HKSAR v. Lam Chi Kwong

CACC000354/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.354
(Criminal)

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Coram: Power, V.-P., Mayo and Stuart-Moore, JJ.A.

Date of Hearing: 13 March 1998

Date of Judgment: 25 March 1998

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 3rd June 1997, the Applicant was convicted of murder following a trial in the High Court before Gall J. and a jury. He now seeks leave to appeal against his conviction.

2. In brief, the prosecution's allegation was that the Applicant shot the deceased at close range with a hand gun.

3. The Applicant and his brother operated a car park. Disputes had arisen over the years with others. The Applicant bought a hand gun and ammunition and kept it at the car park.

4. On 2nd April 1996, a dispute arose between the deceased's group and the Applicant's brother. After this, the Applicant spoke to his brother. About 15 minutes later, the Applicant went armed with the gun and when he was not less than 24 inches from the deceased, he fired a well-aimed shot into the deceased's chest. The Applicant then left the scene and went into hiding. When he was eventually found, following an attempt to commit suicide, the Applicant gave an account to the police in which he said that he had walked up to the deceased and said to him "Don't make so many troubles". He then took out the gun that he was carrying, wanting to scare the deceased. Unpredictably the deceased had thrown himself at the Applicant and in the "scrimmage" the Applicant "had pulled the trigger and discharged one shot".

5. However, before his attempt to commit suicide he had written a letter in which he said "I went near (the deceased) and fired one shot".

6. Two ballistics experts agreed that the minimum firing range for the fatal shot was 24 inches away from the body. This range accorded with the evidence given by two eye-witnesses who saw the Applicant pull out a gun and fire it when he was between 3 and 5 ft. away from the deceased.

7. The defence at trial did not deny that the Applicant had committed an unlawful act resulting in the death of the victim, in that he had at the very least pointed a loaded gun at the deceased. The defence relied firstly on a lack of intent at the time when the gun was fired and secondly on a defence of manslaughter by reason of diminished responsibility. The trial judge also left provocation open for the jury to consider.

8. Professor C.K. Wong of the Chinese University of Hong Kong was called on the Applicant's behalf to give psychiatric evidence supporting the defence of diminished responsibility. The prosecution called Dr. Lui to rebut this defence.

9. This last part of the background conveniently leads to the first ground of appeal which is that the judge misdirected the jury while referring to the Applicant's history of violent behaviour. This aspect of the Applicant's character arose from Professor Wong's evidence and his written report which was given to the jury following agreement on both sides that the jury should have a copy for themselves. The judge said this in summing up the case to the jury:

"You may strongly disapprove of violence but it would be wrong of you to look at those feelings and allow them to influence you against the accused. You have heard from him and have seen in Professor Wong's report, incidents that have happened in his past. You cannot look at those and say because he has been violent on other occasions, he must have intended to do it on this occasion. You must look at the facts of this particular case, the evidence that you have heard, and make up your mind from the facts that have been placed before you. You can make no assumptions, as I will come to in a little while, that he must be guilty because he has been violent in the past. (Emphasis added.)

In fact, if you accept Professor Wong's report, quite the reverse. Professor Wong has put before you that past violence have been manifestations of his mental condition."

10. Mr. Huggins, S.C. has submitted that this was a material misdirection because this passage failed to convey to the jury that they were not permitted to infer that the Applicant might be more likely to be guilty because he had been violent in the past. His particular complaint is that only the word "might" in place of "must" (where emphasized) would have conveyed the true meaning of what the judge was trying to say.

11. We do not agree. This is a wholly unrealistic submission. The distinction in the present context might be interesting academic fodder to an English linguist but the jury box is not a classroom far removed from the real world. Professor Wong had provided for the defence some psychiatric evidence which necessarily included references to violent behaviour in the Applicant's past. The judge was very properly directing the jury that it would be wrong to allow the knowledge of past violent disposition to influence them into believing that the Applicant was guilty on that account.

12. It was additionally important that something along these lines should have been said as prosecuting counsel had, perfectly properly in our judgment, referred to the Applicant in his final address as a "fighter". Mr. Arthur had based this description on Professor Wong's evidence. While that label was justified in general terms, the trial judge had a duty to point out that in law this must not be used as the basis of any assumption that the Applicant must be guilty. The judge did what was required of him. There is no substance in this ground.

13. Immediately after this passage in the summing-up, the judge went on to give a direction that is the subject of the second ground of appeal. He said:

"On the other hand, it also would be wrong of you to allow any feelings of sympathy to influence your decision, sympathy for his family or sympathy because he tried to commit suicide. Mr. Buchanan said to you that you have to bear in mind that the accused is on trial for his life. You are not entitled to take that into consideration. You can only take that into consideration when you assess the evidence of the accused himself. It can have no bearing on the truth of the evidence from other witnesses. When, for example, Professor Wong gives evidence, it can have no bearing on whether he is telling the truth or Major Mead, how can it? But it does have a place when you consider the evidence given by the accused because it is his evidence, and his motivations are of importance to you."

14. The reference to the Applicant being "on trial for his life" was inappropriate, but it was not of the judge's making. It is now accepted that defence counsel, Mr. Buchanan, was at fault for having made this comment in his final address to the jury. As we are reminded by Mr. Bruce S.C., at another stage of his final address, Mr. Buchanan had also said to the jury "he is on trial for his life and you hold his life in your hands". This was an appeal to the sympathetic emotions of the jury. It is well known that the jury should not be concerned with matters of sentence. Their sole responsibility is confined to deciding whether guilt has been established.

15. These remarks were misplaced and improper but, defence counsel having raised the matter in the way he did, it was then incumbent on the judge to say something about it. We accept Mr. Huggins' submission that the judge should have directed the jury along the lines that they were not concerned with the consequences of their verdict because this was completely irrelevant to any issue that they had to determine.

16. We have come to the conclusion that the words "you can only take that into consideration when you assess the evidence of the accused himself" were a misdirection on the part of the trial judge amounting to a material irregularity. Indeed it was in direct contradiction of the direction correctly given in the sentence immediately before it:

"You are not entitled to take that into consideration".

17. Mr. Huggins has submitted that the jury might well have come to the conclusion following the direction given in this passage that the Applicant had a strong motive to lie in order to avoid the inevitable consequences of a conviction for murder.

18. Whilst there is a separate direction concerning the jury's approach to lies which is not the subject of any criticism in this appeal, we have had to consider the relative importance of the misdirection in this passage of the summing-up.

19. The judge had directed the jury, taking the full context of the offending passage, that Mr. Buchanan's comments could not have any bearing on other witnesses in the trial apart from the Applicant. This will have been obvious to anyone and the jury hardly needed to be told this. It is also obvious that someone who is convicted of murder or manslaughter faces serious consequences on sentence. Whilst, therefore, it was wrong for the trial judge to point out that this might have an effect on the jury's assessment of the Applicant's evidence, we consider that what was said did no more than to state the obvious. The fact that the Applicant was "on trial for his life", as Mr. Buchanan had put it, effectively highlighted this very point. No doubt he was attempting, in a way our procedures do not permit, to attract the sympathy of the jury by forcing them to think of the awful consequences to his client if he was convicted at their hands.

20. After anxious consideration, we have concluded that in the circumstances of this case no harm was done by this misdirection on the part of the judge.

21. As the third and fourth grounds have now been abandoned, this leaves only the fifth ground to be considered.

22. Mr. Huggins now concedes that the way in which this ground was originally drafted could not alone lead to the quashing of the conviction. Undoubtedly he is right, but having made this concession, he submits that there is a cause for "unease and dissatisfaction" in that, where the primary issue in the case was whether the Applicant had the necessary intent required for murder, the jury should not have been left with Dr. Lui's two-page report which includes the following passage:

"What really happened at the time of the shooting is not clear. Apparently defendant had a pistol hidden away some time ago and now he decided to use it. It took him a while (many minutes) to uncover the gun; if he then doubled back and shot the victim it was a deliberate act and in my mind there is no question of 'diminished responsibility'. If on the other hand defendant had as he claimed no more than wished to scare the deceased into beating a retreat, but who unexpectedly lunged at him for the gun, which went off in its ensuing scuffle, it would be quite another matter." (Emphasis added.)

23. Dr. Lui's report had been given to the jury by agreement with the defence. It is now Mr. Huggins' submission that Dr. Lui's short report was at best valueless and that the reference to a "deliberate act" in the extract just cited may have influenced the jury in relation to a topic Dr. Lui should not have been addressing in the first place.

24. In our judgment, Dr. Lui was doing no more than giving a summary of both sides of the story having started the paragraph by saying that what really happened was "not clear". The point he was making was that on the prosecution's version there was a "deliberate act" but, on the Applicant's version, it was "quite a different matter". Dr. Lui was not expressing an opinion as to which was right. He was simply saying that diminished responsibility had no relevance to the actions of the Applicant if the jury accepted the prosecution's version of events. In the next paragraph of his report, Dr. Lui went on to say that the Applicant was not suffering from mental illness. In his opinion, the circumstances of the case were "within ordinary human knowledge and experience to understand" and it was his opinion also that a jury could "well come to its own conclusion without the help of a psychiatrist".

25. We are satisfied that there is no substance in this ground.

26. As we have said in relation to ground 2, the judge fell into error by giving the jury a misdirection amounting to a material irregularity. Nevertheless, we are satisfied that for the reasons we have given, no miscarriage of justice has actually occurred.

27. In the circumstances, we will allow this application for leave to appeal but, treating the hearing as the appeal, and applying the proviso to section 83(1) of the Criminal Procedure Ordinance, we dismiss the appeal.

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. and Mr. M. Arthur, S.A.G.P. for D.P.P./Respondent

Mr. Adrian Huggins, S.C. and Mr. Robert Buchanan instructed by Messrs.Weir & Associates for the Applicant.

Applicant's application to certify matters of great and general importance refused by Court of Appeal. Please refer to CACC354/1997 dated 27 March 1998