HKSAR v. Ngai Hon Kwong
Read the full judgment text of CACC 32/2019 on BabelCite. This Court of Appeal judgment was delivered on 1 April 2021.
1. The applicant was convicted, on 18 January 2019, before Deputy Judge Bruce SC and a jury, of murdering Cheng Kong Sang (“the deceased”) on 12 June 2013, inside the 1 st floor flat of an address in Tak Ku Ling Road, Kowloon City, Hong Kong, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. He subsequently applied for leave to appeal against his conviction.
Cited by 2 cases · Cites 5 cases
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CACC 32/2019 [2021] HKCA 496 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 32 OF 2019 (ON APPEAL FROM HCCC NO 78 OF 2016) ________________________
________________________ Before: Hon Macrae VP, Pang JA and A Pang J in Court Date of Hearing: 1 April 2021 Date of Judgment: 1 April 2021 Date of Reasons for Judgment: 14 April 2021 __________________________________ R E A S O N S F O R J U D G M E N T __________________________________ Hon Macrae VP (giving the Reasons for Judgment of the Court): 1.The applicant was convicted, on 18 January 2019, before Deputy Judge Bruce SC and a jury, of murdering Cheng Kong Sang (“the deceased”) on 12 June 2013, inside the 1st floor flat of an address in Tak Ku Ling Road, Kowloon City, Hong Kong, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212. He subsequently applied for leave to appeal against his conviction. 2.At his appeal on 1 April 2021, we acceded to his application and, in accordance with our powers exercisable under section 83A of the Criminal Procedure Ordinance, Cap 221, we substituted a conviction for manslaughter by gross negligence in place of his conviction for murder. Having heard further submissions as to sentence and mitigation from the applicant’s counsel, we passed a sentence of 12 years’ imprisonment in substitution for the original sentence of life imprisonment. We also indicated that we would hand down the reasons for our decision in due course. In order to explain the conclusion to which we came, it is necessary to set out the history of this matter in some detail. 3.The appeal in the present case derived from a conviction after a retrial. The applicant had been through two trials, in both of which he was convicted of the offence of murder. The first trial took place before Deputy Judge Stuart-Moore and a jury, resulting in his conviction on 28 October 2014. He appealed to this Court (differently constituted) on the principal ground that the judge had failed to direct the jury that they could convict the applicant of the lesser offence of manslaughter by gross negligence. On 5 February 2016, the Court allowed his appeal and ordered the applicant to be retried on a fresh indictment[1]. 4.In the course of its judgment allowing the appeal, the Court said this[2]:
5.It may further be noted that the Court on that occasion also found that the judge at the first trial should not have directed the jury on the availability of an alternative verdict of manslaughter by a dangerous and unlawful act[3]. 6.In due course, and pursuant to the Court’s order, the applicant was retried before Deputy Judge Bruce SC and a jury. The applicant chose to be unrepresented throughout his second trial. The evidence was essentially the same in the second trial as it had been in the first, save that one of the more important witnesses in the flat at the time claimed at the second trial, at least in examination-in-chief, that she was unable to see the applicant doing anything with a bottle in relation to the deceased before the fire broke out[4]. Nevertheless, the evidence which grounded the alternative verdict of manslaughter by gross negligence derived in each trial from a combination of what the applicant had said in his video recorded interview and in his oral evidence. 7.At his video recorded interview, the applicant stated that on the day in question, he was intending to clean a sewing machine in the living room with some isopropyl alcohol, which was kept in a bottle inside the flat. He therefore picked up a bottle of what he thought was isopropyl alcohol and removed the top of the bottle to smell what it was. As he was walking with the opened bottle, he tripped on something on the floor and spilt the contents over the deceased, whom he thought was asleep in a chair, although he could not be sure. A fire erupted almost immediately. Initially, he claimed the deceased was smoking, which was rather unlikely if he was asleep; and he denied that he himself had been smoking. 8.In his oral evidence, the applicant essentially gave the same account that he had spilt the contents of the bottle of alcohol but, rather than spilling it over the deceased, he claimed that it had landed on the floor near the deceased. He maintained that he had then intended to go to the balcony to fetch a mop to soak up the alcohol. However, on his way to the balcony, he saw a bottle of “Ice” (the dangerous drug, methamphetamine hydrochloride) on a desk and decided to take one or two puffs from the bottle. In order to do so, he applied a naked flame to the bottle and suddenly the deceased erupted in flames. He explained that he told the interviewers in his video recorded interview that a cigarette may have caused the fire because he dared not admit to the police that he had been smoking dangerous drugs at the time. 9.Clearly, if one puts these two accounts together, the applicant was contending that he had accidentally spilt isopropyl alcohol over or near the deceased and then, knowing what he had done, ignited a naked flame in the immediate vicinity in order to consume dangerous drugs, which resulted in the ensuing conflagration. The essential difference between the parties at trial was that the prosecution alleged that the applicant had deliberately thrown the isopropyl alcohol at the deceased and then somehow ignited a naked flame knowing what he had done, whilst the defence claimed that the applicant had accidentally spilt alcohol over or near the deceased and then ignited a naked flamed knowing that alcohol had been spilt in his immediate vicinity. As we have mentioned, the lady witness inside the flat who, at the first trial, supported the prosecution allegation that the applicant had acted deliberately, did not come up to proof on this issue in examination-in-chief. Rather unwisely, the applicant introduced this evidence by way of cross-examination of what she had said in the first trial. This latter aspect of the case has given rise to a second ground of appeal, which we shall touch on later. 10.The judge was, therefore, correct to direct the jury on the alternative verdict of manslaughter by gross negligence. However, it is directions of law that have given rise to the first ground of appeal argued by Mr Cheung, who now acts on the applicant’s behalf. Having properly set out the elements of the offence, with which Mr Cheung takes no issue, and indeed such directions are based upon Specimen Direction 63A of the Specimen Directions in Jury Trials promulgated by the Hong Kong Judicial Institute, the judge continued[5]:
Pausing here, it will be noted, at this stage, that the judge placed no gloss on the way the act of splashing (or spilling) the isopropyl alcohol came about: the act of splashing (or spilling) could have been done either deliberately or accidentally. 11.However, the judge went on to suggest that such a verdict of manslaughter by gross negligence could only be made out if the applicant’s splashing (or spilling) of the isopropyl alcohol on the deceased had been deliberate[6]:
It is accepted by Mr Arthur, on behalf of the respondent, that the judge’s type-written directions, which were handed to the jury during his summing-up, were consistent with his oral instructions, save that the word “deliberately” was used twice (in his type-written directions) rather than once (in his oral instructions). The full written directions read[7]:
12.Mr Cheung’s first ground of appeal is simple. A verdict of manslaughter by gross negligence did not require the splashing (or spilling) of isopropyl alcohol by the applicant onto the deceased to be “deliberate”. The Specimen Direction does not anywhere use the word as an element of the offence; nor did the Court in its judgment allowing the appeal against conviction in the first trial qualify the applicant’s splashing (or spilling) as a deliberate act, when it clearly knew that the applicant was contending that it had been accidental. Moreover, it was never the applicant’s case that wherever the alcohol was spilt, it had been done deliberately. Accordingly, there was a misdirection by the judge resulting in the jury being deprived of an obvious alternative verdict for which there was, as the Court put it in the appeal from the first trial (which finding was equally applicable to the second trial), “an abundance of evidence to support it”. 13.Mr Arthur accepted that the judge did use the word “deliberate” when it should not have been used, but submitted that it would not have prejudiced the defence. He pointed out that the judge had correctly set out the elements of the offence of manslaughter by gross negligence in his summing-up in accordance with the appropriate Specimen Direction, and the impugned passages were simply a way of assisting the jury by applying the offence to the evidence. 14.The difficulty with Mr Arthur’s argument is that the judge was also making it clear that the only basis of finding manslaughter by gross negligence in the circumstances of this case was if the applicant had deliberately splashed alcohol over the deceased; when his defence in his video recorded interview and oral evidence was that the act of splashing (or spilling) was accidental. We note that in his type-written instructions, albeit not in his oral directions, the judge used the word “finally” at the beginning of this section of his summing-up, which reinforces the impression that they were conditions which must be present before the jury could bring in the alternative verdict. 15.However, whether the act was done deliberately, perhaps even in a fit of pique, or accidentally when he tripped over something on the floor, the applicant had placed the deceased in a life-threatening situation, which “would have continued until the applicant removed the risk of harm”[8]. Instead, he “acted in a way that ensured the potential harm was realised”[9]. The effect of using the word “deliberate” was particularly unfortunate, because it limited the viable options that were open to the jury as verdicts in this case. 16.It was for these reasons that we decided the verdict could not stand and that the appropriate course was to substitute a verdict of manslaughter by gross negligence. It should be remembered, and it was not disputed by the witnesses, that the applicant and the deceased had been close friends for many decades. As the judge reminded the jury, several witnesses had testified to a long-standing and affectionate friendship between the two men[10]. It was also an admitted fact that it was the applicant who had made the ‘999’ telephone call to the police following the incident[11]. Whilst, as Mr Arthur submitted, even close friends may resort to drastic or extreme actions during a quarrel, which is then almost immediately regretted, the basis of a conviction for murder in such circumstances was a narrow one; particularly against a background of drug taking by the participants. 17.Unfortunately, although the examination-in-chief of an important witness to events inside the flat was more favourable to the applicant than it had been at the first trial, the applicant, who was unrepresented, succeeded in persuading the judge that he should be permitted to cross-examine the witness on her previous evidence at the first trial. This was not only an extremely unwise course to take, it was very damaging for the applicant, since it managed to do what the prosecution had been unable to achieve in examination-in-chief and establish that the witness had heard the applicant swear at the deceased, splash liquid over his head twice and set it alight[12]. Mr Cheung has raised, as a second ground of appeal, a complaint that the judge erred in this trial by admitting the evidence and transcript of the witness’s evidence from the first trial. We should make clear that we did not find it necessary to resolve this ground of appeal, although it appeared to be reasonably arguable, and we did not, therefore, hear full argument on the issue. It became unnecessary to determine this ground, since we were satisfied that there had been a material misdirection in respect of an obvious and viable alternative verdict of manslaughter by gross negligence. 18.Having substituted a verdict of manslaughter by gross negligence, we then invited submissions on sentence. Mr Arthur accepted that there were no comparable cases in a sphere of criminal sentencing which was relatively rare; while Mr Cheung directed our attention to the Definitive Guideline of the Sentencing Council for England and Wales to suggest that the present case fell between medium culpability (3-7 years’ imprisonment) and high culpability (6-12 years’ imprisonment). He also submitted that we should sentence on the basis that this case was not concerned with the deliberate creation of a risk. 19.We should make clear that we did not accede to Mr Cheung’s proposition that we should sentence on the basis of a particular permutation of manslaughter by gross negligence which was not, but should have been, left to the jury. It must be a matter for this Court, in all the circumstances, to look at the evidence and the issues in the case and reach our own conclusion as to the applicant’s culpability when fixing the appropriate sentence for the substituted offence. Furthermore, we were unimpressed by reliance on sentencing quantum (as distinct from sentencing principle) that may be applicable in another jurisdiction. As Silke VP remarked of sentencing cases in England and Wales in R v Lo Bing Sun[13],which concerned an offence of manslaughter by a dangerous and unlawful act:
This statement was referred to with approval by two of the judges of the Court of Appeal in the leading case of HKSAR v Kilima Abubakar Abbas[14]. It was also recently endorsed by the Court in HKSAR v Lai Chun Ho[15], a case of manslaughter by gross negligence, in which a large explosion had been caused, killing three people, when the defendant decided to do some work he was not qualified to do on the LPG tank of a taxi in the garage on the ground floor of a building. The Court had prefaced its endorsement of Silke VP’s remarks by observing[16]:
20.The deceased in the present case received horrific burns to 70% of his entire body, from which he died two weeks later. The causing of a fire by way of gross negligence inside the unit of a residential building poses obvious and extreme dangers for anyone else who may happen to be in that unit or, indeed, in the rest of the building. There must be a significant element of deterrence for those who create such dangers in any building, let alone a residential one. 21.The applicant is not entitled to any discount from an otherwise appropriate starting point. Although there was a hint of an approach to “sound out” whether the prosecution might consider accepting a plea to manslaughter well before trial, it never developed into a formal plea on the court record of manslaughter by gross negligence. Nor did the applicant enter such a plea at his trial: indeed, he fought the case on the basis that he should be acquitted altogether. These circumstances came nowhere fulfilling the strict criteria for discounts, which have recently been laid down by this Court in HKSAR v Lam Kai Man[17]. 22.The applicant is no stranger to the law, having been before the courts on no less than 32 previous occasions for a variety of criminal offences, including offences of violence. There is no significant mitigation in this case at all. The fact that he was a drug addict, or had been consuming drugs at the time, does nothing to mitigate the offence: indeed, if he precipitated the conflagration which caused the death of the deceased by using a naked flame to smoke “Ice”, then his position is plainly aggravated. In all the circumstances, we are satisfied that the appropriate sentence after trial should have been 12 years’ imprisonment. 23.Having substituted an offence of manslaughter by gross negligence for that of murder, we accordingly impose upon the applicant a sentence of 12 years’ imprisonment for the substituted offence.
Mr Michael Arthur and Ms Jacqueline Lam, counsel on fiat, instructed by the Department of Justice, for the Respondent Mr Eric TM Cheung, solicitor advocate, and Mr Jason Kung, instructed by ONC Lawyers, assigned by the Director of Legal Aid, for the Applicant [1] HKSAR v Ngai Hon Kwong [2016] 2 HKLRD 149. [2] Ibid., at paras 72-81. [3] Ibid., at para 77. [4] AB, p 443G-N. [5] AB, p 43A-G. [6] AB, p 43H-S. [7] AB, p 928, para 19. [8] Ngai Hon Kwong, at para 72. [9] Ibid., at para 73. [10] AB, pp 109B-110D. [11] AB, p 10, para 18. [12] AB, pp 448K-450K. [13] R v Lo Bing Sun (Unrep., Crim App No 660/1993, 23 May 1994); [1994] HKLY 423. [14] HKSAR v Kilima Abubakar Abbas [2018] 5 HKLRD 88, per Lunn VP at [53]; per Macrae VP at [71]. [15] HKSAR v Lai Chun Ho [2019] 1 HKLRD 4. [16] Ibid., at [31]. [17] HKSAR v Lam Kai Man [2020] 4 HKLRD 107, at [52]-[58]. |
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