The Queen v. Kwong Choi-hing

CACC000153/1983

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 28th April 1983

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JUDGMENT

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Silke, J. A.:

1. The appellant, Kwong Choi Hing, was convicted of murder after trial by jury.

2. On the 23rd May 1982, about 4 o'clock in the afternoon, the appellant was seen outside a flat on the 14th floor of a building in Lockhart Road embracing a female. He was seen by a man, Lam. The woman rejected his advances and offered him money. He had at that time a knife upon him.

3. The man, Lam, also advised the appellant to stop by saying "Don't". But Lam became frightened and disappeared into the flat in which both he and the man - the appellant - had separate cubicles. He came out from the flat a short time later and saw the appellant and the girl still outside. He also saw some blood upon the wall. Lam became even more frightened and disappeared completely out of the picture without taking any further action. He attempted to deny in the first instance to the police that he had seen these events but later did give evidence upon them.

4. Another person saw a pool of blood on the floor outside the flat at about 5:15 that evening together with a broken pair of spectacles, a handbag and a broken watch. A report was then, as I understand it, made to the police and the police arrived.

5. When they arrived at the flat they rang the bell - there was no answer - they then kicked upon the door. The appellant inside the flat threatened to set fire to the premises and kerosene was smelt.

6. Subsequently he agreed to the admission of the police upon three conditions. The mother of the appellant arrived at the premises, the door was opened and upon entry the police found bloodstains.

7. The appellant told the police that a woman was tied up and he asked them to make arrangements to take her down. It is at that point that the naked body of the  girl was seen.

8. Her head was covered with her pantyhose. Both cups of her brassiere were stuffed into her mouth and its strap was tied round the back of the girl's  neck so tightly as to leave a ligature mark. There were straps around her hand, her hands were tied behind her back and in turn tied to her feet. She was hung up upon the hinge of the door in this doubled-up position with the elevation of her head towards the floor, approximately one foot from it. Resuscitation was attempted but without success. There was no pulse and no breathing.

9. The appellant subsequently made certain statements in which he admitted using force upon the girl. There was clear evidence both from Miss Hamilton, the Chemist, and from the forensic pathologist that there had been a violent struggle as between the appellant and the girl. The actual cause of death was discovered upon a pathologist's examination to be suffocation.

10. There was no attempt to deny the killing of the girl. The defences raised were, first of all, that there was no intention to kill and , secondly, that the appellant came within the provisions of section 3 of the Homicide Ordinance and should be convicted of manslaughter upon the basis.of diminished responsibility.

11. The only ground of appeal argued before this Court is that the learned judge misdirected the jury as to what would be capable of amounting to grievous bodily harm and that he suggested in his summing-up that merely gagging the victim would be so capable.

12. It is conceded by Mr. Young, who appeared for the appellant in this Court and in the Court below, that at an early point in the summing-up a correct and proper definition of grievous bodily harm was given. The learned judge said:

"Grievous bodily harm, members of the jury, means no more than serious bodily injury."

13. Mr. Young takes issue with a subsequent passage in the summing-up which reads as follows:

"Manslaughter is the unlawful killing of a human being without the intention to kill or to cause serious bodily harm. I would have thought, members of the jury, where you find a gag stuffed into somebody's mouth that that by itself would have constituted serious bodily harm. But there again I am now commenting on the facts and if you don't agree with what I say please feel free to disregard what I say on them. It is a matter for you."

14. After the jury had retired they returned and sought further directions from the Court. The question they posed was this:

"Would it be possible for your Lordship to provide a legal interpretation of grievous bodily harm, as distinguished by (1) mental stress, (2) broken limbs, (3) the fact that a young girl of 20 was sexually assaulted?"

In answer to that the judge gave an unimpeachable direction  as to what constituted serious bodily harm following precisely on the lines of the DPP v. Smith ⁽¹⁾.

15. Mr. Young also drew our attention to the fact that Counsel for the Crown in his closing address to the jury made reference to the, if I may so call it, "discredited" direction on grievous bodily harm by talking of "danger to the health and comforts" of the person to whom the harm was caused.

16. It is correct that the trial judge did not specifically point out to the jury that this particular reference to "danger to the health and comfort" was incorrect. But he did specifically direct them, and in the correct manner, as to what did constitute grievous. bodily harm. He not only directed them at an early stage but also at a very late stage after they had come back to ask their question. I would accept that the jury's question does tend to suggest there to have been some confusion in their minds.

17. But that having been said, the passage complained of as to a gag stuffed into someone's mouth itself constituting bodily harm was clearly a comment by the trial judge. It was the very issue which the jury had to decide. But having been properly directed it was left to them.

18. The second line of defence - diminished responsi-bility - was rejected by the jury. It is clear that the appellant was not a normal person but is equally clear that it was open to the jury to find, upon the testimony of the two expert witnesses who gave exhaustive evidence on the matter, that he was not of such abnormality of mind as would bring him within section 3 of the Homicide Ordinance.

19. We think that the directions to the jury were correct. We think that the comment of the trial judge as to gagging was such that it did not deprive the jury of their right to decide the issue.

20. In those circumstances we do not think there is substance in the ground of appeal. The appeal is therefore dismissed.

(1)    (1961) A.C. 291

Representation:

Christopher Young, Esq. assigned by D.L.A. for the appellant.

P. Duncan, Esq. for Crown/ Respondent.