HKSAR v. Yeung Hung

FAMC000021/1998

FAMC No. 21 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 21 OF 1998 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACC No. 378 OF 1997)

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Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Ching PJ

Date of Hearing: 5 November 1998

Date of Determination: 5 November 1998

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D E T E R M I N A T I O N

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Mr Justice Litton PJ:

1. The applicant seeks leave to appeal against the judgment of the Court of Appeal given on 11 September 1998 whereby his application for leave to appeal against his conviction for murder was dismissed.

2. The victim was a man called Yim Chun Hoi whose father (referred to at the trial as Boss Yim) was the applicant's employer at a construction site. A dispute had arisen concerning the applicant's wages. The applicant thought that he had been short-paid so he arranged to meet Boss Yim at McDonald's Restaurant at Texaco Road in Tsuen Wan. Before going to the meeting, the applicant armed himself with a fruit knife which he tucked into his waist. The prosecution's case was that the applicant arrived at the restaurant followed by several people and this group then attacked Boss Yim and his companions. No one else was armed with a knife except the applicant. The prosecution's case was that once Boss Yim's son had been identified the applicant produced the knife and attacked the victim with it. The injuries were very severe. There were eight stab or cut wounds on the victim's body. The fatal wounds were: (i) a stab wound which penetrated to a depth of 14cm through the abdominal wall and (ii) a 14cm cut wound which exposed the underlying muscles of the left forearm and severed the brachial artery. The victim bled to death.

3. The applicant testified at his trial. In essence, his case was that far from being the assailant, as the prosecution witnesses alleged, he was in fact the victim of an attack by Boss Yim and one or two other men. He was dealt many blows and, in the course of warding off those blows, he noticed that one of the attacker's arm was bleeding. He accepted in cross-examination that he had inflicted the fatal wounds but, in essence, his case was that he was acting instinctively in self-defence. In convicting him of murder, the jury had plainly rejected his story.

4. On his appeal to the Court of Appeal, one of the points taken was that the alternative of manslaughter should have been left to the jury, on the basis that the applicant had caused the death of the victim by a dangerous act, albeit without intent to cause death or grievous bodily harm. In rejecting this point the Court of Appeal said:

"... on the facts in this case, bearing in mind the hideous injuries inflicted upon the victim, such a direction would not in our judgment have been appropriate ...".

5. We agree with the Court of Appeal in this regard. The duty of the trial judge was to sum up fairly to the jury the real points in issue: it was not for him to raise every conceivable alternative verdict in his summing-up, particularly when the matter had not been raised by defence counsel. A direction along the lines now suggested, in the circumstances of this case, might have been confusing to the jury. Moreover, if the applicant had been convicted of manslaughter, the complaint might well have been made that the judge had invited the jury to return a "compromise" verdict, contrary to the weight of the evidence, thereby undermining the applicant's real defence: that he was acting in self-defence: a version of the facts which, if the jury considered possible, would have entitled the applicant to an acquittal.

6. In our judgment, there is no merit in this point.

7. Another ground taken on behalf of the applicant is this: The trial judge failed, in his summing-up, to highlight points favourable to the applicant. These were grounds 1 and 2 in the Court of Appeal. The Court of Appeal in its judgment refusing leave to appeal has dealt fully with the points. Its conclusions cannot be faulted. We need say no more about them.

8. This application for leave to appeal is dismissed.

Representation:

Mr Peter Callaghan (instructed by DLA) for the Applicant

Mr A.A. Bruce SC, SADPP and Miss Catherine Ko, GC (of the Department of Justice) for the Respondent