HKSAR v. Ousainou Touray

CACC 205/2021

[2022] HKCA 1753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 205 OF 2021

(ON APPEAL FROM HCCC NO 96 OF 2020)

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Before:  Hon Macrae VP, Zervos JA and M Poon JA in Court

Date of Hearing:  15 November 2022

Date of Judgment:  15 November 2022

Date of Reasons for Judgment:  24 November 2022

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R E A S O N S    F O R    J U D G M E N T

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.The applicant was tried on an indictment before Alex Lee J (“the judge”) and a jury in the High Court. He faced an indictment alleging a sole count of murder, contrary to Common Law and punishable under section 2 of the Offences against the Person Ordinance, Cap 212, to which he pleaded not guilty. On 8 September 2021, following a trial lasting 11 days, the applicant was unanimously convicted by the jury. The applicant was subsequently sentenced by the judge on the same day to a mandatory term of life imprisonment. The applicant duly applied for leave to appeal against his conviction. On 15 November 2022, we refused him leave to appeal against conviction and dismissed his appeal. These are our reasons for doing so.

The prosecution case

2.The applicant, who was born in the Republic of The Gambia, was married to Madam Cuyacot (“the deceased”), a Philippines national, in Hong Kong by way of a religious ceremony held in accordance with the Muslim faith. They lived together in a subdivided flat at Room C on the 5^th floor, 14 Pang Ching Street, To Kwa Wan, Kowloon (“Room C”)[1]. On 10 April 2019, the applicant attended Wong Tai Sin Police Station to report the death of his wife, as a result of which police officers immediately visited Room C and discovered the body of the deceased. The deceased was naked but wrapped by a mattress cover with her head exposed and a Koran together with some dust beads placed on top of the deceased’s abdomen[2].

3.There was no dispute at trial that the applicant had had a physical altercation with the deceased on the previous day. The applicant’s neighbour (“PW1”) living in the flat next to Room C, testified that he heard sounds of fighting, as well as screaming and crying, in the early hours of 9 April 2019[3]. The screaming lasted for about 10 minutes, during which he heard the deceased cry out “Stop it, stop it, Papa[4]” at least three times. He then went to sleep but was awoken at about 9 or 10 am on 9 April 2019 by the sound of something hitting the partition wall multiple times, and the deceased crying and screaming louder and longer than before. When the noise subsided, he did not hear any more sounds from Room C for the remainder of the day[5].

4.According to Dr Cheung Hiu-ni (“PW8”), the forensic pathologist, the estimated time of death was between 2 am and 2 pm on 10 April 2019[6]. In her evidence, PW8 stated that the deceased suffered multiple external injuries, including lacerations, abrasions and bruises to her face, head and body[7]. She could not rule out the possibility that the bleeding from the wound on the deceased’s head was the cause of death[8], but considered that in the deceased’s circumstances, the blood loss from profuse bleeding would have been about 1.7 litres and would have taken quite some time for it to prove fatal[9]. The pattern of the injuries on the deceased’s face and around the nose and mouth, however, indicated the possibility of pressure being applied to that area of the face. Having taken into account both external and internal injuries, together with the blanching marks across the ridge of the nose, PW8 was of the opinion that a mechanical occlusion had not been lifted and smothering was the cause of death[10].

5.The applicant asserted that he did not notice any profuse bleeding after the last fight with the deceased and there was no evidence that bloodstains had been cleaned up prior to the arrival of the police[11]. Relying upon PW8’s opinion, the prosecution alleged that in all the circumstances the death caused by smothering could not have been an accident; and that the applicant had at the material time deliberately smothered the deceased with the necessary intention to kill.

The defence case

6.The applicant elected to testify but did not call any witnesses. His case was a simple denial of killing the deceased; he maintained that he had defended himself during a fight with the deceased.

7.The applicant testified that there had been problems in the marriage, which resulted in various arguments and fights from time to time[12]. The deceased had, on occasions, bullied and assaulted the applicant and had even threatened to stab herself[13]. The applicant said there was another incident of an argument and fight around midnight on the 9 April 2019, in the course of which the deceased acted more aggressively and bit his right thumb causing him acute pain and injury[14].

8.On this particular occasion, the deceased slapped and used her fist to hit the applicant’s upper body, saying that she would take his life and hers[15]; something she had said before[16]. The applicant said the deceased was more aggressive and he could not tell how many times he was slapped and hit on this occasion[17]. He recounted how the deceased later held his finger, bit it and would not let it go. In great pain, the applicant defended himself by using his hand to push the deceased’s face[18]. The fight eventually stopped when he had successfully withdrawn his thumb from the deceased’s mouth[19].

9.The applicant denied punching the deceased or hitting her head, but suggested that the deceased might have bumped her head against the wall during the struggle[20]. He did notice that her head was bleeding, but it was “normal bleeding and not serious”[21]. Otherwise, he did not see any serious injuries to the deceased[22]. Thereafter, the applicant said he felt tired and sat down on the bed, whilst the deceased also sat beside him. After they had both drunk from a bottle of water, they each fell asleep[23].

10.The applicant subsequently woke up in the afternoon of 10 April 2019 and, to his horror, he found the deceased dead[24]. In order to pay his last respects to her, he placed a white sheet covering the deceased’s body and laid a Koran and dust beads on her body[25]. He then packed his personal belongings into three suitcases and took them to the police station, where he surrendered himself.

Grounds of appeal

11.In his perfected grounds of appeal, Mr Sherry, counsel for the applicant both here and below, raised a sole ground of appeal, namely, that there is a lurking doubt as to the safety of conviction, because the jury were apparently struggling to understand the language and the meaning of the judge’s directions, in particular, the meaning of “intention to kill”.

12.Mr Sherry complained that, about an hour and a half after the jury were sent out to deliberate, they made a request for a dictionary. Having discussed the matter with counsel, the judge informed the jury that they could not be given a dictionary but suggested that if there were any terms for which they required a reminder or explanation, they could list them out and he would discuss the matter with counsel[26]. Subsequently, some 8 hours after they had commenced their deliberations, the jury requested a clarification of the meaning of three particular words, namely, “inflict”, “prevail” and “albeit”. These were all words used in the judge’s handouts and the jury, in their note to the judge, identified where in those handouts they appeared. Mr Sherry submitted that in view of the jury’s earlier request for a dictionary, their later seeking clarification of the meaning of certain words and the fact that they had deliberated for a relatively long time, it was clear that the jury were struggling to understand the language and meaning of the comprehensive directions given. Having discussed the jury’s request with counsel, suitable definitions or synonyms were provided by the judge to the jury. They were then asked to retire for the night.

13.The jury resumed their discussions shortly after 9:30 am on the following day. Some three hours into their renewed deliberations, the jury sent another note to the judge in the following terms:

“Can we have some guidance of ‘Intention to kill’. Under what circumstances we can define/judge a person has intention to kill”.

The judge interpreted the question as concerning the drawing of inferences, which directions he had already given in the course of his summing-up, but which he would repeat[27]. He did not believe the jury were asking for a definition of the word “intention”[28].

14.Although Mr Sherry did not demur from the judge’s construction at the time, he contended before us that, in responding to this question, the judge placed too much emphasis on the second part of the note but failed to realise that the jury were obviously unable to comprehend the most fundamental element of the charge of murder.

15.As a result, Mr Sherry argues that what transpired after the jury retired should leave this Court with a distinct feeling of unease about the jury’s deliberations and their understanding of the issues; accordingly, there is a lurking doubt as to the correctness of the verdict.

The respondent’s submissions

16.It was the position of Mr Man, on behalf of the respondent, that the notion of a lurking doubt must be examined and applied with great caution. A substantial remaining doubt only arises on very rare occasions, invariably where the evidence against the defendant is weak. He argued that the present case was not one of those very rare occasions where an appellate court might find a lurking doubt about a jury’s verdict.

17.The respondent submitted that as long as the jury’s language ability was sufficient for the purpose of discharging their duty to try the case according to the evidence, the verdict was valid[29]. It was clear that the jury merely wanted to have a dictionary in case they needed it. Rather than “struggling” with their deliberations, the jury clearly demonstrated a conscientiousness and care in following the judge’s instructions, which may also explain why their discussions lasted for two days. Given that the judge had appropriately answered the jury’s questions, there was no basis for thinking that the jury had any difficulty in understanding the directions they were given.

18.Regarding the judge’s guidance on the element of ‘intention to kill’, Mr Man submitted that it was not necessary in the circumstances to direct on the meaning of ‘intent’ or ‘intention’. In this regard, he relied on the statement of Lord Bridge of Harwich in R v Moloney[30], which has recently been applied by this Court in HKSAR v Limbu Machindra[31]:

“… The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding. In trials of murder or wounding with intent, I find it very difficult to visualise a case where any such explanation or elaboration could be required, if the offence consisted of a direct attack on the victim with a weapon, except possibly the case where the accused shot at A and killed B, which any first year law student could explain to a jury in the simplest of terms. Even where the death results indirectly from the act of the accused, I believe the cases that will call for a direction by reference to foresight of consequences will be of extremely rare occurrence.”

19.In response to the jury’s question, the judge correctly pointed out that there was no admission or direct evidence of the applicant’s intention, and that the prosecution was inviting the jury to draw inferences from circumstantial evidence. The judge said[32]:

“Now, members of the jury, I’ve received a question for you. You asked:

‘Can we have some guidance on intention to kill? Under what circumstances we can define or judge a person has intention to kill?’

Now, the answer is this. If we have a case in which A unlawfully killed B and A told the police, “I stabbed B in the chest because I want (wanted?) him dead”, then what A said will be a direct piece of evidence of his intention. I think that is simple.

However, in this case, there is no such direct evidence. The prosecution case is a circumstantial one. I have already directed you about how to draw inferences from circumstantial evidence and that any inference to be drawn which is against the defendant has to be the only reasonable inference based on the facts which you are sure about.

I have given you an example about drawing inference of one’s intention from what he says or what he does …

Now in the present case, if you are sure that the deceased was unlawfully killed by the defendant … then you ask yourself in all the circumstances whether the only reasonable inference to be drawn is that the defendant had at the material time, when he smothered the deceased, he had either the intention to kill or the intention to cause her really serious bodily harm.

If you are also satisfied of that, that is not the end of the matter. You would follow the steps set out in Handout 4, that is, the route to verdict and go on to consider the partial defence of provocation and to determine whether the prosecution has disproved it or not.”

20.Mr Man argued that in any event, the jury’s request for further guidance on the question of ‘intention to kill’, which was properly addressed by the judge, would never by itself or in combination with other matters cause an appellate court to entertain a lurking doubt about the jury’s verdict.

Discussion

21.Mr Sherry has described the various questions from the jury as a succession of “red flags” which, in conjunction with the time it took them to deliver their verdict, suggested that the jury were struggling to understand important definitions and issues in a murder case. If there is any likelihood that they may not have understood the judge’s directions, particularly on the question of intention, there must be a lurking doubt about the verdict.

22.We cannot agree with counsel’s premise. The jury were presented with written handouts on the subjects of murder, provocation, manslaughter by an unlawful and dangerous act as well as a route to verdict, all of which ran to 17 pages of typed instructions, and which were each gone through by the judge in his oral directions. Furthermore, there were the issues of accident and self-defence to be considered by the jury. Thus, there were numerous permutations of law and fact for the jury to consider; some of which were partial defences, others complete defences to the charge of murder. It does not surprise us at all that the jury should have taken time to deliberate upon these issues.

23.Far from the written questions to the judge revealing a troubled jury who could not comprehend basic elements of the summing-up, we found their conduct exemplified a careful, conscientious jury anxious to do justice to their solemn duty. We see no basis for thinking they may not have understood the judge’s directions and no warrant for finding a lurking doubt about the correctness of their verdict.

24.The request for a dictionary was plainly occasioned by the number of handouts the jury were given. Having been asked if there were any terms they wanted explained, the jury evidently took their time to go through the handouts and came back with a request for the definition of three particular words. Hence the page and line references of the handouts, which they identified against each particular word in their note to the judge. Two of the words have far more common synonyms in ordinary parlance, while the third is described in the Shorter Oxford English dictionary as “now literary”. We are neither surprised nor troubled that a careful jury might ask for the meaning of these words. The fact that they did not ask for the meaning of any others, when they had been invited to do so, rather suggests that they understood the remainder of the instructions.

25.When the jury later sent a note asking, “Can we have some guidance of ‘Intention to kill’”, we do not believe they were asking for the definition of the word ‘intention’, which is, after all, a very common English word. Had that been their concern, they would have explicitly asked for the definition of the word (or phrase), as they had done with their previous note concerning the three words. What they obviously wanted guidance upon was revealed in the sentence which followed, namely, “Under what circumstances we can define/judge a person has intention to kill” (our emphasis). When the judge recited the question to counsel and gave as his interpretation that “[a]ctually, it’s about drawing of inference which I think I have already directed them on but I don’t mind repeating it to them”, Mr Sherry seemed to agree. And when the judge, in a subsequent exchange with prosecuting counsel, said “…I don’t think they are asking for a definition of ‘intention’… This is not what they ask”, prosecuting counsel agreed, without demur from Mr Sherry.

26.In our judgment, the reply the judge gave to the jury’s enquiry was correct and appropriate. Moreover, it did not elicit any further comment or note from a jury that was clearly conscientious, as well as perfectly capable and ready to ask questions if they needed to.

27.Mr Sherry further queried why, on the occasion the jury had requested definitions of the three words from the handouts, they had added a further question in these terms:

“Admitted fact: only (the applicant) and deceased in Room C on 9/4 and 10/4?”

He submitted that the very question revealed that the jury cannot have properly understood the evidence.

28.One must, with respect, be cautious of reading too much into a jury note or question. There may be many reasons why they might ask a question: sometimes it may simply be that one of the jurors wants a clarification of something from the court rather than from his or her fellow jurors. As Mr Man pointed out, the judge had stated in his summing-up[33]:

“If you considered that you can accept Dr Cheung’s evidence as true, then bearing in mind that there were only the deceased and the defendant in Room C at the material period of time, can you also be sure that the deceased was killed by the defendant[. I]t is for you to decide.”

Given that the Admitted Facts had, in paragraph 1, merely stated “At all material times…(5) the defendant cohabited with the deceased, as a couple, at Room C”[34], it seems to us that the jury were trying to reconcile that particular Admitted Fact with the judge’s statement. In the event, the judge correctly told the jury it was not an Admitted Fact[35], and they were to base their verdict on the evidence.

29.This particular matter, as well as the contents of the other notes, is indicative, not of a careless jury struggling to understand the evidence and reach a verdict, but of a prudent, careful and conscientious jury, listening very attentively to the evidence and the summing-up and, only when they were entirely ready, announcing their verdict. When the verdict was declared, it was unanimous. Moreover, the questions the jury raised evinced perfectly intelligible English.

30.We found no basis for concluding that this verdict was either unsafe or unsatisfactory. Nor did we have the slightest doubt about the correctness of the verdict of guilt. The application for leave was accordingly refused and the appeal dismissed.

Mr Jonathan Man DDPP, of the Department of Justice, for the Respondent

Mr James Sherry, instructed by Choy Yung & Co, assigned by the Director of Legal Aid, for the Applicant