Tsoi Fai Kwong v. R.

CACC000168/1993

IN THE COURT OF APPEAL

1993, NO. 168
(Criminal)

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Coram: Hon Yang CJ, Macdougall VP and Bokhary JA

Date of hearing: 5 January 1994

Date of judgment: 5 January 1994

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J U D G M E N T

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Hon Yang, CJ:

1. This is an application for leave to appeal against a conviction of murder. The applicant was legally aided at the trial. He had the advantage of being represented by Mr Duncan Percy. For the purpose of this application, however, Mr Percy has indicated to us that he is unable to argue any grounds of appeal, though he places himself in readiness to assist the court and the applicant if the applicant should wish to pursue the appeal on his own. This the applicant has done.

2. In his written grounds of appeal, he simply complains that the judge has misdirected the jury. However, in his submission before us this morning, he advances four grounds of appeal. Before we look at these grounds of appeal, we should look at the facts of the case.

3. The fact that the applicant did kill the deceased was not in issue. The question was whether the killing amounted to any offence. The prosecution's case depended almost entirely on a cautioned statement made by the applicant to the police which, if accepted by the jury as undoubtedly it was accepted, clearly pointed to murder. Accordingly to the statement, the applicant, together with the deceased who was his elder brother's wife, arrived at their home at Wyler Garden, Hung Hom, on the evening of 23 December 1991. Whilst inside the apartment, the applicant dragged the deceased out of the toilet and accused her of causing all the trouble in the family. He strangled her and rendered her unconscious. In the process of the struggle the deceased scratched the applicant's face and neck. After the deceased had lost consciousness, the applicant fetched a chopper from the kitchen and cut his sister-in-law's neck: this injury was the cause of death.

4. The applicant gave evidence. The gist of which was that he accidentally entered the toilet whilst the deceased was urinating, and she scolded and subsequently attacked him. It was in self-defence that he strangled her. He said in evidence that he lost control when the deceased failed to answer him, whereupon he used a knife to chop her. Then he tried to conceal what he had done by simulating a robbery or rape which had gone wrong.

5. The judge gave a detailed summing up which occupies some 63 pages. The jury was out from 10:45 a.m. to 4:20 p.m. when they returned their verdict. The complaints argued by the applicant this morning are firstly, after the jury had been empanelled, the applicant became impulsive and was impolite and offensive to the jury. We do not think for a moment that the jury would be influenced in any way by the emotional outburst of the applicant, or that they would fail to do their duty conscientiously. There is nothing in this ground of appeal.

6. Secondly, it is submitted that the jury did not understand the judge's summing up and, in spite of the lack of understanding, the judge failed to discharge the jury but continued with his summing up. In our judgment, there is nothing whatsoever to support this complaint.

7. Thirdly, the applicant argued that the judge, knowing that his direction was erroneous, nevertheless continued with his summing up. The judge also committed an error by writing a paper and handing it to the jury. The applicant did not know what was written on this piece of paper. However, we were assured by Mr Percy this morning that he was shown what was written on this piece of paper, which contained written directions to the jury in order to assist them in their deliberation. The written directions were in fact repetition of what the judge had said orally in his summing up to the jury. There is nothing in this ground of appeal.

8. Finally, he said he was not ready to argue the case himself, because he had no lawyer and he had not prepared well. We have ascertained from Mr Percy this morning that the counsel at the Legal Aid Department on 27 October 1993 came to certain views on this application and advised: -

(a) that counsel's opinion be communicated to the applicant;

(b) that counsel's opinion was that there were no grounds of appeal;

(c) that, if the applicant chose to do so, he might withdraw Legal Aid and seek private presentation, or act in person. The Legal Aid Department, however, did not advise that the applicant should act in person, but suggested that if the applicant so wished the Department should obtain from the applicant his written instruction to discharge Legal Aid; and

(d) the applicant was to be told that he could continue to remain on Legal Aid, whereupon he would be assigned Mr Percy, the trial counsel, to represent him at the application for the appeal hearing, when counsel would appear to assist him and the court, if necessary, though counsel would not be able to argue any grounds of appeal. The applicant was to be told that he might say anything to the court.

9. This advice was communicated to the applicant when a Law Clerk of the Legal Aid Department saw the applicant at Stanley Prison on 3 November 1993. We are of the view that the applicant had ample time to prepare the appeal, because he was clearly informed on 3 November 1993, two months ago, what his counsel's view on the application was. There is nothing which has been said this morning which causes us any concern that the verdict of the jury might be unsafe or unsatisfactory.

10. For these reasons, the application for leave to appeal against conviction is dismissed.

Representation:

Mr Duncan Percy (DLA) for Applicant

Mr D G Saw for Crown/Respondent