, he told D P.C. 7228 that he had completed his work that morning at about half past nine and had left the flat and returned home arriving there at about half past ten. His wife was then at work and he occupied himself with taking care of his daughter. Later his wife returned and he prepared food for the family and then took the child for a walk while his wife returned to work. He said that later on a+ half past five he and his wife went to the cinema. He was interviewed on a number of occasions subsequent to the 26th and on each occasion he gave substantially the same account of his movements on the day of the murder. 6. Presumably the police were checking upon the truth of the various accounts given to them by the many witnesses in the weeks following upon the event. Whether they had any reason to suspect the accused immediately after the murder it is not possible to say. He was interviewed on the 26th of March, on the 6th of April and on the 8th of April and it would appear that on those occasions the police had no information in their possession to indicate that he had told them anything untrue. On the 11th of April however they interviewed a Mrs. Rafferty who. at about the time of nurder, had been living in the very block of flats of which the accused had been caretaker. Her evidence was that she was directly asked by a police interviewer, in the course of these extensive inquiries, whether she recollected seeing the appellant upon the day of the murder. She then volunteered the information that she had seen him between five and six on the 17th of March sweeping the road just outside the main gate of the block of flats in which she lives and of which he was the caretaker. It was no doubt this information which caused the interest taken by the police in the movemerts of the appellant to increase sharply. On the following day his home premises and his quarters at the block of flats were searched and it was from the latter quarters on that day that the police seized the clothing subsequent scientific examination of which supplied the principal evidential basis of the prosecution case against the appellant. 7. From the outset the Crown had admitted that the case against the appellant was a wholly circumstantial one and unquestionably the most important item in the circumstantial chain by which it was sought to like the appellant with the committing of this murder was the fact that upon scientific examination of the clothing of the victim and of the appellant including a brown women sweater (exh. P.25) which had been seized by the police at the accused's caretaker quarters. woollen fibres of four different colours were found to be present on both sets of clothing. Similar woollen fibres were also found on the cord which had been bound around the girl's body. These were the findings of Mr. Edgley, the Chief Government chemist. who subjected all these articles to a thorough microscopic examination. The slippors of the dead girl were also examined and found to show the porsence of some coloured synthetic and woollen fibres but the core of the Government analyst's evidence upon which the prosecution based their case was in his finding upon the girl's cotton T-shirt of a number of woollen fibres of the following colours : black, white, turquoise. and brown/green while the appellant's sweater, Exh. P. 25 showed precisely the same combination of fibres. Both these sets of fibres were found among the debris shaker from the clothing by Mr. Edgley preparatory to examining the matter so obtained. The black and white fibres were respectively the dyed ...(illegible) undyed pertions of the strands composing the wool of which the appellant's sweater (exh. P.25) was itself made. The brown/green and the turquoise fibres came from some undetermined sources which was not any of the clothing either of the deceased or of the appellant. These fibres, from both sources, were subjected to chemical tests and to examination under both transmitted light and polartsed laght. The nature of all these tests was somewhat complicated and it involved comparison with control samples of fibres from other similar materials but Mr. Edgley's basic finding m resulting from the many tests he carrted out between the 15th of April and the end of what month was summarised in an answer given by him in examination-in-chief which appears at page 368 of the record :
After considerable discussion between counsel, and following the retirement of the jury to permit further debate and the taking of evidence from Mr. Edgley in their absence on the question, Mr. Edgley was permitted to stat his finding in the laguage of probability statistics. The disc was somewhat abstruse and certain books relating to such satat were cited by counsel but in the upshot it would appear that it was Mr. Edgley's opinion that at a very conservative estimate and busing himself both upon searches which he had made for the purposes of this case and similar searches made in the course of his forensic experience prior thereto, the l elihood of discovering on any two items on clothing by chance, and excluding contact between those two items, a combination of fibres similar to the identical combination found on the girl's clothing and on the appellant's sweater was considerably in excess of one in one hundred thousand. That in simplest terms would appear to mean that the chances are one hundred thousand to one against finding such a combination on two garments by chance. It should be noted that this answer (See page 382 of the record) was based solely upon the colour combination and it did not have regard to the fact that the fibres examined by the various chemical and other tests and whether they came from the accused's clothing or from the girl's T-shirt show a strong similarity quite apart from all questions of colour. Mr. Edgley was not asked to put the matter further but no doubt the implication of this evidence would be that if one were to consider not merely the question of the colour combination but also the fact that the set of fibres examined which had come from the deceased's clothing were. by the other tests identical in quality with the set of fibres examined from the sweater, exh. P.25 then the possibility that two such sets of fibres occurring by chance on two quite separate sources was very considerably more remote than the possibility indicated by the figure of one in one hundred thousand. 8. The learned Chief Justice put it clearly to the jury that they could not convict the appellant unless they were satisfied that this transfer of fibres between the two garments, the T-shirt and the sweater, had occurred by contact between those garments at the time the girl met her death and further that the appellant was wearing that sweater at that time. He carefully warned the jury that if they thought it was a reasonable possibility that the fibres had become transferred in this was by some previous chance encounter when either the appellant or somebody else was wearing that sweater that would be an end to the prosecution case. He summarised this part of his direction in the following terms:
He then went on to deal with what were in effect the other links in the circumstantial chain. Principal amongst these was the testimony of Mrs. Rafferty which if believed must necessarily destroy that part of the appellant's alibi which related to his being at the Fox Cinema (a very considerable distance from where Mrs. Rafferty said she saw him) at about 5.30 p.m. on the 17th of March. There was also the evidence of a Mrs. Lai a neighbour who used to take care of the appellant's daughter while he and his wife were out at their respective places of work. She was not able to pinpoint her own movements or those of the appellant on the exact day in question, but she told the court that she took care of the child in this way on every day of the week except Sundays and that these had never been an occasion upon which the appellant called to collect the child before 4 o'clock in the afternoon. This testimony was of course in direct collision with the appellant's statements to the police in which he had said that he had collected the child at half past ten on the morning of the 17th. Then there was the evidence of a Mrs. Chan who lived in the cubicle next to that of the appellant and who said that while the police were searching the premises on the 26th of March the appellant came to her and asked her to tell the police, if they questioned her, that he had been cooking meals and looking after his baby. Similar evidence was given by an ex-police constable called Wong who was an acquaintance of the appellant and who told the court that on more than one occasion in April the appellant had come to him and said that he was in trouble with the police and that he (the appellant) had told his wife to tell a lie. 9. Such was the chain of circumstantial evidence produced by the prosecution out of the matter made available by the police investigations. The appellant did not give evidence at the trial and no witnesses were called on his behalf. It should be added however that. following upon an unsuccessful submission of no case. Mr. Sedgwick. for the defence, sought to introduce evidence from a Dr. Pang, a Government psychiatrist employed in the Prisons Department, who had examined the appellant at the request of the prosecution. The purpose in seeking to introduce this evidence was two-fold: firstly, to show that under hypnotic drugs coupled with methydrine (sometimes refer to as the "truth drug") the appellant had given to the doctor substantially the same account of his movements an the 17th of March as that which he had given in his various statements to the police; secondly, to prove that in his statements under these conditions made to the doctor the appellant had insisted that at the time of the murder he was in the cinema with his wife. The significonce of this latter statement was, of course, that the appellant had claimed to have been in the cinema between 5.30 p.m. and 7.00 p.m. whereas the evidence in the case indicated clearly that the killing had occurred at between one and two p.m. The suggestion for the defence was. therefore, that if the accused really was the killer he would have known what hour to cover by way of alibi and would not have focussed his attention upon an irrelevant hour. The learned Chief Justice ruled that such evidence was inadmissible. This matter was made the subject of one of the grounds of appeal but we may say at once that we consider that there was no substance in it. Mr. Sedgwick does not deny that the trend of recent authority in all the common law jurisdictions, including the Dominions and the United States of America, is against the admission of such evidence. The reasons why courts are reluctant to admit such evidence were enumerated by the court in the New Zealand case R. v. mckay(1) and are conveniently summarised at page 646 of the Criminal Law Review for 1967 in an article on the case of McKay by the senior lecturer in law of Victoria University, Wellington. Those reasons are, first, that evidence of previous statements to establish the consistency of the party either in civil or criminal proceedings is inadmissible; secondly, that such evidence would in any case be hearsay and would not fall within any of the recognised exceptions to the hearsay rule; thirdly, that to admit such evidence in proof of the innocence of the accused would be to substitute "trial by psychiatrists, for trial by jury"; and fourthly, that in the present state of knowledge in respect of such evidence science had not yet provided adequate guarantees of the accuracy of the tests involving truth drugs. Notwithstanding some criticisms of these four propositions made by the writer of that article we are of the opinion that these criticisms are valid in the present state of knowledge concerning such tests. It may, of course, conceivably be that a body of learned scientific opinion may in the future develop concerning the reliability of evidence obtained under drugs which will be of so cogent a nature that the court will ultimately be justified in creating yet a further exception to the hearsay rule. We do not think that there is any validity in the distinction Mr. Sedgwick sought to draw between cases where (as in McKay) the accused seeks both to initiate the creating of this evidence as well as the introduction of it at the trial and cases where, as in the present case, such evidence had been created at the instance of the prosecution. It is not true to say. as counsel said, that this statement to Dr. Pang should be regarded as not having been made to a third party because Dr. Pang had taken the statement at the instance of the prosecution. It was a non-confessional statement and was therefore as effectively barred as would any self-serving statement made by the accused to his own practitioner. There is likewise nothing in the suggestion that the rule which obliges the prosecution in tendering a confessional statement to introduce the whole of such statement even though it may contain exculpatory matter can be extended so as to oblige the prosecution to introduce every separate statement in a series of statements made at any stage of the investigation to anybody connected with the prosecution merely because certain of such statement have specifically been relied upon at the trial. Finally on this point it should be observed that the fact that the appellant in his statement to Dr. Pang would appear to have focussed upon the hear of 5.30 p.m. as though that were the hour of the killing (a fact which on its own might possibly support an inference of innocence) is of very small importance in view of the fact that the statement to Dr. Pang was made by the appellant subsequent to the committal proceedings in the course at which the appellant had the opportunity of apprizing himself fully of the nature of the case being made against him. It is inconceivable that at the end of those procee dings the appellant could have been in any doubt that the time which was regarded by the prosecution as the time of the killing was between 1 and 2 p.m. If indeed it was true that in his statement to Dr. Pang the appellant appeared to regard that vital hour as being between 5.30 p.m. and 7.00 p.m. that can readily be explained as being directed to that part of the period covered by his alibi of which he considered he had the strongest evidence to suppert It should be noted however that his wife was, in fact. never called. 10. Counsel the complained that although the learned Chief Justice had warned the jury that if they did not accept Mr. Edgley's testimony they were not entitled to convict on the other circumstantial factors upon which the Crown relied and that even if they were satisfied that the Crown had preved his alibi to be unsubstantial that they nevertheless were not entitled to convict him upon his having told lies in that regard. He nevertheless had failed to point out that if they were left in reasonable doubt as to whether or not his alibi had been broken they likewise must acquit. It is true that the learned Chief Justice did not put the matter to the jury in so many words but the point is insubstantial. The jury had been warned in the usual way that they must not convict if they entertained a reasonable doubt as to the guilt of the ...(illegible). It is scarcely conceivable that if they did entertain a reasonable doubt as to whether or not he was with has child in his own home at the time the murder was committed that they would still hare convicted him. Mr. Caird for the Crown indeed put it to us that the learned Chief Justice in representing the Crown's evidence concerning the alibi as being capable merely of affording corroborative weight to Mr. Edgley's evidence, should the jury accept that, was putting the matter altogether too favourably to the defence. In this connection he cited the case of R. v. Junes (2) where MacKay J.A. at page 160 rejecting a contention that the trial judge had failed to give a sufficient direction in respect of the need for the corroboration of a single identifying witness. went on to say:
That is a very strong proposition and Mr. Caird concedes that it appears to be obiter. Moreover it may be thought that it somewhat extends the principles applied in Mawaz Kahn in which case two acused persons not only told lies but did so in conspiring to concoct a common answer to the charge. In view or what has been said already it is unnecessary for the purpose of this ground to consider whether or not that proposition correctly reflects the present state of the law in this territory. 11. It was made the subject of a further ground that although the learned Chief Justice had warned the jury (in a passage already quoted above) they must acquit if they thought it was a reasonable possibility that the fibres came upon the clothes of the girl from some encounter which took place prior to the time of killing, that he nevertheless insufficiently, dealt with the evidence of Mr. Edgley which founded defence counsel's submission in that regard. We think that there was nothing in this contention. It is true that in answer to questions put by counsel for the Crown concerning the fibres found upon the cord and upon the slippers Mr. Edgley did say that the fibres could have been deposited on those articles by secondary contamination through contact with the clothing of the deceased and that they need not therefore have been deposited at the time of the killing. It was counsel's point that since such a secondary contamination was shown to be a reasonable possibility this fortified the contention that it had not been conclusively proved that the fibres found upon the girl's clothing, even if they come from the sweater. P.25, must have been deposited there by a person wearing the sweater at the time of the murder. Certainly the Crown sought to draw from Mr. Edgley's evidence the inference the the fibres upon the sweater exh. P.25 were deposited at the time of the killing while that sweater was being worn by the killer. But the important possibility, from the defence point of view, was put in clear terms to the jury in the summing-up viz: that the contact which caused the transfer of the fibres from P.25 to the girl's clothing could have taken place by some contact with the wearer of that sweater and the girl at some time and upon some other occasion prior to the killing. That was an evident possibility even apart from the passage in Mr. Edgley's evidence upon which counsel for the defence sought to rely. Indeed it is difficult to see how Mr. Edgley's evidence concerning the possibility of cross-transfer between the cord, the slippers and the T-shirt could have done much either to illuminate or to eliminate the possibility that the contact which caused the transfer of the fibres from exh. P.25 to the girl's clothing and nothing to do with the killing. 12. Then it was said that the learned Chief Justice exceeded the bounds of permissible comment in deuling with the appellant's failure to give evidence at the trial. A useful example of a comment of this sort of which was held by the Court of Appeal (Criminal Division) in England to have exceeded judicial propriety is to be found in the recent case of R. v. Sparrow(3). It is unnecessary to enter into the facts, the argumants or the principles set out in the report of that case beyond noting that it endorses the opinion of Lord Parker C.J. in Reg. v. Bathurst(4) to the effect that juries must not be told that the mere fact that an accused person has failed to give evidence on his own behalf is to be equated with guilt of the offence charged. In Reg. v. Sparrow the trial judge had several times commented in extremely strong terms on the fact that the prisoner had failed to give evidence and these comments might be said to have drawn to a climax in a passage where he said:
It was at this point that he was said by the Court of Appeal to have overstepped the limits of justifiable comment and that the should not have said what he did. It should be noted however notwithstanding this fact the Court refused to in ...(illegible) with the conviction. It need only be added that nowhere in the passages in the summing-up to which counsel has drawn our attention, and which appear between pages 520 and 523 of the record, did the learned Chief Justice in the present case go anything like so far. The terms in which the learned Chief Justice commented on the failure of the appellant to give evidence though strong were in the view of this court fully justified by the circumstances of the case. 13. The foregoing grounds which have been discussed are all subsumed in the final ground, ground seven, in which it is said that the verdict of the jury in finding the appellant guilty of murder was unsafe and unsatisfactory. For the reasons given we find nothing of substance in those individual grounds. 14. There remains however one ground of appeal (ground No. 1) which, in our view, in the only ground to raise a matter of substance. The complaint here is that since the learned Chief Justice did not explicitly define the elements of the charge of murder the jury were left without instruction on a matter of primpory importance to their decision in that they were not warned that they should not convict unless they were satisfied; not only that the appellant was the person who had killed the deceased, but also that the act of killing was voluntary, unlawful, and with intent to cause death or grievous bodily harm. Counsel for the defence at the conclusion of the summing-up had asked the learned Chief Justice to supply this deficiency by a definition given in the usual terms but to this invitation the learned Chief Justice. addressing the jury, replied as follows:
We think that little need be said about this matter. Clearly the learned Chief Justice took the not unreasonable view that, provided the jury were satisfied that the appellant was the person who had strangled the girl to death and then had inserted four knives violently in her ueck thereby inflicting wounds which, on their own, were more than sufficient to have caused her death, they could not come reasonably to any conclusion other than that the act which caused her death was voluntary, inexcusable, and done with the intention at least of causing grievous bodily harm. Mr. Caird coneedes that, apart from some doubtful instances culled from the reports of proceedings in certaia of the Famous British Trials series, he has been unable to find any case in which the customery direction on the elements cont titating the crime has been mitted. Mr. Sedgwick does not deny that there way be circumstances in which it is proper for a trial judge to direct the jury that they must either acquit altogether or else convict of the offence charged and are precluded from considering any alternative verdicts (which was of course the effect of the learned Chief Justice's direction in the present case.) He maintains, however, that the deceded cases show that such "directions to convict" are only legitimate in cases where the direction proceeds upon the assumption of an accepted state of facts. In counsel's submission, even if the jury were satisfled that it was the accused who had killed the girl, the question whether the killing had been done with the necessary intention to constitute the crime of murder was one to be answered by the jury by way of inference from the primary facts and was not to be treated as though the ...(illegible) accepted primary fact. While therefore it might be true to say that the judge was correct not to leave manslaughter to the jury on any such basis as provocation, accident or diminished responsibility since there was no evidential basis for such a finding; and while it would also be true to say that there was nothing in the evidence to suggest that the killing was the result of necessary self-defence, automatism or insanity, neverthelest the question of the intention with which the injuries were inflicted was a question of fact to be decided by the jury. Technically speaking this is no doubt the correct view and we think the learned judge was, with respect, wrong not to have defined the elements of the crime. But in a case such as the present the failure to give that direction is so nearly not an error at all that we think the application of the proviso can only be considered as technically necessary. Whether it be true as Lord Goddard thought (in a passage quoted by Lord Dsevlin in his essay "Trial by Jury") that the jury is privileged to return a perverse verdict if it so wishes, a verdict which would have left the accused guilty of the killing but not guilty of murder in the present case would have been not so much perverse as grotesque. We had therefore no hesitation in applying the proviso. For these reasons the appeal was dismissed. Representation: Sedgwick instructed by W.K. Lore & Co. for appellant. B.T. Caird C.C. and P. Nguyen C.C. for respondent. (1) (1967) N.Z.L.R. 139 (2) Canadian Criminal Cases 1971 153. (3) 3 Weekly Law Eeports 1973 488. (4) (1968) 2 Q.B. 99. |