Tai Shun Kam v. The Queen

CACC000162/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 162 OF 1969

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Coram: Briggs, J., Huggins, J. and Williams, J.

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JUDGMENT

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1. We are of the opinion that this appeal must be dismissed. The appellant was convicted of murder and sentenced to death on the 5th March 1969 and he appeals against his conviction. In outline the facts are simple. At the Mid-Autumn Festival in 1968, that is the 6th of October, the deceased, CHENG Sau-ying, who was a girl aged 19, was living with her family in a house in San Tin Village in the New Territories. In 1967 she had been working in a rattan factory where she met the appellant. They became friends, and it seems the appellant fell in love with her. He left the factory, but later came back. In August 1968 he accused TAI Chi-ying, one of the owners of the rattan factory where they had both been employed, of stealing the girl's affections. TAI Chi-ying denied this, and the deceased girl, CHENG Sau-ying, when confronted with this allegation, apparently also denied it. The family of the deceased girl at the time included her parents, a younger brother, a boy aged 9 called CHENG Yuk-kau, and a grandmother. The family occupied two houses.

2. At the Mid-Autumn Festival, after a cinema show, the mother of the deceased intended to celebrate the Festival by killing a duck for a feast. It was afternoon and the grandmother left the house to fetch the father of the family. She passed and recognised and indeed was greeted by the appellant in a lane near the house. He was carrying a bottle of Chinese liquor. As I said, the family occupied two houses - the deceased and her younger brother, CHENG Yuk-kau, slept in the cockloft in the rear house.

3. The mother of the deceased was preparing the duck, the boy being present. He heard the deceased weeping or crying in distress, and reported this to his mother. She sent him back to have another look. He went to the cockloft where his sister was and saw the appellant with his hands pressed on her throat. He also said he saw blood. He climbed down the ladder to return to his mother, while the appellant jumped from the cockloft and made off. It was found that the deceased had been stabbed in three places, twice on the left chest, and once on the front of her face.

4. The Police were called. Later the same evening the appellant gave himself up to the Police at the Central Police Station in Hong Kong. He made various statements to the Police Officers, which though challenged by the Defence were admitted by the Judge as having been made voluntarily. It is common ground that the appellant was at the scene of the crime, but the case was defended on two grounds. In the statements to the Police the appellant said that he had been drinking and was unaware of what he was doing. However, during the trial the Defence contention was that the deceased died as a result of an accident.

5. The appellant said he was deeply in love with the deceased, and at first he thought she returned his love. However, because other persons influenced her, she grew indifferent to him. He intended to do away with himself, and he tried to do this on two occasions unsuccessfully. Knowing that the Mid-Autumn Festival was the day when people gathered together - and after consuming a considerable quantity of Chinese liquor - he went to the home of the deceased. He passed the grandmother and entered the cockloft where he found the deceased. He told her that he was going to kill himself in front of her and he produced his knife. The deceased grabbed hold of the hand in which he was holding the knife, and she was accidentally stabbed in the chest. The appellant said he could not account for the two other wounds found on the body and his whole recollection of what happened immediately before and - immediately after the incident was far from clear, due to his emotional state and the amount of liquor that he had consumed.

6. The trial Judge summed up the case to the Jury at great length, and we do not think that we can find fault with that summing up. He left the issue of manslaughter to the Jury, and dealt with the admissibility of the statements and the weight to be given to them, and the question of intent so far as it concerns murder and manslaughter satisfactorily. However, some 11 grounds of appeal were filed by Counsel for the Defence. There are two things I wish to say about those grounds. The first is this: Ground 4 contained the following phrase:-

"That the Learned Judge's comments on the two statements which were made to the Police are wrong and prejudicial."

Again, Ground 5 has this:-

"That the Learned Judge misdirected the Jury concerning the law and evidence of drunkenness in this case."

I think it would have been very much better to have particularised in these grounds of appeal what was being complained of - that is to say, in Ground 4 - what the Judge's comments were which were being complained of. And in Ground 5 - the misdirections of the Judge which were being complained of, and so on. A great deal of time would have been saved had that been done. As I say, there were 11 Grounds filed. I have no hesitation myself in saying that Grounds 2, 3, 6, 7, 10 and 11 should never have been put forward. There is absolutely no substance in those Grounds whatsoever. Indeed, having paid great attention to what has been advised before us in this case by Counsel for the Defence, we find there is no merit in any of the Grounds which were filed in this case, and as I say, this appeal is dismissed.

7. There was one matter which my learned Brother raised, that concerned certain expressions used by the Judge when directing the Jury on the issue of manslaughter. That was not one of the grounds of appeal, and although we asked Mr. Sandor to address us on this subject, we are satisfied that on balance there was nothing wrong in the Judge's direction. That is all I need to say about that.

8. We will now adjourn.

Representation:

Mr. Henry HU (Peter C. Wong & Co.) assigned for Appellant.

Mr. M. Sandor, Crown Counsel, for the Crown.