R. v. Tsui Kwok Fu

CACC000246/1991

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Coram: Silke, V.-P., Power & Macdougall, JU.A.

Date of Hearing: 18 August 1992

Date of Judgment: 18 August 1992

Date of Reasons handed down: 8 September 1992

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J U D G M E N T

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Silke, V.-P.:

1. On 19th April 1990.a 16-year old girl, recently employed by the Nice Shopping Company - a boutique in the Amoy Shopping Plaza at 77, Ngau Tau Kok Road - was going about her duties. One of those duties was to wash coffee cups in a nearby private set of female and male toilets. These toilets lay behind a wooden door which needed a key to open it, thus shutting them off from the public area.

2. When the girl opened the door she was followed into the toilet area by a man. This man then came upon her from behind, put a piece of string around her neck and pulled her into the male toilets. There she was stabbed twice in the neck: an upward thrust with a folding knife severing her inner jugular vein and another upward thrust severing her windpipe. She also suffered minor injuries to her person which were indicative of a struggle.

3. Bleeding heavily, she staggered to her work place and there collapsed. In answer to certain questions put to her before she was taken to hospital she gave.a general description of her assailant including that he wore jeans.

4. On arrival at hospital she was certified as dead.

5. The appellant, Tsui Kwok Fu, was indicted for her murder and, after trial before Ryan, J. and a jury, was convicted. He now seeks leave to appeal that conviction.

6. There being matters of law raised by Mr. Grounds, who appeared for him in this court, we gave the necessary leave, treated the hearing of the application as the hearing of the appeal but dismissed the appeal. We stated we would hand down our reasons later. This we now do.

7. It was the case for the Crown that the appellant was the man who followed the deceased into the toilets. This rested in part upon a statement he made after arrest, in part on the finding of keys and a key-ring, his property, at the site of the killing, in part on the finding of various items in the flat in which he was living, in part on a video re-construction of the events which was placed before the jury and, finally, the contents of an answer to charge.

8. Upon finding the keys at the site, and a further key in the deceased's pocket, the investigators had them duplicated. The key cutter thought he recognised some of the keys as similar to those used to open the ground floor gate of a nearby residential block called the Amoy Gardens. The police found this to be so. They then tested the remaining keys in all the flats in Block F of Amoy Gardens. Eventually they found that those keys were capable of opening the lock on Flat 1603. This was where the appellant was then living with his relatives. He had come to Hong Kong from Shanghai about 10 days before 19th April.

9. Upon a search of the flat they found, in a cubicle occupied by the appellant, a folding knife on top of a cupboard and a pair of bloodstained shoes. In the bathroom they found of a pair of jeans which had just been washed. All these were admitted to have belonged to the appellant.

10. In his statement under caution, the appellant admitted seeing the girl going to the toilet; following her; putting a piece of string around her neck and then dragging her into the male toilet. He said that he intended to rape her but he desisted as he thought she was too young. He told her to go. She shouted out and he then, as he put it, "in momentary haste" stabbed her twice in the neck. A little further on in the statement he said:

"I was being momentarily muddle-headed to have done this wrong and hope I could be leniently dealt with."

In the answer to charge, which was exhibit 44, he, having admitted he did something wrong, said:

"It is not I want to kill person as ... Then, I could not bear to treat the young girl, because she was too small. Afterwards, I slashed her head twice with a knife. Following that, I saw her bleeding. then, I could not bear and said to the young girl, 'Don't move. Shortly after I leave, you can go.' "

11. In his main statement he said that, after the killing, he had picked up a purse dropped by the girl to see if there was any money in it. He had taken that purse away and later disposed of it together with the piece of string he had used to put around the girl's neck. He went home and found that his keys were missing but was eventually let into the flat by his grandmother. He washed the blood from the knife and also the blood on his shoes.

12. His mother identified the key-ring found as one which she had provided for him. The appellant identified the knife which was seized in his home as the one he had used in the killing.

13. The confessional statements had been admitted in evidence after a voir dire and were contested before the jury by counsel then appearing for the appellant - the appellant gave no evidence - in an attempt to cast doubt upon their truthfulness and reliability. All this was fully left to the jury. As the judge put it at page 15 line 17:

"So it's the defence case that P46 is a total fabrication and that it was signed by the accused because his will had been broken down by threats and assaults. You will have to have regard to that suggestion. When you come to consider the context of the statement, if you feel any unease about it, if you feel that this may have happened, that the defendant, the accused may not have voluntarily given this information, then of course you would have no regard to the statement, or if you felt that the statement contents were not true, you would not have regard to it. But if after considering everything you are satisfied that the circumstances were such that the accused did, when confronted by the police, admit to having done this crime, then you would be entitled to act upon the admission that P46 contains."   

14. In his amended perfected grounds of appeal against conviction, Mr. Grounds advanced four main issues, with his fifth ground being the roll-up that, as a result of the other four grounds and in all the circumstances of the case, the verdict was unsafe and unsatisfactory.

15. His first ground alleges that there was a material irregularity in the trial in that a set of photographs, which had not been admitted in evidence and which did not relate to the case, had mistakenly been placed before the jury and may have prejudiced the appellant.

16. We have been informed in the course of the hearing that there had been a second count in the indictment which was not proceeded with before the jury and of which the jury were unaware. That related to attempted murder at the same place in 1987.

17. At trial, and before the evidence of the first witness called was entered into, counsel then appearing for the Crown informed the judge and the jury that she was about to produce photographs of the scene by consent. She informed the court of the fact of the taking of the 34 photographs of the scene on 19th April, also, on 19th April, photographs of the defendant's home at Room 1603 and, on 20th April, photographs of the body of the deceased.

18. There was also produced sketch plans of the ground floor of the Amoy Shopping Plaza. Counsel appearing for the appellant then asked to check these before they were handed to the jury and, having done so, informed the court that one of them was not relevant to the trial. That did not go before the jury. Presumably that also related to the untried count.

19. There were various references made to the photographs during examination-in-chief and cross-examination of witnesses called by the Crown. The trial judge summed up and, when the jury returned from their deliberations, the transcript shows what transpired:

"Court: Just wait for a minute and see what the next question is.

Clerk: Are you unanimous?

Foreman: Yes, but there is a question.

Court: Well let's hear the question then.

Foreman: After we came to a verdict, we discovered.that there was evidence that was given to us that was not discussed. There's a series of photographs that appear to be from 1987 that aren't quite different from everything else we have been given, and we have questions about that.

Court: Yes, I see.

Foreman: What we needed to know was if they have any bearing, then - otherwise we do have a verdict if they don't.

Court: I wonder if you wouldn't mind just going back to the jury room while I'll discuss this development with counsel.

Foreman: Yes.

Court: Thank you.

Mr. Sceats: I wonder if those photographs could be left so that we can see exactly...

Foreman: Definitely.

20. July leaves court - 3.17 pm

Court: Does anyone know how that came about?

Mr. Sceats: I certainly did not hand over the exhibits to the jury.

Court: (To clerk) Do you know how these got to the jury.

Clerk: No.

Court: These were not around my desk when they - when we had the case. You'd better have a look at them, Mr Sceats and Ms Ravenscroft.

Mr. Sceats: My Lord, there is nothing on this that would indicate to the jury what matter it relates to. It does show of course scenes that are similar to those in the photographs that they have seen that are relevant to this case. There is certainly nothing that indicates any connection of the accused with these photographs in any way at all.

Court: Yes. Do you want to say anything about that?

Ms Ravenscroft: No, one can only really endorse what Mr Sceats said, that it shows really the photographs of another scene of crime.

Mr Sceats: The indication that it relates to a matter in 1987 of course appears on the face of the book of photographs on the cover of it, and I would have thought that your Lordship can direct the jury that these are totally irrelevant to the matter...

Court: Yes.

Mr Sceats: ... and relating to some other case that somehow or other shouldn't have got in their possession, that they are irrelevant.

Court: Yes. Call the jury back, would you.

21. Jury enters court - 3.20 p.m.

Court: Madam, you said earlier that you had reached a verdict. I want to first tell you that these photographs are totally irrelevant to the case that we have been hearing. I don't know how they came to be before you. They certainly weren't before me at any stage.. But the point is that they are in no way related to this case and are totally irrelevant. But what I need to know from you - you've mentioned about having a verdict - if your verdict has been reached without any regard to those.

Foreman: Yes, we did reach a verdict and we rang the bell, and then we discovered there's a series of photographs completely...

Court: Yes. So you reached a verdict before you ever saw those photographs?

Foreman: We did.

Court: Well in any event they are irrelevant but that is important that you reached your verdict before your attention was ever drawn to those photographs.

Foreman: I believe some of the members had seen some of the photographs but - there was some confusion. It wasn't taken into our discussion as we went around.

Court: Can the jury then all confirm to me that these photographs were not influential in any way in reaching your verdict. could you all indicate to me to that extent.

(All jurors confirm by nodding their heads)

Can I take it that you all agree on that, that your verdict was reached without being in any way influenced by these irrelevant photographs? Yes. We will proceed then to take the verdict."

22. It is Mr. Ground's contention that it may have been the case that these photographs, marked as they are with a police number "(NTKCCR 1566/87)" indicating criminal proceedings, may have been before the jury from virtually the start of the trial; that they are inadmissible and that there was a grave danger that some jurors could have been unduly prejudiced before they reached their verdicts. He relies on the various reference to photographs made throughout the trial, to evidence given that the appellant in 1987 or 1988 had come to Hong Kong once and to evidence that he was a recent arrival from China on the day of the incident. He further - and this is ground 2 - complains that the trial judge questioned the jury about the photographs in the passage from the transcript just recited, on the basis that it was improper for him to question them at all and, in any event, the questions were leading and would have taken the jury by surprise thereby reducing the value of any answer given by the foreman or gestures made by the individual jurors.

23. We accept without hesitation.that these photographs should not have been before the jury. How they got there is unknown. That was clearly a material irregularity. However, we do not accept that the trial judge was disentitled from taking the course he did and asking the questions as he did. This matter took everyone by surprise and it was of great importance that the position be clarified.

24. With respect, we consider the judge to have dealt with this in an exemplary fashion. We do not think that his questions were in any way the "forcing" that Mr. Ground suggested they were, or that they put the answers into the jury's mouth. The judge made it plain beyond peradventure that the photographs.had no relevance to the case . We have looked at them and while they bear great similarity to the 34 photographs of the scene taken in April 1990 there are significant and material differences. Even if the jury had in some way considered them - as the foreman's answer at page 22:

"I believe some of the members had seen some of the photographs but - there was some confusion. It wasn't taken into our discussion as we went around"

would seem to suggest - the answers given by the foreman, and the responses by the jurors, that these photographs played no part in their coming to their verdict were accepted by all concerned at the trial. We find nothing in the submissions of Mr. Grounds which causes us to go behind that acceptance.

25. While this should never have happened, the fact of the photographs being with the jury did not in our view amount to a miscarriage of justice or make this conviction in any way unsafe or unsatisfactory.

26. The next ground complains of the failure of the trial judge to leave manslaughter to the jury. Mr. Grounds submits that the judge should have directed the jury that if they were not sure that the accused intended to kill the deceased or cause her grievous bodily harm, then a verdict of manslaughter could be returned. He relies for this proposition on certain phraseology used both in the cautioned statement and in the answer to charge. He suggests that the trial judge should have given a mixed statement direction on the lines of Sharp [1988] 1 WLR 7, a decision of the House of Lords which has been adopted in these courts in preference to an earlier decision the Judicial Committee of the Privy Council R. v. Leung Kam Kwok [1986] HKLR 188.

27. It was never suggested at trial that manslaughter was a viable alternative. Indeed, the appellant's counsel, in a valiant attempt to distance him from the events which took place, described the killing of the girl as a callous, brutal murder. We accept, however, that if a defence emerges, even though it may not be felied upon by counsel for the defence, it is the duty of the judge to draw it to the attention of the jury. Mr. Grounds seeks to rely on that which was said by Viscount Simon, L.C. in delivering the judgment.of the House of Lords in Mancini v. Director of Public Prosecution [1942] AC 1 at p.7 where the Lord Chancellor said:

"Although the appellant's case at the trial as in substance that he had been compelled to use his weapon in necessary self-defence - a defence which, if it had been accepted by the jury, would have resulted in his complete acquittal - it was undoubtedly the duty of the judge, in summing up to the jury, to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter." (Emphasis supplied)

28. In Fairbanks [1986] 83 Cr App R 251, Mustill, L.J. (as he then was) in giving the judgment of the English Court of Appeal said at page 255, having made reference to various authorities for the proposition that alternative defences must be left to a jury:

"These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case has been presented to the Court: for example if the defence has never sought to deny that the full offence charged had been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense."

29. While those comments were made in relation to a road traffic offence appeal where there were viable alternatives upon which the jury should have been directed, nevertheless, that which Mustill, L.J. had to say is pertinent here. The trial was run on an all or nothing basis. Mr. Grounds laid emphasis on the phraseology used particularly the words "in haste", "muddle-headed" and "I did not intend to kill person." In the context of this evidence given at it, and given the wounds trial, and the and the method of their causing, we do not consider the judge was in any way in error in not taking it upon himself to leave manslaughter to the jury.

30. Ground 4 is really a plea that judges should, having given a direction on inferences, immediately follow that direction by the necessary direction on the burden of proof.

31. Here, the trial judge at page 2 of the summing up had given a clear and concise direction on inferences which concluding by saying:

"So that if you have a set of facts that you are satisfied.have been proved, and from those facts that you could draw an inference that was adverse to the accused, or you could draw an inference that was not, then you must not draw the inference that is adverse to him. So you can draw inferences, and you can draw inferences against the accused if that is the only inference in the circumstances that you feel can reasonably be drawn."

32. At page 4 he gave an impeccable direction on the burden and standard of proof. The intervening paragraphs referred to what the jury might consider to be, or not to be, evidence.

33. Mr. Grounds allies to this complaint a submission that it is necessary to make clear to the jury that the word "reasonably" means "rationally". He suggests that a juror, or the whole jury, may have thought that an inference could be drawn even though another "unreasonable (i.e. unlikely, still possible but nevertheless rational) inference existed."

34. Juries must be given credit for some degree of common sense. For the judge to go in to a philological discussion with them as to the meaning of "reasonable" has generally been disapproved - this usually in the context of explanation of what is a reasonable doubt. Similarly, to enter into a dissertation on the difference, if there be one, between "reasonably" and "rationally" is more likely to confuse a jury than anything else. We do not think that it is incumbent on a trial judge to take such a course.

35. In the event, we found nothing unsafe or unsatisfactory in this conviction and, as we have indicated, we dismissed the appeal.

Representation:

Christopher Grounds, Esq. (D.L.A.) for Applicant

I.G. Cross, Esq., Q.C. & W.S. Cheung, Esq. for Crown/Respondent