HKSAR v. Cheung Ki Wing

CACC000331/2000

CACC 331/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 331 OF 2000

(ON APPEAL FROM HCCC 248 OF 1999)

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Coram: Hon Stuart-Moore Ag CJHC, Wong and Stock JJA

Date of Hearing: 10 April 2001

Date of Judgment: 10 April 2001

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J U D G M E N T

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Stuart-Moore Ag CJHC (giving the judgment of the Court):

Introduction

1. On 26 July 2000, following a trial before Lugar-Mawson J and a jury, the Applicant was convicted of robbery (count 1) and murder (count 2). He now seeks leave to appeal against conviction on the second count alone.

2. Although there is no appeal against the conviction for robbery, it is not without interest that the jury convicted the Applicant of this offence which the prosecution had alleged was the motive for the killing. The judge left the lesser alternative of theft open for the jury's consideration on the basis that they should convict of theft if the Applicant had only formed an intention to steal after he had rendered the victim unconscious.

Prosecution's case

3. Much of the case for the prosecution can be pieced together from the Applicant's own account given in video-recorded interviews with the police of his involvement in the killing. Shortly before 2.00 a.m. on 10 April 1999, Chau Lai-fong (the victim) aged 20, who worked as a shop assistant was using the footbridge from the railway station at Sheung Shui to walk home. She had spent the evening drinking with friends and had become drunk in the process.

4. The Applicant, who was 26, was a kitchen worker and was making his way to work when he noticed that the victim was in a drunken state. She was holding the railing to enable her to walk. He also noticed that she was wearing a gold chain which, as he was later to confess, made him feel "greedy". However, he did not snatch the necklace at that time because there were security guards in the area.

5. The victim was a total stranger to the Applicant. He asked her if he could assist her to get home. It seems that the victim asked him if she could go to his residence to have a drink of water. He then, by lending support to her arm, took her back with him to Flat 1033, Block 2, Choi Wu House, on the Choi Yuen Estate, where the closed circuit television in the lift recorded the Applicant in the victim's company at about 2.00 a.m. as they made their way to his flat on the 10th floor.

6. After the Applicant had taken the victim inside his flat, it seems that she borrowed his telephone to make a call. She then wanted to leave but was prevented by the Applicant from doing so. This was because he wanted to take her gold chain and her money. He described how he grabbed her with both arms because he had a "bad idea". The victim cried out and put up some resistance.

7. The prosecution alleged that the Applicant then deliberately killed the victim in order to steal her jewellery and other belongings. According to his own account to the police he first of all strangled her while straddling her body as she lay face upwards on the floor until she lost consciousness. He had "clasped" her neck with his fingernails going into the victim's skin, while using his right hand to stop her shouting for help. The Applicant next put some wide adhesive tape tightly round the victim's nose and mouth. This tape had been left over from decorating he had done. The prosecution alleged that he did this to make sure she died because the Applicant had seen that the victim was still alive after his first attempt to strangle her. After this, he could see that the victim was still alive. He then repeated his attempt to strangle the victim, this time using both hands to "clasp" her neck as he straddled her body. After this, he dumped her body in a cardboard box inside a refuse room two floors below his flat and covered it with rubbish. After the second strangulation, the victim showed no sign of movement. However, as he carried the victim's body down the stairs he noticed she was "quivering".

8. The body was discovered on the same day at 10.10 a.m. by a cleaning worker. The victim's jewellery, cash, handbag and "discman" had all been taken. In due course, a fingerprint which was identified as one of the Applicant's was found on the outside of the carton used to contain the victim's body.

9. Three days later, at 10.00 p.m. on 13 April 1999, the Applicant surrendered himself to police. His detailed confessions as to his involvement in the killing included his admission that he had taken some of the victim's belongings. These included her necklace, a pendant and a diamond ring which he had pawned, $500 in cash, and her discman which he had discarded. Subsequent enquiries, based on the Applicant's information, led to the recovery of the items which he had pawned. These had raised a total of $2,800. Police were also able to find the discman at the location where the Applicant had described throwing it away.

10. The post-mortem established that the victim had died of suffocation. Under the victim's left fingernails were found samples containing sufficient DNA to establish a match with the Applicant's blood. The Applicant had been scratched in a number of places by the victim in her desperate struggle for life.

11. The victim's body had 25 injuries, but the most striking were those to her neck and face which are graphically illustrated in the photographs. The lacerations were probably caused by the Applicant's fingernails penetrating the victim's skin. Internally, the thyroid cartilage was found to have been fractured. The pathologist expressed the opinion that so far as the adhesive tape was concerned, which had been wound round the victim's head, including her nose and mouth, this would have led to the victim being unable to breathe within 2 to 5 minutes. The tape had been applied tightly, so tightly in fact that it had squeezed the blood from the parts of the head covered by the tape. Again, this is clearly demonstrated by reference to the photographs.

Defence case

12. The Applicant admitted he had caused the victim's death but his evidence was that he had overreacted when he tried to prevent the victim leaving his flat. The victim had become unconscious when he "grasped" her neck and, in order to prevent her shouting out again when she awoke, he had wound tape around her mouth, not realising, contrary to his earlier admissions to police, that it had also covered her nose. He also said that he had not tried to strangle the victim a second time. The reason, he explained, that the interview videotapes recorded an admission that he had tried to strangle the victim twice was because of confusion which had led to a mistake on his part. He then carried her body down the two flights of stairs where he left the body in a carton, having first stolen the victim's jewellery and belongings.

13. The Applicant denied that the motive for his violence towards the victim was in order to rob her. He said, again contrary to his earlier confession, that he had not formed any intention to steal until after the victim lost consciousness. He said that he placed the victim's body in the carton hoping that when she recovered consciousness, she would be able to free herself.

The issue

14. The central issue at trial was concerned with the Applicant's intent at the time of his actions which had led to the victim's death.

Grounds of appeal

15. Against this background, Mr Whitehouse has advanced three substantive grounds of appeal. The first of these alleged that the jury was inadequately directed in relation to the Applicant's intention "at the time when he caused the death of the (victim)". The second ground, which is closely linked, alleged that the judge had failed "to distinguish between the two different hostile acts committed by the (Applicant) to the victim, either of which was or might have been committed with a different intention."

16. In essence, Mr Whitehouse's complaint was that the judge was wrong to have treated the strangulation, followed by the suffocation, and possible further strangulation, as a "series of acts" culminating in the death of the victim. He contended that the judge should have directed the jury specifically to consider the Applicant's intention at the time when he had wrapped the tape around the victim's head instead of treating the strangulations and suffocation as an ongoing series of acts with no break in the chain of causation. Mr Whitehouse submitted that at least the judge should have left the matter on the basis that "the eventual killing by suffocation was not or may not have been part of a preconceived plan to kill the victim". He argued that if that was the jury's finding then, in such circumstances, the Applicant's intention at the time of the strangulation should have been disregarded and "they should have been told that it was only his intention at the time the tape was applied which was relevant".

17. In advancing these submissions, Mr Whitehouse relied on Thabo Meli v R [1954] 1 WLR 228; [1954] All ER 373; and R v Church [1966] 49 Cr App R 206. Neither of these cases, so far as we can see, assisted the Applicant. They were concerned with assaults on victims who ultimately died as the result of the way their bodies were disposed of after the assaults. The victims in each case, unlike the case presently before us, were believed to be dead at the time of the disposal of the victims' bodies. These cases were both considered in HKSAR v Lam Chun-wah [1999] 3 HKLRD 381 where, at 392, this court summarised their effect in this way:

"In the course of argument we were referred to the well-known judgment of Lord Reid given in Thabo Meli and others v R, (1954) 1 All E R 373, when advising that the appeal should be dismissed. In that case there had been a preconceived plan to kill the victim and then to fake an accident following the killing. The victim was rendered partially intoxicated before he was struck over the back of the head. This caused the victim to lose consciousness but he was still, unbeknown to the accused, alive when he was rolled over a cliff. The victim subsequently died of exposure. Lord Reid stated the point of law, at page 374 in his brief judgment, as follows:

'It is said that two acts were done - first, the attack in the hut; and, secondly, the placing of the body outside afterwards - and that they were separate acts. It is said that, while the first act was accompanied by mens rea, it was not the cause of death; but that the second act, while it was the cause of death, was not accompanied by mens rea; and on that ground, it is said that the accused are not guilty of murder, though they may have been guilty of culpable homicide. It is said that the mens rea necessary to establish murder is an intention to kill, and that there could be no intention to kill when the accused thought that the man was already dead, so their original intention to kill had ceased before they did the act which caused the man's death. It appears to their Lordships impossible to divide up what was really one series of acts in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan, and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before, in fact, it was achieved, therefore they are to escape the penalties of the law. Their Lordships do not think that this is a matter which is susceptible of elaboration. There appears to be no case, either in South Africa or England, or for that matter elsewhere, which resembles the present. Their Lordships can find no difference relevant to the present case between the law of South Africa and the law of England; and they are of opinion that by both laws there can be no separation such as that for which the accused contend. Their crime is not reduced from murder to a lesser crime merely because the accused were under some misapprehension for a time during the completion of their criminal plot.'

The rationale in Thabo Meli's case was followed in R v Church, (1965) 49 Cr App R 206. In that case, having inflicted serious injuries on the victim, the appellant flung the victim's body into a river. The victim (Mrs Nott) died of drowning. The appellant's defence was that, at the time when he committed the last act of throwing his victim into the river, he believed her to be dead.

The judgment in Church highlights an unduly benevolent direction given to the jury which may well account for the jury's verdict of acquittal on the charge of murder but conviction on the alternative of manslaughter. More to the point, for present purposes, the Court adopted the view of Dr Glanville Williams, as appears from the judgment at page 214, that in these circumstances 'the jury should have been told that if a killing by the first act would have been manslaughter, a later destruction of the supposed corpse would also be manslaughter'. Continuing the judgment, Edmund Davies J. said:

'Had Mrs Nott died of her initial injuries, a manslaughter verdict might quite conceivably have been returned on the basis that the accused inflicted them under the influence of provocation or that the jury were not convinced that they were inflicted with murderous intent. All that was lacking in the direction given in this case was that, when the judge turned to consider manslaughter, he did not again tell the jury that they were entitled (if they thought fit) to regard the conduct of the accused in relation to Mrs Nott as constituting throughout a series of acts which culminated in her death, and that, if that was how they regarded the accused's behaviour, it mattered not whether he believed her to be alive or dead when he threw her in the river.'"

18. Mr Saw, SC, on behalf of the Respondent, submitted that in the present case there was nothing in the evidence to support the proposition that there had been two separate acts of violence calling for separate directions in relation to the Applicant's intent at the time he committed each act. In our judgment, the Applicant had plainly committed a single series of acts which resulted in death. The only issue for the jury to determine was whether the Applicant was guilty of murder or, alternatively, manslaughter by reason of his lack of intent at the time of his unlawful acts upon the victim.

19. The legal position which has arisen in the present case was succinctly dealt with in R v John Le Brun [1992] 94 Cr App R 101 where the appellant had been convicted of manslaughter. Lord Lane CJ, at p. 106 said:

"It seems to us that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant's subsequent actions which caused death, after the initial unlawful blow, are designed to conceal his commission of the original unlawful assault."

20. There was, of course, no "appreciable interval" in the present case between any of the Applicant's hostile acts towards the victim. The jury had to decide what the Applicant's intention was at the time he did those acts which ultimately brought about the victim's death. Mr Saw likened the Applicant's position to a defendant accused of murder, having inflicted three stab wounds, where only the second wound proved fatal. He submitted that this would have been, for all practical purposes, the same as in the present case where the Applicant had first strangled the victim, then sealed her air-supply before finally strangling her again.

21. We agree with this submission and we feel bound to say that it is difficult to see how the act of suffocation, as admitted in the video-recorded interviews and as described by the pathologist could, in reality, have been effected with any other intent than that which is required for murder. Nevertheless, the matter was very properly left open for the jury to decide.

22. The judge's directions which are relevant to this application were in these terms:

"I shall now deal with each of those essential ingredients or elements of the offence of murder in turn. The first ingredient or element that you have to be sure about before you can convict the defendant of murder is that the defendant committed an act or acts which caused Chau Lai-fong's death. The law is that before you may find the defendant guilty of murder, or indeed of any lesser offence of manslaughter, which I shall define to you shortly, you must be sure that the defendant's act or acts was or were the cause of her death. I do not think that you will have .... difficulty in this case in deciding that the defendant strangled Chau Lai-fong and then wound adhesive plastic tape around her mouth and nose. And that it was as a direct result of those two acts that she met her death. The defendant does not dispute that he did those acts. And it is clear from Dr Poon's findings that those acts caused her death by suffocation." (Tr. pp. 9-10)

23. A little later the judge, when dealing with intent, said:

".... you must proceed to consider the third ingredient or element, and that is whether the prosecution has also made you sure that at the time when the defendant strangled Chau Lai-fong and wrapped the plastic adhesive tape around her mouth and nose, he either intended to kill her or intended to cause her really serious bodily harm.

Let me make it very clear to you - you must be sure that when the defendant did those acts he either intended to kill Chau Lai-fong or intended to cause her really serious bodily harm." (Tr. p. 11)

24. The judge then turned to the jury's approach to the drawing of inferences before saying:

"You should look at the evidence of his actions before, at the time of and after he strangled Chau Lai-fong and wrapped the plastic adhesive tape around her mouth and nose. All of those things may shed light on his intention at the critical time.

But, gentlemen, I must make this clear to you. You may not infer that the defendant intended to kill Chau Lai-fong or to do her really serious bodily harm unless you are sure that death or really serious bodily harm was a virtual certainty as a result of his actions, and that the defendant had appreciated that such was the case." (Tr. p. 11)

25. Those directions were, in our judgment, properly tailored to meet the circumstances of this case.

26. These grounds fail.

27. In his third ground of appeal, Mr Whitehouse complained that the judge had misdirected the jury in regard to the effect of the admissions made by the Applicant during his interviews and a later reconstruction of the crime all of which had been video-recorded. He submitted that the judge, when summing up, appeared to have adopted the prosecution's assertion that the interviews contained an admission that the Applicant had intentionally killed the victim. The specific passage about which complaint was made was as follows:

"Let me deal with the video-recorded interviews first. You have before you three video-recorded interviews that the police conducted with the defendant. You also have a reconstruction video. You have all seen the videos. You have transcripts in both in English and in Chinese of the soundtracks of all four of them. The prosecution asserts that although you should not accept everything said by the defendant to the police as being accurate, nonetheless what he said in the interviews and during the reconstruction contain admissions by the defendant that he intentionally killed Chau Lai-fong, and the prosecution further contend that those admissions are true." (Tr. p. 23)

28. This passage does not, in our view, amount to more than the jury being reminded about how the prosecution had put their case so far as it related to the Applicant's confession. They had alleged that the answers provided by the Applicant effectively amounted to an admission of an intention to kill although at no stage had the Applicant said so in these precise terms.

29. Later in his summing up (at page 25 of the transcript), the judge went on to say that prosecuting counsel had, in his final speech, directed the jury's attention to certain passages which counsel had argued showed "very clearly" that the Applicant must have had the intention either to kill the victim or to cause her really serious harm. The judge then reminded jury where those passages were to be found in the exhibited transcripts.

30. The judge's directions were not, in our judgment, open to any criticism. This ground, therefore, must also fail.

Conclusion

31. The Applicant was convicted on overwhelming evidence establishing his guilt. There is nothing which causes us to say that the verdict was unsafe or unsatisfactory.

32. Accordingly, this application is dismissed.

Representation:

Mr D.G. Saw, SC, DDPP and Mr Jackson Poon, SGC, of the Department of Justice, for the Respondent.

Mr Frederic Whitehouse, instructed by The Director of Legal Aid, for the Applicant.