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Mok Kwong Yuen v. The Queen

Read the full judgment text of CACC 338/1980 on BabelCite. This Court of Appeal judgment was delivered on 4 July 1980.

1. This is an appeal against conviction. The appellant was charged that on the 3rd February 1978 in Hong Kong he murdered Mrs. Margaret Boycott. The appellant at the trial admitted that he went with another man into the Boycott home which, they found upon entry, was empty. They went with the intention to steal. They armed themselves each with a knife. While they were on the premises Mrs. Boycott returned to her home. The other man made good his escape. The appellant was interrupted by Mrs. Boyco

Case No.CACC 338/1980
Court
Court of Appeal
Date04 Jul 1980
Judge—
Case Document
100%Judiciary

CACC000338/1980

IN THE COURT OF APPEAL

 1980 No. 338
(Criminal)

BETWEEN
MOK KWONG YUEN Appellant

AND
THE QUEEN Respondent

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Coram: Li, J.A., Power & Barker, JJ.

Date of Judgment: 4 July 1980

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JUDGMENT

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Appeal against conviction - trial de novo of murder - judge referred to appellant being convicted at previous trial - judge also direct jury expressing that killing must be by appellant's deliberate act.
Held : Dismissing appeal, reference to previous conviction by judge directing jury to ignore everything prior to new trial - evidence so overwhelming that proviso would be applied if necessary - judge adequately put the defence case to jury that killing was accidental - no necessity to use expressly the term 'deliberate act'.

Li, J.A.:

1. This is an appeal against conviction. The appellant was charged that on the 3rd February 1978 in Hong Kong he murdered Mrs. Margaret Boycott. The appellant at the trial admitted that he went with another man into the Boycott home which, they found upon entry, was empty. They went with the intention to steal. They armed themselves each with a knife. While they were on the premises Mrs. Boycott returned to her home. The other man made good his escape. The appellant was interrupted by Mrs. Boycott. There was a struggle. Mrs. Boycott received multiple injuries and stab wounds on her body as a result of which she died. Police investigation was set afoot. The appellant and his confederate were then arrested. The appellant was brought back to the police station in which he made a statement, partly confessing to his presence on the premises of the deceased, partly exculpatory in the sense that there was no intention to injure Mrs. Boycott. However, as a result of the statement he made, he provided the police with certain information. He led the police to a slope in the vicinity of the crime from where the knife used was retrieved and a box that the appellant had taken was recovered.

2. In the course of the trial he admitted in cross-examination that he had sold the Australian coins in the box he took for money. This is the general background of the case upon which the appellant was convicted.

3. The defence was that the killing was purely an accident. In his evidence, the appellant said that Mrs. Boycott, having interrupted him, had a struggle with him. They both fell on the floor. The appellant's knife fell from his hand to the floor. Before the appellant could get up and run away Mrs. Boycott seized the knife from the floor to attack the appellant. There was a further struggle. The appellant and Mrs. Boycott, were rolling about in the struggle. The appellant, in cross-examination, was unable to explain how in the struggle, the multi-injuries on Mrs. Boycott's body could have been inflicted. Having regard to the nature of the prosecution evidence and the vague explanation and defence that the appellant put up in the court below we are of the opinion that there was overwhelming evidence against the appellant and the verdict of the jury must be correct.

4. On behalf of the appellant learned counsel advances several grounds of complaint. The main ground of appeal is that the learned trial judge, in the course of trial made a remark to the effect that "the first time you (meaning the appellant) were tried for murder and convicted". The case of Sambasivam v. Public Prosecutor of the Federation of Malaya [1950] A.C. 458 is cited in support of the proposition that even though in certain circumstances where a previous trial may be referred to the learned trial judge should not mention the word conviction. However, at page 172 of the transcript in his summing up the learned trial judge directed the jury in these words:

" This is a case of some notoriety, no doubt about that. The death of Mrs. Boycott on the 3rd of February of 1978 - over two years ago - aroused enormous public interest and was much death with in what is called the media, the newspapers, television and so on. So it would be absurb to pretend that you and the general public know nothing about the case and I expect you are aware that there was a previous trial and that this is a retrial. Indeed, you were made aware of that by the fact that the accused was asked in cross-examination what he'd said about certain matters at a previous trial. The Appeal Court ordered that this matter be tried again and that's what you have been doing here and I have been doing here.
          Now, you must try and ignore anything that has happened in the past except in so far as you wish to draw any conclusions about whether the accused is saying the same thing now that he said before."

5. The reference to the word "conviction" is unfortunate. However, it would not have influenced the jury as to their verdict one way or the other. Hong Kong is a small place. The jury must have read or learned about the previous trial and conviction through the news and television media. Even if we are wrong in that assumption, in view of the overwhelming evidence, we cannot imagine that the jury would have returned a verdict otherwise than the verdict they did return. We would have no hesitation, had it been necessary, to apply the proviso.

6. The second main ground of appeal is that the learned trial judge when directing the jury on the definition of murder failed to mention that the jury had to be satisfied that the appellant's attack on Mrs. Boycott was a deliberate, unlawful act done with the necessary intent.

7. Let us then look at the summing up on this trial. Again starting at the bottom of page 172 of the transcript the learned trial judge said:

"The burden of proving the charge that's brought against the accused which is a charge of murder is firmly upon the Crown. The Crown has to satisfy you with the guilt of the accused byond all reasonable doubt; and as far as this case is concerned, that really means that the Crown has got to satisfy you that the fatal wound inflicted upon Mrs. Boycott was inflicted with the intention at that moment of time of killing her or at least doing her serious bodily injury, and you can only decide that upon the surrounding facts, of course. That's the thing of which the Crown has got to satisfy you beyond all reasonable doubt, not beyond all shadow of a doubt, not with anything like mathematical certainty because mathematical certainty isn't a thing that applies to human affairs very much."

Later on at page 174 he said that:

" The issue in this case is, was this fatal blew struck with the intention of doing at least grievous bodily harm to Mrs. Boycott? The accused's counsel has conceded that even if it was not, even if there was not that intent, there must be a conviction for manslaughter - the lower form of killing somebody in our law. Of course the accused said that the fatal wound was inflicted accidentally by misadventure, by mischance in the course of a physical struggle though he wasn't able to give a very detailed account of that struggle, saying that the whole matter was very confused in his mind.
          If you are not satisfied that this fatal wound was inflicted by him with at least the intention of doing serious bodily injury to Mrs. Boycott, you should bring in a verdict of manslaughter. If you are so satisfied, it is your duty to bring in a verdict of murder."

Thus the question whether the attack was deliberate had been put to the jury. The trial judge put the defence case fully without spelling out the word 'deliberate'. The defence that there had been no deliberate act to inflict all the injuries and that they were inflicted in the course of a struggle by mischance or by misadventure was put to the jury.

8. Having regard to this we can see no deviation in the judge's summing up from the line indicated in Williamson's case reported in 1978 or in the Hyam's case. The latter case involved arson. The act complained of in Hyam's case was quite different from the act that was committed in the present case. In this case there was no dispute and there was no denial that Mrs. Boycott received a large number of injuries on her body. There was no dispute and no denial that those injuries were inflicted by the appellant. Whatever the judge might say as to the appellant deliberately inflicting the bodily injuries on Mrs. Boycott would be guilding the lily. He had put the defence case that it was an accident. That impliedly meant that the appellant's defence was that there was no deliberate act in inflicting those injuries. Having regard to the circumstances this ground of appeal must also fail.

9. The other grounds of appeal set out in the notice of appeal are generally of a similiar nature as the two complaints we have considered and have not been argued in detail. Ground 6 of the grounds of appeal was expressly abandoned. In the circumstances we feel there is nothing wrong with the summing up or the conduct of the trial. For these reasons the appeal against conviction must be dismissed.

Representation:

W. Marriner (D.L.A.) for appellant.

J.M. Duffy for Crown.