The Queen v. Li Shu Ling

CACC000103/1986

BETWEEN

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Coram: Cons, V.- P., Kempster, J.A. & Nazareth, J.

Date of hearing: 10th July, 1986.

Date of delivery of judgment: 18th July, 1986.

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JUDGMENT

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Cons, V.-P.:

1. Nazareth J. who unfortunately is unable to be present today, has authorised me to say that he is in agreement with the judgment about to be delivered, which is thus the judgment of the Court.

2. On the 1st July last year Li Shu Ling, the Defendant, killed Madam Chow Shuk King. She and her husband were friends of the family, that is the Defendant and his wife. They used to play mahjong and go out together. And if the Defendant is to be believed, their own personal relationship was something closer.

3. That day he had gone to her flat to borrow money to repay his gambling debts. Madam Chow abused him for his bad habits, words ensued and then physical strife. Before long he had strangled her, either with his bare hands or with a rope. A child's skipping rope was found tied around her neck when she was discovered by the caretaker and a neighbour. The Defendant said that he had put it there after she had died in order to give the impression that she had been killed in the course of a robbery.

4. It was conceded at the trial that only two verdicts were open to the jury, murder or manslaughter. The main defence was accident, in the sense that death occurred in an attempt by the Defendant to stop Madam Chow from screaming or shouting and that the Defendant went further than he actually intended. That is what he told the police soon after his arrest and repeated substantially to a jury at his trial in the High Court. The jury did not accept that story and returned a verdict of murder. Against the conviction which followed he seeks leave to appeal.

5. The original Notice of Appeal contained one ground only, that the verdict was unsafe and unsatisfactory by reason of one or more of four matters. Three of them are passages in the summing-up. The first complained of is as follows: -

"You would need to be unanimous to convict of murder, that is the law in Hong Kong, it being a capital offence, that is to say, an offence for which there is no penalty other than the death penalty. Whether that penalty is carried out is not a matter with which you are concerned. The reality of the situation is that it is not carried out and has not been for 20 years, but the possibility remains."

The consequences of a conviction are not material to the jury's decision, and the second and third sentences of this passage would have been better left unsaid. However taken overall the comments were not, in our view, prejudicial to the Defendant, doing no more than to stress the undoubted gravity of the offence.

6. Then, when Baber J. came to define murder he used these words

"The crime of murder is committed by a person who takes the life of another with the intention at that moment - and I stress 'at that moment' - of inflicting at least serious bodily harm. He may not have had an intention to kill but he must have had an intention to do at least serious bodily harm."

He repeated the phrase "serious bodily harm" in many later passages.

7. It is usual for judges to direct juries in terms of "really serious bodily harm", which was said by Viscount Kilmuir in D.P.P. v. Smith⁽¹⁾ to be the ordinary meaning of "grievous bodily harm", the phrase contained in the classic definition of murder. We do not however take the Lord Chancellor as having laid down a specific incantation for every case. What is needed is to impress upon the jury the gravity of the intent required to support a verdict of murder. In the actual summing-up in Smith ⁽¹⁾ the Judge had used the terms "serious hurt" and "serious harm". Their Lordships nevertheless took the view that the summing-up, "read as a whole", was no misdirection. We take the same view in the present instance.

8. Thirdly objection is taken to this last passage -

"Equally, as you were told, it is not necessary for the Crown to establish the motive for the killing, although of course that helps in the Crown's case because establishing a motive may help to establish the intention to do at least serious bodily harm."

It is suggested that this direction was confusing to the jury. We do not find it so. The Crown had suggested to the jury that the Defendant was motivated by a desire to prevent Madam Chow from informing his wife of their relationship, a threat he said that she had made. If the jury accepted that suggestion it would naturally go some way to assist them in their assessment of his intention.

9. The fourth matter said to render the conviction unsafe or unsatisfactory derives from the police investigation. Having no obvious lead the police had proceeded by interviewing all persons in any way connected with Madam Chow. They did not come to the Defendant until the 12th August. On the 17th, when taxed with the proven untruth of his initial responses to their enquiries, he broke down and made a confession. He gave them a full statement dealing with all that had happened on the morning of the let July.

10. Two days later the police suggested that he reconstruct the crime with a woman inspector to play the part of the deceased. He agreed to do so and his performance, the same evening, was recorded on a video cassette. A record was also made of what he said as he went along.

11. At the trial it was objected that the video tape was not admissible in evidence on the grounds firstly that it had not been made voluntarily and secondly that it was precluded by the decision of this Court in Tam Wing Kwai⁽²⁾.

12. Upon a voir dire the trial Judge concluded that, as to the first part, the Defendant's conduct, had been voluntary and there is no appeal against that conclusion. As to the second part he took the view that Tam's case ⁽²⁾ left the question to the Judge's discretion and he saw no reason in the circumstances for exclusion. It is now suggested that Tam's case ⁽²⁾, if correctly decided, may be distinguished. We have been referred to the decision of the English Court of Appeal in Quinn⁽³⁾ but with respect we find no help there. The reconstruction there was not of a crime by a defendant, but of evidence by witnesses.

13. In Tam ⁽²⁾ this court rejected the video tape offered but had this to say:-

"In our view it was not the recording on videotape which was open to objection but the fact that a further 'statement' was taken at all. Sound tape recordings of statements are commonly admitted in evidence. A video-tape merely extends the record to the sense of sight and it is a record which is much more difficult to tamper with than is a tape of the sound alone. In our view such evidence may as a general rule properly be admitted."

14. There what happened was that the accused was taken to the scene of the alleged crime, "was asked questions about what had happened when he entered the flat on 15th July, to which he replied - and he illustrated his answers by demonstration". That proceeding is said by counsel to produce no more than a series of individual incidents, each akin to a demonstration by a witness in the witness box; it should not be equated oath a continuously flowing performance.

15. We do not see any significance in the distinction. A demonstration in Court is net necessarily limited to one particular action. If appropriate a witness would be allowed to run through a whole incident when giving his evidence to the jury. It may well be different of course where, as in Quinn⁽³⁾, several witnesses are simultaneously involved. But in any event a video taped reconstruction is not admissible because it is a demonstration, it is admissible because it is a concession, albeit visual rather than oral or written. That character does not change because it is in a sense mobile.

16. It may of course be excluded for other reasons, as it was in Tam⁽²⁾. In the present instance it is suggested that its probative value was outweighed by its prejudicial value. As a confession its probative value would be very high. We do not see that it carried any prejudicial value, other than of course that it may have indicated guilt. It does not become prejudicial merely because it is evidence of a dramatic nature.

17. For these reasons we are not persuaded that the verdict was either unsafe or unsatisfactory. However in the very last minutes of the appeal we gave leave to add an additional ground, that -

"The learned trial judge omitted to direct the jury on the relationship between intention and forseeability. In particular, he failed to direct them to satisfy themselves so that they were sure that the probability of death or really serious injury must have been little short of overwhelming as a consequence of the Defendant's acts against the deceased in order to establish the necessary intent."

This ground is based, as Counsel concedes, on the speech of Lord Scarman in Reg. v. Hancock⁽⁴⁾. It is to be observed however that His Lordship's words there are introduced by the phrase "where it is necessary to direct the jury on the issue of intent by reference to foresight of consequences". In our view it was not necessary in the present case. Foresight looks to the future, even though what injury is caused may be only a split-second away. But when pressure is applied to the human throat the injury is immediate. The victim cannot breathe, the brain is starved of vital oxygen. Furthermore the probability of really serious injury was overwhelming. It could not fail to be occasioned by violent and sustained pressure - the pathologist put it as at least 15 seconds - whether manually or by means of a rope. The throat is a most vulnerable part of the body, a fact which animals realise by instinct and of which no reasonable man can be ignorant. The Crown contended throughout the trial below that the Defendant applied that pressure with deliberate intent to kill. The Judge, without expressly discounting that possibility summed up on the basis of the lesser intent. We see no need for any further direction.

18. For these reasons the application for leave to appeal is refused.

(1)    [1961] A.C. 290 at 334

(2)    [1976] H.K.L.R. 401

(3)    [1962] 2 Q.B. 245

(4)    [1986] 2 W.L.R. 357 at 364

Representation:

Neville Sarony (D.L.A.) for Applicant

A.P. Duckett, Q.C. and Paul Dale, Crown Counsel for Respondent