The Queen v. Ho Sun Wai

CACC000332/1988

Coram: Hon. Silke , V.-P., Kempster & Power, JJ. A.

Date of Hearing: 16 February 1988

Date of Judgment: 16 February 1988

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J U D G N E N T

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Power, J. A.:

1. The applicant faced two charges, one of murder and one of wounding with intent to cause grievous bodily harm, the particulars of the murder offence were that he on 19th August 1987 at Room C2406 King On House, Shan King Estate, Tuen Mun, New Territories, ourdered Lin Ngan-man, Lin Ngan-man being his wife. The particulars of the wounding offence were that he, on the same day and at the same place unlawfully and maliciously wounded Tsui So-fong with intent to cause her grievous bodily harm, Miss, Tsui was a Social Welfare worker who was accompanying his wife on a visit to the applicant at the premises named. The applicant pleaded not guilty to both charges and was, after trial before a judge and jury convicted of the lesser charge of manslaughter and of the charge of wounding with intent. He was sentenced to seven years on the 1st charge and three years on the 2nd charge and the sentences were ordered to be served concurrently.

2. The facts are succintly set out by Duffy, J., in his Summing-up as follows:

"On the 19th of August 1987 Lin Ngan-man a 30-year-old mother of two children and wife of the defendant, was most brutally done to death by him in the family home at Flat C2406 King On House, Shan King Estate Tuen Mun, in the New Territories. The couple had peen living apart - the wife and children in accommodation provided by the Social Welfare Department and the defendant in the family home. However, a court order had keen made to the effect that the defendant should move out of the family home to give way to his wife and children. And on this day in August last year, the wife accompanied by a social worker Mrs. Tsui So-fong, went there to have the key of the flat handed over to them

Madam Tsui had been working on the case for a few months and there was at least during those months a history of unhappy relations between husband and wife.

On the day in question the wife, the deceased, and Madam Tsui arrived at the flat some time around 10.1.5 and it was not long before the bickering started with initially only the defendant doing the talking and than later the deceased joining in. This all culminated in a chopper appering and Madam Tsui receiving three wounds to the head, following which she fled from the flat where there then ensued what Dr. Hau Kong-lung, the pathologist agreed was properly described as a killing frenzy and the deceased received over one hundred wounds to her body caused by the chopper, Exhibit P.68, and the scissors, Exhibit P.19, as a result of which she died."

3. The issues raised by the defence at the trial were summed up by the trial judge to the jury in the following way:

"The prosecution say the defendant is guilty of murder. And the defendant while conceding that he did kill his wife claims that lie killed her in self-defence so that he should be acquitted altogether or at most should be found guilty of manslaughter because he was provoked into killing her, as well as which there has been evidence about the defendant's mental state at the time, which allows a possible verdict of manslaughter on the basis of diminished responsibility."

4. It was the applicant case that there had been a series of attacks upon him by his wife culminating life endangering attempt to stab him with scissors.

5. The applicant in his Grounds of Appeal, which were drawn by himself, as regards the manslaughter verdict suggested that the trial judge misdirected the jury and that the jury had not considered in depth doubtful points in the evidence. As to the wounding with intent charge he says again that the trial judge did not carefully consider doubtful points in the victim's testimony and misdirected the jury and that the testimony of the prosecution witnesses was inconsistent and deviated from facts.

6. When be came to address this court he referred firstly to what he alleged were the misdirections by the trial judge.

7. The first if these he said appeared at p.2 of the summing-up in the passage which we have just read.

8. The applicant says that he never admitted manslaughter and that the trial judge should not have indicated to the jury that he had killed his wife. It is not easy to grasp the point which the applicant is attempting to make in this regard as it was never an issue in the trial that he had caused the death of his wife. The trial judge was doing no more there than outlining the possible defences, given that he had caused his wife's death. The applicant suggests that the trial judge was here indicating to the jury that be had admitted guilt and that this was a matter which should have been left to the jury. This is, of course, no so. He find nothing in the suggestion that there was any misdirection in this passage in the summing-up.

9. The next passage to which the applicant takes objection appears at p.20 of the Summing-up where the trial judge said:

"Would such a man with or without these characteristics in circumstances similar to those in which the defendant found himself have reacted to the Provocation as the defendant did? Would he have launched a frenzied attack upon his wife and killed her?

If you conclude that the defendant was not provoked Into losing his self-control or you conclude that the reasonable man would not have responded to the provocation as the defendant did, if either of these decisions is against the defendant, and subject to other considerations your verdict will he guilty of murder.   

If you say 'yes' to both Points or if you say 'I am not sure,' or 'it might possibly be so' to both points, then your verdict will he guilty of manslaughter."

10. This was, we are satisfied, a proper direction. The trial judge left the matter entirely to the jury. The objection of the applicant seems to be that the trial judge, when directing the jury at this point in his Summing-up, made no mention of salt-defence. It is true that he did not. He had however, already dealt fully with self-defence earlier in the Summing-up and was at this point dealing with the defence of provocation. At P.12 of the Summing-up the trial judge had said:

"A killing in lawful self defence is not an offence. And self-defence is lawful when it is necessary to use force to resistor defend against an attack and when the amount of force used is reasonable. What is reasonable force will depend on the circumstances and yon may take a number of factors into account such as who was doing the attacking, was that person using a weapon, was it a serious and dangerous attack so that, the defendant thought himself to be in immediate danger so that it was necessary for him to avert that dander by using force?"

11. Again we find nothing in the objection to this passage in the Summing-up.

12. The next objection taken is a passage at p.11 in which the trial judge said:

"There is also evidence now before you that the defendant was at the time of killing his wife suffering from an abnormality of mind so that his mental responsibility for his acts was substantially impaired. If you accept that that was, probably the case, then your verdict would be one of manslaughter on the basis of diminished responsibility."

13. It is the suggestion of the applicant that the trial judge Should never have made this observation to the jury. His objection is, it seemed, based anon the use of the words "at the time of the killing of his wife". The phrase was certainly used but in the context of the trial and given the need to explain the defence of diminished responsibility, the use was a perfectly proper one.

14. The next matter to which objection was taken arose when the jury returned to ask for further directions. The jury came back at 5.45 p.m. and handed a note up to the judge. The note up to the judge, the note read as follows:

"We do not know the exact wording of our conclusion: (1) Murder with provocation, (2) Manslaughter with provocation, (3) Killing Please help clarify. Actually we have already finalized our verdict."

15. The applicant suggests that if their possible verdict was killing then it may have been if they were intending to return a verdict of lawful killing and, that he should therefore have been acquitted. The trial judge gave them what was a correct explanation as to the way in which they should phrase their verdict. We said :

"Members of the jury, let me just remind you what your possible verdicts can be. The charge is one of murder. If you find that this defendant unlawfully killed the deceased intending to do so or intending at least to cause her grievous bodily harm, your verdict subject to any considerations of diminished responsibility or provocation, would he guilty of murde......

If you think that the Crown have failed to prove that the killing was unlawful in the sense that they have failed to prove that it was not a, lawful self-defence, your verdict would he not guilty of murder.

If you decide that the Crown have not proved that he was not provoked, your verdict would he guilty of manslaughter. If you find that he had an abnormality of mind arising from a depressive illness and that that substantially impaired his responsibility for his acts, your verdict would be guilty of manslaughter if you found that was More likely than not. Remember that has to he established.

If you find manslaughter, we do not want to know the basis upon which you reach your verdict of manslaughter. Your verdict could simply be manslaughter. So your verdict can be guilty of murder, not guilty of murder, guilty of manslaughter."

16. This was a proper and clear direction is to the way in which the jury should return their verdict and there is, we are satisfied, no substance in the applicant's arguments in this regard.

17. The final objection to the directions in the Summing-up as to manslaughter was that the trial judge mentioned the word "provocation" over 100 times and that he did not mention the word "self-defence" anywhere nearly as many times as this. It seems to be suggested that the trial judge was in some way dismissive of self-defence and was really bearing to the jury only the possibility that provocation might be open. When the summing-up is read as a whole it can be seen that this was not so at all. The trial judge very clearly in terms which I have already read indicated to the jury what was necessary to establish self-defence and we have no doubt that the jury must have had this in their mind when they came to consider the evidence.

18. There was one final minor matter raised with regard to the Summing-up and this was concerned with the passage at p.17 where the trial judge said:

"You will probably have no difficulty in coming to the conclusion that any wounds which appeared on the body of the dead wife were inflicted by this defendant:"

19. It has the defendant's contention that the stab wounds were not inflicted by him and indeed that they could not have been inflicted by using a chopper. However that may he the matter was very much one for the jury and it was, as the passage which I have just read out shows, left for the jury to make their own conclusion thereon. There is again nothing in this objection to the summing-up.

20. The matters raised by the applicant have all been canvassed in the foregoing and none of the objections which have been made to the Summing-up occasion us any doubt as to its propriety or as to the propriety of the conviction of manslaughter. Leave to appeal against that conviction is refused.

21. I turn now to the objection taken to the conviction of wounding with intent to cause grievous bodily harm. It was the contention of the Defence at the trial, as it has been before us, that Mrs. Tsui sustained her injuries while trying to snatch the knife from the applicant and that these were accidental injuries. The applicant pointed to the evidence of Mrs. Tsui, at p.121 of the record where she said that she had been chopped on her head and that the chopper had been brought down onto her head and he pointed to another passage where she indicated to the judge that the chopper had landed on the top of her head. This evidence was not consistent with the medical report and the applicant suggests that the trial judge in his summing-up uncritically accepted the evidence of Madam Tsui and did not deal in an even handed way with the possibility that she might have been mistaken or untruthful with regard to the nature of her injuries. He suggested this was a very important matter as it bore upon the contention of the Defence that the injuries were received accidentally. When the summing-up is examined it can be seen that there is nothing in this Ground of objection. The trial judge said at p.52:

"Mrs. Tsui says that there is no doubt in her mind that the defendant deliberately attacked her. But, as I have already said, you might think that her evidence about the blows she said she received does not rest easy with the medical evidence about them.

She talked about lows from the chopper to the front of her head. You can see from the three photographs in Exhibit 84 that there did not appear to be any injuries to the front of her head. And none was certainly mentioned by Dr. Chau Pak-fei who attended-to her. She did, however, receive three separate injuries which required stiching and a moderate degree of force to inflict them.

The defendant says that if he had attacker Mrs. Tsui with intent to do her serious harm then she would not he alive today to tell the tale."

Again at p.54 the trial judge said:

"If you think that the wounds Madam Tsui received were inflicted accidentally, then acquit the defendant of this charge altogether.

If you think he mounded her and intended to cause her grievous bodily harm, even though he did not quite manage to do so, then convict him of the charge on the indictment.

If you think he deliberately wounded her but did not intend to cause her serious harm, brine in a verdict on the alternative charge."

22. There can be no doubt that the trial judge dealt carefully and fairly with this evidence and that the matter was put in a proper way to the jury for its consideration. There is nothing in this objection and the application for leave to appeal against the wounding conviction is also refused.

23. The applicant has also asked for leave to appeal against the sentence imposed saying that in similar cases of a more serious nature lighter sentences have been imposed. He also urges that he be given a lighter sentence upon the ground that this children are suffering by reason of the fact that he is incarcerated and that no one can take the place of parents in the eyes of children. The jury approach when convicting the applicant was clear. They returned the verdict of manslaughter because they were satisfied that the Crown had not aeeatived proyocation. The trial judge, mindful of this approach, sentence upon that basis. Indeed the defence counsel accepted that that was the basis upon which the jury had returned their verdicts. The reasons of the trial judge for imposing the sentence that he did as set out at p.89 of the record. He said:

"I certainly take into account all that has been said on your behalf and I have at the forefront of my mind that the jury believe you were provoked. Nevertheless, you have taken a life, the life of your wife. Although no doubt you will have to live out the rest of your life with that heavy burden upon your conscience, I must sentence you according to law."

24. He then weighed the gravity of the provocation and the other factors urged upon him before arriving at the sentence of seven years on the manslaughter charge and three years on the wounding charge and ordering that the sentences be served concurrently. The think the applicant was fortunate that the sentences ware made concurrent. They might well have been made to he consecutive or at least partially consecutive. We are quite satisfied that the trial judge took everything he should have into account when sentencing the applicant. It is true the sentence falls in the higher range of sentences for manslaughter but we are satisfied the facts amply justified such a sentence. As we have already indicated the sentence overall of seven years was in our view a lenient one.

25. The application for leave to appeal against sentence is refused.

26. We order that the applicant, on his application for leave to appeal against conviction, which was totally without merit, lose time of six months.

Representation:

I..C. Cross (Crown Prosecutor.) for the Respondent.

Applicant HO Sun-wai in Person.