HKSAR v. Liu Sun Kong

CACC 348/2018

[2022] HKCA 4

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 348 OF 2018

(ON APPEAL FROM HCCC NO 415 OF 2017)

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Before: Hon Macrae VP, Pang and M Poon JJA in Court

Date of Hearing: 29 October 2021

Date of Judgment: 3 January 2022

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J U D G M E N T

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Hon Pang JA (giving the Judgment of the Court) :

1.On 14 November 2018, after a retrial before Deputy High Court Judge Stuart-Moore (‘the judge’) and a jury, at the beginning of which his plea of guilty to manslaughter was rejected by the prosecution, the applicant was convicted of the murder of Liu Wing Sang (‘the deceased’)[1] and sentenced to life imprisonment. He now applies for leave to appeal against conviction.

Undisputed Facts

2.At 10:57 pm on 23 May 2014, the deceased was found lying on the floor of Ngau Kee Store in Mun Hau Tsuen, Sheung Shui Wai by first responders. He was suffering from multiple injuries and had no pulse and no heartbeat. At 11:43 pm in North District Hospital he was certified dead. A post-mortem examination of his body revealed 48 areas of injury, 27 of which were stab wounds. One of those wounds, opined by the pathologist to have required substantial force to cause and which damaged the deceased’s heart, was fatal.

3.The applicant was arrested shortly after midnight on 24 May, at a place not more than a few hundred yards away from Ngau Kee Store. Both his clothes and shoulder bag were then bloodstained. In his shoulder bag were two knives; the one with a sharp 7½ inch-long blade (Exhibit P1) was also bloodstained. The blood on the clothes, the bag and the knife were all found to contain the deceased’s DNA.

4.Under caution for the murder of the deceased, the applicant said to the arresting officer, “He beat me up a few times. I was simmering with rage so I took him out.” When the officer asked what knife he had used to commit the offence, he replied, “The knife in the bag.” When the officer took one of the knives out of his shoulder bag, he said, “This was the one.”

5.At 8:43 am on 24 May 2014, the applicant himself was taken to North District Hospital, on complaint of chest and breathing discomfort. The attending doctor could find no physical injury on the applicant but based on his dull expression, incoherent speech and positive urine test for methamphetamine/amphetamine, recorded a provisional diagnosis of “drug abuse”.[2] A check on his medical history also revealed an incident of “soft drug abuse presented with confusion” in 2011.[3]

The Prosecution Case

6.It was the prosecution case that the applicant had set out to either kill or cause the deceased grievous bodily harm. Knowing that the deceased would take a fairly regular walk to check on some garage that he owned, the applicant was said to have lain in wait. When the deceased finally appeared, the applicant took out his knife, attacked the deceased near a banyan tree and further pursued the deceased into Ngau Kee Store where riding on his body, he stabbed the deceased more on the chest. The suggestion was that the applicant did so out of revenge.

7.To support their case, the prosecution looked to a number of civilian witnesses as well as the applicant’s verbal admission under caution. For instance, there was Liu Wai Fun, the lady at the banyan tree who although she was not there at the beginning, saw the deceased being attacked whilst lying face down on the ground, when another woman was shouting and yelling and pulling at the applicant to stop.[4] And there were Liu Yuk Wah[5] and Tse Hok Wing, whose testimonies were to the effect that the applicant had then chased the deceased into Ngau Kee Store, in an attack in complete disregard of the fact that were other people in the shop.

8.Mr Tse’s evidence, said to be “heavily relied on by the prosecution”,[6] was summarised by the judge as follows :[7]

“ … Someone went and drew the curtain and said it was too dark to see, and then one or two minutes later a man came rushing in. There was some blood on his top near his mouth and he looked nervous. When he reached the third table, he could go no further and another male ran after him.

… The man who came in after the first man, I saw the man behind had a -- had something like a fruit knife. I wasn’t clear which hand it was in, but the man in front had no space to run any further. The two of them were in a struggle. At first they faced each other at the third table at the back of the store. I saw the man holding the knife. He stabbed the first man twice at the waist area. They were standing at that stage.

… All the lighting tubes were turned on. I was standing at the white stool area … and I got hold of my belongings and was preparing to leave. Before I left, I noticed that the injured person was already lying prone on the ground in this position … and the second man was riding on top of the first man. The injured person was on the ground and they were facing each other. The person on top was trying to attack the injured person again. He still had the knife in his hand and was trying to stab him again. I didn’t see what part of the body was being attacked. The first man tried to fend off the one on top. The first man had nothing in his hand, and I heard the attacker asking the question, ‘Is it really enjoyable? Is it really enjoyable?’ I didn’t notice blood and I was the last person to leave. When I left, both men were still in the positions I’ve described. Ireturned to the store 10 or 15 minutes later and by then the attacker had gone, but the other person was still lying unresponsive on the floor. Blood was coming from his head and there was blood on the floor. His head was towards the door, his feet towards the back of the store.”

The Defence Case

9.As said, the applicant offered to plead guilty to manslaughter. It was a matter of admitted fact before the jury.[8] The basis of that plea was provocation. The defence case was that the applicant, a much smaller man in size, had been subject to the verbal and physical abuse of the deceased for years. It even resulted in earning the deceased a criminal conviction of ‘assault occasioning bodily harm’ in 2009.[9] And on the day in question, the applicant snapped.

10.In evidence, the full history and the more serious of the injuries arising out of the alleged abuse were described in detail. They were not challenged. In fact, they seemed to be largely consistent with what was stated in the applicant’s medical records.[10] Below is the judge’s summing up on how it all started, and how the bullying became increasingly violent (reproduced here only in key excerpts) :[11]

“ [The applicant] said, ‘I knew the deceased. We used to live nearby and I have known him while I was growing up. But … after 1997, I no longer greeted him.’

Then he told you about this use of his younger brother’s mobile phone numbers by the deceased and he was concerned that the deceased was up to something illegal, and so he told the deceased not to use those numbers ... ‘After this, whenever he saw me, he would swear at me … and beat me up. I would try to avoid him … he was very fierce. He weighed 185 pounds and was 5 foot 10 inches tall, whereas I am around 5 feet tall. I weighed 110 to 120 pounds.’

Now, ‘In 2002 I had a friend … and … he got beaten up … all because he had some put some bricks in the wrong place’ … a month later, I bumped into the deceased’s follower and I told him, ‘Don’t cause trouble to my friend,’ and after this … there came 10-odd people … and I got beaten up using fists and torches …’ That was the time when he had a pneumothorax, or punctured lung …

‘After that incident … I also moved to China, hoping that it would die down … I lived in China from 2006 to 2008. I moved back to Sheung Shui Wai after that ... I tried my best to avoid him. Sometimes I was not able to avoid him. I would get abused by him.’

Then he told you about the 2009 incident. ‘On that day … I came across three of them … brothers of the defendant ... They abused me: ‘Fuck your mother. What have you said about me?’ … and then the deceased came up … and beat me, and I reported this to the police’. This is what led to the ABH or assault occasioning actual bodily harm for the deceased in court.

‘… the very next day. My younger brother was beaten up by three of them’ … So it was all connected up, he thought.

‘… between 2009 and 2013, whenever he met me, he would verbally abuse me. In 2013, I was hospitalised for injuries from a knife attack. This happened at night when … suddenly these people came from behind ... I turned round and saw two people … wearing masks … I lost consciousness’ and that is when he was taken to North District Hospital, where he was treated for all those dreadful injuries that you have seen in the photographs in your pink folder.

Those injuries are also described in the medical report, which is also in your folder ….

… ‘I told the police that I didn’t know who attacked me or why. I said that I didn’t have any grudges with anyone ... I didn’t have evidence … I suspected the deceased, but I didn’t tell the police … And then in early 2014 … on the first day of the lunar year … I got to … Ngau Kee Store … The deceased saw me in front of a lot of people and said, ‘Fuck your mother. I will get several people to beat you up one more time,’ and I was thinking to myself he’s gone too far at Chinese New Year and I was very angry … but I didn’t say anything ... I took the threat seriously. Before he took a few steps away, he whispered in my ear, ‘I’m going to get someone to chop you to death.’ For sure, he was the one who masterminded the November 2013 incident … After that I didn’t do anything. I just … avoided him and I ran away in order to avoid him …’”

11.Coming to the night of the offence, the judge quoted the applicant and said :[12]

“ … ‘I left home at 7 o’clock … When I walked out of the gate of the village, I came across the defendant ... He uttered two sentences … ‘Fuck your mother’ and ‘You will see what is going to happen later’ … ‘I was pushing my bicycle because you can’t ride the bicycle within the village. I could only ride on my bicycle once I left the village. I ignored the deceased …’

Well, he then had his meal and … shortly after 8 o’clock … he had got back to the village. The whole journey on the bicycle to the restaurant … took 15 minutes each way. ‘I cycled then for around an hour’, what he called his ‘physiotherapy’, ‘and then rode back to Sheung Shui Wai. Around 10 o’clock, I would go to the Ngau Kee Store … I wanted to … have a chat with friends, and I parked my bicycle opposite the store. The deceased suddenly appeared behind me. He patted several times … on the back of my head. Then he hit me on my chest or my waist with his left thigh and he said, ‘I will hit you to death.’ My glasses came flying off. I was forced to hold both of his legs because he was knocking me with his knee. Then we fell on the ground together. A knife came off from his body. I didn’t pay attention to where it came from. It landed to close where I was. I was in great fear. Subconsciously, I just picked up the knife. Out of convenience, I punched it into his leg several times. It was my intention to go. I was thinking that he was pinning me, holding my shoulder, but I couldn’t see who was doing this because it was behind me, but it was a man. And then the person who was holding me said, ‘Don’t move,’ and I was thinking it would be his men again. Then I said to this person, ‘That’s enough. As a person, you should have a sense of justice.’ I said, ‘You should be able to tell right from wrong.’ And then he said, ‘Put the knife down first,’ and then I put down the knife. I didn’t know where that person had gone. The deceased was pulling my clothes. Both of us were on the ground and he shouted ‘Fuck your mother. You will be chopped until you don’t have any hands or legs.’ Both of us were on the ground. After he finished those few sentences, I was very frightened, also very angry. Well, I was furious. He tried to snatch the knife. It was on the ground. I was able to pick it up. We got up at almost the same time. I had no idea what I was doing. We were pulling, pushing, running around. I was not able to think of anything. It was like we were pushing, dragging each other, and then we entered the Ngau Kee Store.’

It was put to him at that stage by Mr Hemmings that ‘The witness said that the deceased ran into the store and you followed.’ And the defendant said, ‘Well, I was not clear about what happened then. I’ve no recollection. Then we were in a struggle.’

He was asked about the pathologist’s description of the injuries and he said, ‘I don’t remember what happened. I remember the pathologist gave that evidence.’ And he was asked, ‘Well, what about the stab wounds that went through the muscle?’ and he said to the defendant -- he said, ‘It’s possible there were some abrasions in the struggle. I do not know how the injuries were caused during the struggle. At that time I was very frightened. I became so angry. I thought about how I became disabled and became like this’.

And asked about the stab wound number 8, which went through the rib bone: ‘Do you recall how it happened?’ ‘I don’t know.’ ‘What about … number 10? That was the fatal one, pierced the heart.’ He said, ‘I really don’t know how it happened. I didn’t intend to inflict serious injuries on the deceased. I didn’t intend to kill him … ‘.

‘I only became clearer about this when the deceased became motionless. I had a very severe headache and I left the store. I never thought about whether the deceased had died. In fact, I thought he was alive. I took the knife.  I was very confused at the time and I had no idea why I took the knife. Police found me two or three hundred metres away from the store … I didn’t know what had happened .... I first knew that the deceased had died when the police officer arrested me, and I said to the police officer about the knife when I was in the police station’ - he was asked about the tea knife and he said, yes, he liked Chinese tea – ‘and I did tell the police officer that ‘Earlier on he beat me again and I said that I had pent-up anger.’”

12.Focussing finally on the alleged pursuit of the deceased into Ngau Kee Store and the ultimate question of the provenance of Exhibit P1, the uncontested weapon of the killing, the judge drew his summary to a close :^[13]

“When it was suggested to him that he had run into the store after the deceased, he said, ‘I don’t know what I was doing. I was not clear in my mind,’ and a few things were suggested to him, showing that he was very clear. He said, ‘I disagree. I had wanted to leave, but someone was holding me. It was a man. This was at the speed hump area. I did hear a lady calling, ‘Stop fighting. You’ll beat him to death.’ I believe that did occur. At that point in time I was a bit clear and, as I ran into the speed hump, I was really’ -- sorry, ‘from the speed hump, I was really not clear’.

‘It would have been very easy’, it was suggested to him, ‘for you to have simply headed back to your village, but you planned a revenge attack and that’s why you tried to go after him and he ran away.’ ‘I object,’ said the defendant, by which of course he meant ‘I don’t agree.’ ‘And you wanted to finish him off,’ said Ms Crebbin. ‘At that point of time,’ said the defendant, ‘I had already lost control. I felt so much anger. I really didn’t know what was going on. The anger was after he had beaten me.’

Then we went through various areas of bloodstaining - on the curtains, the steps and, of course, in the street before that - and he repeated again that ‘there was another man standing behind me’, which had stopped him getting away. ‘The deceased kept scolding me, saying the things he had said before about chopping me to death and I became very angry. Yes, I was furious.’

Question: ‘You were determined not to let him escape until you had injured him badly.’ ‘No,’ he said, ‘but I had already lost control.’

Question: ‘You said that you were used to his verbal abuse’, and the defendant said, ‘Yes, but he didn’t beat me,’ whereas, of course, this time he had.

‘Inside the store,’ he was asked, ‘you cornered him when he couldn’t run any further.’ ‘I don’t know,’ he replied. ‘You stabbed him a couple of times and he went down on the floor.’ ‘I don’t know. I wasn’t conscious at the time.’

Question: ‘You knew what you were doing and you were saying ‘It’s really enjoyable, isn’t it?’’ and the defendant replied, ‘I did not. I did not say a word.’

‘When you left the store, you knew he was motionless,’ he was asked. He said, ‘Then I became more aware. I didn’t know why I took the knife. I was very confused in my mind.’ And, of course, he put it in the bag by zipping the bag up, putting the knife inside.

Yes, I think that more or less reminds you of some of the questions. We looked at the T-shirt and shorts of the deceased as being, it was suggested, rather unsuitable for carrying a knife inside, whereas he could have carried a knife if he had wanted to, in a bag, but the defendant was saying, ‘No, the knife fell out of his body,’ whatever that meant, and he did not know where the knife was being carried. He denied that this was a deliberate revenge attack.”

Defining the Issues at Trial

13.In his closing submissions, defence counsel stated categorically that the applicant had raised the defence of provocation. He stated it was a matter that the jury would have to consider.[14] He also said he knew the judge would be giving detailed directions on unlawful act manslaughter[15] – the omission of which was the reason leading to the overturning of the applicant’s conviction for murder in the first appeal.[16] Accordingly, on no less than three occasions did the judge tell the jury that “there [was] full agreement”, “no disagreement” or “no dispute” between the parties that the killing in this case was unlawful,[17] in the context of explaining to them the elements of offence of murder and the two said forms of manslaughter. Insofar as defences were concerned, that was the parameter of the judge’s summing up. Neither the prosecution nor the defence asked for anything else to be included.

Grounds of Appeal

14.Mr Andrew Bruce SC was not one of the counsel at trial. The complaint he now raises on behalf of the applicant is twofold :

Ground 1

The judge failed to direct the jury to have regard to the fact that the applicant was or was likely to be under the influence of drugs at the time of the offence.

Ground 2

The judge failed to direct the jury to consider a possible defence of self-defence.

15.For Ground 1, Mr Bruce points to the applicant’s history of drug abuse, his dull expression, incoherent speech and positive urine toxicology test result on the morning after the killing[18] and the subsequent and improved finding that he became “euthymic, indifferent with coherent and relevant speech” during his stay in hospital.[19] Mr Bruce also stresses the point that according to the applicant, he had neither the intention to kill or cause grievous bodily harm[20] nor any clear recollection of the events that transpired during the incident.[21] These amount to evidence that must necessarily require the jury to consider the question of voluntary intoxication, which negatives specific intent. Alternatively, drug consumption is relevant to whether the Applicant had in fact lost self-control, hence impacting on his primary defence of provocation: HKSAR v Yeung Kin Sun[22].

16.For Ground 2, Mr Bruce seeks support from the case of Ho Hoi Shing v HKSAR[23] in that although neither the prosecution nor the defence raised the point, the applicant’s version was that the deceased was the initial aggressor. He was said to have attacked the applicant near the banyan tree,[24] had the help of a man who pinned the applicant down,[25] repeated his previous threats to hit or chop the applicant to death[26] and generally made the applicant “very frightened” as well as very angry,[27] thus providing an evidential basis for the defence of self-defence. As regards the prerequisite proportional use of force, what the applicant carried on to do from that point may or may not substantiate that defence but that is a question for the jury.

Discussion

17.The case of Ho Hoi Shing was decided in 2008. It must now be read in conjunction with three recent decisions: HKSAR v Chau Yui Ming[28], HKSAR v Chow Ching Yin[29] and HKSAR v Lai Kam Fung.[30] Together they have clarified the law with regard to the two-part question of threshold, and the relevance of the defence deployed, in determining whether an alternative verdict or verdicts should be left to the jury for consideration.

18.Lai Kam Fung, the most recent of these cases, provided the opportunity for a short and succinct overview of that final position. In giving the reasons for determination of the Appeal Committee, Fok PJ said this of the nature and magnitude of evidence that is required to make alternative verdicts a live issue :

“ 17. The critical question in cases involving the possible need to direct a jury on alternative verdicts is whether the threshold requirement, that ‘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’, is met. In Ho Hoi Shing, it was held that the threshold is ‘a low one … consistent with the fundamental principle that it is for the prosecution to prove guilt beyond reasonable doubt.’

18. That passage of Ho Hoi Shing must, however, now be understood and applied in the light of this Court’s more recent judgment in Chau Yui Ming, in which, at [32], Ma CJ said this :

‘ The answer to the question in what circumstances it would be incumbent on a judge to direct a jury as to the alternative options open to it is, I believe, to ask further whether there is an obvious alternative verdict which is supported by the evidence of that alternative. The requirement of an obvious alternative supported by evidence was discussed by Lord Bingham in the following passage in Coutts :

“ 23. The public interest in the administration of justice is, in my opinion, best served if in any trial on indictment the trial judge leaves to the jury, subject to any appropriate caution or warning, but irrespective of the wishes of trial counsel, any obvious alternative offence which there is evidence to support. I would not extend the rule to summary proceedings since, for all their potential importance to individuals, they do not engage the public interest to the same degree. I would also confine the rule to alternative verdicts obviously raised by the evidence: by that I refer to alternatives which should suggest themselves to the mind of any ordinarily knowledgeable and alert criminal judge, excluding alternatives which ingenious counsel may identify through diligent research after the trial. Application of this rule may in some cases benefit the defendant, protecting him against an excessive conviction. In other cases it may benefit the public, by providing for the conviction of a lawbreaker who deserves punishment. A defendant may, quite reasonably from his point of view, choose to roll the dice. But the interests of society should not depend on such a contingency.” (Emphasis added.).

Lord Rodger of Earlsferry referred to a ‘viable’ alternative verdict.’”

19.Next, and not without some emphasis, His Lordship reiterated the constraints that any given defence position is likely to bring to bear on the matter. Put shortly, if by way of one factual scenario a certain defence is raised, then it is not to be expected that an alternative verdict would be left to the jury through a reinterpretation of the facts to cover for a different scenario – unless the evidence obviously requires it (the threshold point) :

“ 19. We would endorse the recent observations of McWalters JA in HKSAR v Chow Ching Yin as a correct reflection of the law following this Court’s judgment in Chau Yui Ming. In that case, at [47], McWalters JA said :

‘ The legal principles relevant to when a trial judge should direct a jury on an alternative verdict not relied on by the defence were discussed by the Court of Final Appeal in HKSAR v Chau Yui Ming. The judgment in that case is the final word on this question and the court’s earlier decision in Ho Hoi Shing v HKSAR should no longer be regarded as representing a complete statement of the law of Hong Kong on this question. Although Chau Yui Ming did not dramatically alter the law as set out in Ho Hoi Shing, the changes it did make were significant and the approach it lay down must now be the approach of trial judges and appellate courts when being called upon to answer the issue we have described at the beginning of this paragraph …’.

20.  As the Court held in Chau Yui Ming, ‘[t]he way that the defence case is run on the facts is obviously relevant in determining whether there is sufficient evidence in support of an obvious alternative verdict. If a factual alternative does not arise in the way the defence has dealt with the facts and presented the case on the evidence (as opposed to the legal approach) this will in most cases be decisive.’”

20.Contrary to the submissions of senior counsel, the present case is an example of how the twofold hurdle mentioned above may work against someone seeking to advance the applicant’s argument.

21.When the applicant was medically examined on the morning of May 24, he “denied any recent history of recreational drug abuse”.[31] As a matter of fact, there was never any indication at any stage that the applicant would be attributing his action to drugs. There was not the slightest hint of that kind in the questioning of witnesses, nor was there any such hint in counsel’s speeches, which is presumably why when referring to the detection of methamphetamine in the applicant’s toxicology report, the judge said, “there is no real suggestion that this has much to do with anything”.[32]

22.The stated defence in this case was provocation. Alternatively, the jury were told that they could consider convicting the applicant of unlawful act manslaughter. Either way, defence counsel relied on the cautioned statement of the applicant to show consistency with that position.[33] The admission as a whole, “I was simmering with rage so I took him out”, on the other hand, shows the applicant to be both conscious of, and purposeful in, his action. The admission does not support any suggestion of a mental blackout, or the inability to form specific intent.

23.The applicant’s evidence was that he became furious and did not remember what happened beyond the initial attack at the banyan tree. But it was a state from which he was able to recover after leaving the deceased in Ngau Kee Store. An hour later, he made the abovementioned statement under caution. The picture he portrayed was of a man giving way to years of pent-up anger and losing himself momentarily, not someone who was intoxicated. In terms of opportunity, using drugs was what the applicant could have done between killing the deceased and his own arrest.

24.The partial defence of provocation carries with it an admission that the applicant was involved in an unlawful act. Likewise, the alternative of unlawful act manslaughter. Not so with the case of self-defence. By asking or not objecting to be placed before the jury his plea of manslaughter as an admitted fact (experience strongly suggests it was the former) the applicant was announcing in the clearest possible terms that he was relinquishing any claim to lawfulness of action. ‘The deceased started it, but I can’t say I did not overreact’ was his case.

25.Allegedly, the applicant’s memory was somewhat of a haze between the fight at the banyan tree and his leaving the deceased dead in Ngau Kee Store. He did say there was some pushing and pulling but against that circumvention of anything concrete was the account of two independent witnesses amounting to nothing short of a savage and one-sided attack. Even as regards the initial fight at the banyan tree, the evidence of yet another witness was that a woman tried but failed to stop the applicant who was obviously having the upper hand.

26.The sum total of the evidence, together with the fact that there was a disturbing disparity in injuries (the applicant had none), make the whole question of self-defence illusory, which is perhaps why it was not adopted as a defence at trial. Had the judge raised it, it would only have caused the defence to detract from their position and confused the jury.

Disposal

27.For the above reasons, we refuse to grant the applicant leave and dismiss his appeal against conviction.

Mr Andrew Bruce, SC leading Ms Denise Souza, instructed by M/s Tse Yuen Ting Wong assigned by Director of Legal Aid, for the Applicant

Mr William Tam, SC, DDPP leading Ms Stephanie Chau, PP of Department of Justice, for the Respondent