Chu Chi-lung v. The Queen
|
CACC000197/1982
------------ Coram: McMullin, V.-P., Barker, J.A. and Bewley, J. Date: 2 June 1982 ------------------------ J U D G M E N T ------------------------ McMullin, V.-P. : 1. The appellant appeals against his conviction for murder following upon trial by jury. It is a tragic case. 2. The appellant and the deceased were cousins. They had been brought up together as boys in China. In February of 1980 the appellant made his way illegally to Hong Kong but by virtue of the fact that the 'touch base' policy was then in existence, he succeeded in getting his citizen papers and thereupon set to to make his living. He was employed in a food factory. He resided for some 6 months with a relative at Kwai Chung, up to June 1980. 3. He moved to an unnumbered hut in September of 1980 but prior to that, in August, his cousin, the deceased also made his way to Hong Kong illegally - making his way across the border in the care of one of those persons who are normally referred to as snakeheads. 4. The deceased stayed for a while with their mutual uncle at Shek Lei Pui. The appellant contacted him there and, in fact, paid a sum of $2,500 to the snakehead involved. He also had the deceased to live with him for a while in his premises by then an unnumbered hut upon a hillside at Kwai Chung and he obtained work for him in the food factory where he, the appellant, was then working. 5. That lasted for a short while only. The deceased became ill and was hospitalized. After a short stay in hospital, he went to another place where he got a job and was employed by a relative. The two cousins continued to visit each other, however. As to the relation between them, we really have only the testimony of the appellant himself. It would appear that on two different visits one in February and one in March, according to the appellant, acts of sodomy were committed upon him by the deceased without his consent. During this period also the appellant had requested that the deceased returned the money which he, the appellant, had paid to the snakehead. There was a request of that kind in April and again in May. On each occasion it would appear that the deceased was irritated by the request and no money was forthcoming. But later on in June the appellant got in touch with a person called Lam, who appears to be the benefactor or relative of the deceased, who made available a cheque for $2,000 in favour of the deceased. In a subsequent phone call by the appellant to the deceased in June, the deceased said that he was prepared to pay. 6. That phone call was on the 13th of June and, according to the appellant, on the following day at about 9 in the morning, after he himself had consumed a little wine, he went down the hillside below his house and there he encountered the deceased. They went up the hill together. According to him, he understood that the deceased was visiting in order to repay the money. The deceased, he said, was carrying a camera and a newspaper. He carried the camera for the deceased up the hill and when he went into the hut, he was putting the camera upon his upper bunk when he was suddenly attacked from behind by the deceased using a hammer. A struggle ensued in the course of which he possessed himself of the hammer, having initially received a blow on the shoulder with the hammer and also a single punch. He said that he lost his temper at this stage and set about the deceased and inflicted upon him the injuries from which he died. 7. Those injuries were 136 in number. They included depressed abrasions all round the skull associated with which there were hemorrhages in the brain. They included also some stab wounds about the trunk and legs. The Achilles' tendons in both heels had been severed and, as a final and somewhat bizarre touch, the left testicle of the deceased had been removed. 8. In his evidence the appellant admitted to inflicting these injuries. He said that he had used a fruit knife for the cut wounds and the removal of the testicle. 9. Those facts were largely not in dispute. The only eyewitness called by the Crown was a Mr. Leung. He was not a satisfactory witness. He described, after some hesitations, how he had heard noises coming from the hut while he worked with a companion at a hut lower down the hill and how he had gone up and, through a quarter-inch crack between the door and the doorpost, had been able to see the appellant astride the deceased striking him on the head with a hammer. His view of the matter, however, lasted, according to him, only two seconds. 10. The unsatisfactory character of his evidence was stressed by the judge in addressing the jury and no point on the appeal arises in respect of that. What it comes to, however, is that there was, in the appellant's own story, matter which clearly raised the defence of provocation - the principal defence put before the court. Some reference was made to the possibility of self-defence. That also was dealt with by the judge in addressing the jury. It was clearly not a defence which had any substantial ground to it and Mr. Payne, upon this appeal, does not seek to take it or the direction dealing with it any further. 11. What is said, however, is that the judge so directed the jury on the substantial defence of provocation that he confused them and might have left them with the impression that it was for the defence to prove provocation. The three grounds of appeal with which we are concerned relate to this matter in varying ways but in substance that is what is being said. 12. Three directions in the summing-up are referred to in this connection but before I turn to them, I should point out that it is not suggested that the initial direction as to the burden of proof was inadequate or wrong. The judge gave the usual general direction that it was for the Crown to prove its case beyond reasonable doubt and he described what that meant. At page 178 of the record in the course of the summing-up, he then went on to deal with the question of self-defence and provocation. What was said in respect of self-defence is of no concern but then the judge went on to consider the other question, provocation. He said :-
13. This is the initial confusion which, in the argument of Mr. Payne, has caused the whole difficulty with which, he says, the jury were thereafter faced. He maintains that the judge had correctly directed the jury right down to the point at which he had said that it was for the Crown to show that there was no self-defence and to show that the defence of provocation was not established. If he had stopped there, counsel would not have objected to the direction. Nor would counsel have objected to the quality of the direction in the final sentence viz.: that it was for the Crown to show that on the evidence the accused could not rely on provocation. The intervening words, however, which were "sorry, it's not for the defence to establish that" may, he says, have unsettled the whole direction so that the jury may have been left in doubt and thought that it was for the defence to establish something in relation to the defence of provocation. 14. If there were substance in that ground, it may be said that what was maintained by counsel in respect of the subsequent passages would also be of substance. At page 182, dealing again with provocation, the judge directed the jury that there were two questions they would need to consider. The first is a question of fact :
He went on to say :
15. That direction, counsel says, and in particular the use of the phrases "you must then decide" and "if you have come to an affirmative conclusion on that first question" reinforced the possibility that the initial direction given to them was such as to place the burden of proof of provocation upon the defence. Finally, at page 184, still dealing with the question of provocation, the judge said :
16. Again counsel says that that phrase "If you find" would have conveyed to the jury the idea that they must regard the evidence in the light that the defence had to show something in the nature of provocation. 17. We are satisfied that there is nothing in these objections. If the initial direction at page 178 is correct, the other two passages to which counsel has drawn our attention must be read in the light of that direction. We are satisfied that although the judge did hesitate in the course of that first direction and although he might well have stopped at the point at which, counsel says, he was still correct, nevertheless, read as a whole, that passage cannot have left the jury under any other impression than that it was for the Crown to disprove provocation. There was the initial, and perfectly proper, direction as to the burden of proof upon the Crown. Read as a whole, we cannot see that the jury, if they were attending to what was being said to them (and we must assume that they were), could have come to the conclusion that suddenly a different direction in relation to the burden on the Crown was being put to them. 18. That was the substantial ground of appeal. It is the burden of grounds 2, 3 and 4. Notwithstanding Mr. Payne's valiant efforts before us, we are satisfied that there is no substance in the ground particularized in those paragraphs. 19. For completeness it must be added that there were two other grounds of appeal, Nos. 1 and 5, but in the face of some headwinds from the Bench, Mr. Payne conceded that he was not prepared to press those any further. 20. For these reasons, therefore, the appeal must be dismissed. Representation: Ian Payne (D.L.A.) assigned for Appellant J.Duffy & A. Chow for Respondent/Crown |