HKSAR v. Yeung Kin Sun

CACC 400/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 400 OF 2002

(ON APPEAL FROM HCCC NO. 213 OF 2001)

----------------------

BETWEEN

----------------------

Before: Hon Stuart-Moore V-P, Stock JA and Pang J in Court

Dates of Hearing: 17 September 2004

Date of Judgment: 17 September 2004

----------------------

J U D G M E N T

----------------------

Hon Stock JA (giving the judgment of the Court):

Introduction

1.The applicant was charged with murder.  He admitted manslaughter but that plea was not accepted and after a trial before Mrs Justice Bokhary he was convicted by the unanimous verdict of the jury on 26 July 2002.  He now seeks leave to appeal against conviction.

The evidence

2.The applicant was aged 29 years at the date of the killing.  He was a construction worker and had a girlfriend with whom he cohabited.  The story of what transpired came, as by the consequence of such a crime it necessarily often does, from the applicant himself. 

3.His account was that in the autumn of 1996 he was in Macau where he was in the habit of gambling, and there at a casino he met the deceased who was called Amy and who worked as a dance hostess.  He and she stayed the night together.  Thereafter he saw her from time to time and they would book into a hotel room and have intercourse, though he continued to reside normally with his girlfriend.  She, Amy, told him that she had a boyfriend on the Mainland.  By the beginning of July the applicant had incurred substantial debts with finance and credit card companies to the tune of about $300,000, and he said that on 15 July 1997 Amy had agreed to lend him money.  Pursuant to this agreement, he saw her draw money from an ATM machine, or at least try to do so and she then gave her bank cards to him because, according to him, she did not want to lose any more money at gambling.

4.On the evening of 16 July 1997, he had dinner with his girlfriend and then arranged to meet the applicant later that night for a midnight snack.  Before he met her he went with his girlfriend to a karaoke place and there consumed alcohol so that he became drunk.  Then he met the deceased at a restaurant and as a matter of politeness, he said, he saw her home.  She asked him in and he went to her room which was in Jordan Road.  He felt dizzy and had a headache.  He lay on her bed and she then broached the subject of some premises she was hoping to rent, wanting to move out of her current flat because there had been a theft therefrom.  There was some row about him helping to find premises for her in the course of which she is alleged to have called him ‘useless’ and said that he had no money to rent a place for himself.  He wanted to go to sleep but she would not let him and made overtures for sexual intercourse.  She climbed astride him and he pushed her away.  She said that he had drunk so much that he looked like a pile of mud and she climbed on top of him again.  He did not respond to her foreplay, and she accused him of being useless, and asked if he was a man.  He pushed her again, and this time she fell from the bed and struck her head, and shouted that she was in great pain.  He says that he tried then to help her but she kicked him in his private parts, and while he nonetheless tried to help her up, she slapped him and he returned the slap; and then “she sort of conveniently grabbed a knife” and stabbed the knife in his direction and, whilst he was on top of her, he wrestled the knife from her and cast it aside.  There was a struggle for the knife in the course of which he fell onto the floor and, in doing so, the knife somehow cut her neck causing it to bleed and she screamed, and he then placed his hand or hands over her mouth to stop her screaming.  She nonetheless struggled and scratched his hands and then he “sort of conveniently grabbed a pillow and use it to cover her” and he used the pillow to stop her screaming.  She put her finger in his mouth and he bit it.  Then she seemed to be trying once more to grab hold of the knife and he took up the knife, and she came into contact with the knife, as he put it, and she screamed again.  She screamed very loud and, he said: “I lost my mind and I was totally out of my character, I stabbed her several times … I went berserk.”  And then she stopped screaming and he let go of the knife, but it remained in her chest and he covered her with a blanket and then “greediness came to my mind and I took away her wallet and her telephone from the dressing table.”  In the course of the next few hours, he tried to obtain money by the use of her card.  He managed to withdraw $10,000.  He said that later he confessed to his girlfriend that he had killed a woman; and she and his friends persuaded him to leave Hong Kong, so he went to Macau and then some time later, in 1998, to the Mainland.

5.At trial the applicant admitted that he killed the deceased and that he had done so unlawfully.  His defence was two fold: first, that he did not intend to kill her or to cause her serious bodily harm; and second, that he lost control as a result of provocation which she had offered by the conduct which he had described.

6.The suggestion that he had not intended to cause grievous bodily harm was a suggestion which seemed doomed to fail in the light of the evidence of the pathologist.  The contention that he had lost control as a result of her provocation was embellished by his contention that as a youth he had suffered an accident whereby a pole had struck his head, ever since which event he was acutely sensitive to loud noise.  The deceased’s screaming was therefore the trigger for his loss of self-control.

7.The pathologist’s evidence was that there was bruising to the head and face and injuries to the neck which included several wounds; and then there were injuries to her chest including two stab wounds and there were several cut wounds to an arm as well as multiple bruising.  There were some defensive wounds on her body.  The cause of death was stab wounds to the heart and lung.

The Grounds of Appeal

(1) Provocation

8.The first ground advanced by Mr Haynes, who appears for this applicant, is that the judge failed to give proper directions in relation to the issue of provocation.  This complaint has several limbs.  First it is said that the judge did not direct the jury to the issue by reference to the evidence that was said to be or to be capable of being the provocative conduct relied upon.  He says that the judge ought to have told the jury, for example, that the matters to which specific regard should be paid were the suggested taunts by the deceased that the applicant was useless and penniless, and that he was sexually inadequate; and to her conduct in attacking his private parts and in assaulting him generally.

9.What the judge did was to say to the jury that she would define for them the elements of provocation that were capable of reducing the offence to manslaughter, if the requisite intent were proved and would then return to the evidence and submissions relating to provocation.  The judge’s distillation for the jury of the elements of provocation and of the stages through which they should travel before such a defence might operate or be rejected was a model of its kind and cannot be faulted.  She said that she would turn later to the evidence of provocation, and that is what she did.  When she turned a little later to his testimony, she reminded the jury of the ‘main points of his testimony’ and this she did in some detail.  But the point to be made here is that that testimony was by its very nature, and as a matter of common sense, testimony of provocative acts on the part of the deceased and of nothing else.  Counsel for the applicant in his detailed closing submission had highlighted the acts, referring for example to ‘kicks to the most vulnerable part of a man’s anatomy’; and reaching for a knife was described by him as ‘very provocative behaviour’; and he referred to other conduct which helabelled expressly as ‘further provocative behaviour’. 

10.It was clear enough what were there provocative acts relied upon.  They were of a plain nature.  There was nothing remote or obscure about those acts that might qualify as provocative acts: they were taunts about money, about sexual prowess or manhood, and physical attacks on his person.  It seems to us that no-one in this context could have been in any doubt about the nature of the suggested provocation, and although one might have preferred specific reference to itemized conduct as the conduct relied upon as provocation, the omission to do so in this case does not in our judgment constitute a material irregularity.  No doubt, experienced counsel who appeared for the applicant, the late Mr Mullick, would not have left the matter lie had he thought that the object of the judge’s reference to provocation was anything but obvious to this jury.

11.The judge referred to the fact that the applicant’s evidence was that he was much the worse for drink on the night in question.  She said:

“The accused had given evidence about having consumed a lot of alcohol.  Consider this in the accused’s favour as you see fit when deciding whether he had the intent to kill or cause really serious injury, and also bear it in mind in the accused’s favour as you see fit when considering the issue of provocation.” (Appeal bundle p.12).

12.It is said that the relevance of the suggested drunkenness as going to the question of loss of self-control was not spelt out.  In so far as the judge told the jury that the question of drunkenness was relevant to the issue of intent, she could not have said much more in that regard.  We do agree that to tell the jury that they should bear it in mind on the issue of provocation in the applicant’s favour‘as you see fit’ when considering the issue of provocation was not helpful in that it did not tell them to what end in that regard it might be relevant.  However, counsel for the applicant had told the jury in his closing submissions the degree to which the issue of drink was said to be relevant: that ‘alcohol removes inhibitions to some extent and you lose a sense of judgment’ and that because the applicant was feeling drowsy as a result of drink he just wanted to rest to be left alone and to sleep and that her behaviour had provoked him.  This was not a long trial and the judge’s summing up coming as it did the morning after counsel’s address was made against the background of these submissions.  And in her summing up shortly after her reference to drunkenness she reminded the jury of the applicant’s testimony as follows on page 13:

“While they were lying on the bed, the conversation turned to money for renting a place, and she said – that is the deceased – said that the accused was useless about money.  Then she wanted to have sex with him, but he did not want to have sex with her because he had drunk a lot of alcoholic drinks, felt dizzy, had a serious headache, was tired and wanted to go to sleep.  She persisted in her advances.  And she resented his lack of response.  She said he was useless and questioned his manhood.”

This was precisely the relevance of drink to which counsel had the previous afternoon referred and in the event the point was adequately conveyed to the jury.

13.Then it is said that there was testimony capable of supporting the allegation of loss of self-control to which the judge should have but did not refer.  The point here is that the nature of the injuries, their number and seriousness were such as were consistent with someone losing his self-control; a point made by counsel in his closing address.  The judge dealt in considerable detail and with care with the pathologist’s evidence pointing out from time to time those facets of his testimony that might accord with the applicant’s case such as, for example, at page 20H of the summing up:

“It is possible for stab wound (B) to have been inflicted as a result of struggle.  But in view of the three overlapping stabs, it is more likely that the wound was inflicted deliberately by repeated stabbing.  He agreed that both parties were moving at the time and that it was not a violent struggle but a struggle.  He cannot however tell if a possible explanation was that initially the victim could have had the knife.”

And then the following passages for example at page 22:

“Dr Yu had testified that those wounds bear characteristics of being defensive wounds and these wound could also be due to a struggle over the knife because self-defence and struggle often came together, since one has to struggle to defend oneself, and that the defensive wounds on the deceased’s hands mean struggle.”

….

“The stab wounds found on the neck and chest could be due to the repeated stabbing when the accused had lost control of himself.”

14.Mr Haynes suggests in argument today that the judge should have but did not refer to the evidence ofneighbours, placed before the court in the form of written statements, as potentially supportive of the assertions of provocation.  That was testimony of loud voices and a banging sound.  That evidence we have to say was equally supportive of the prosecution case.  The point made by Mr Haynes was made by counsel in closing submissions and in the context of this particular case, we do not see the failure to mention this by the judge in her summing up as an error, let alone a material one.  

15.Finally on the issue of the provocation, it is said that the judge failed to give a direction in accordance with that suggested in R v Humphreys [1995] 4 All ER 1008.  The suggestion is that the judge ought to have told the jury that provocation could be relied upon as a defence in so far as it was cumulative in its effect.  Here what Mr Haynes relies upon is the fact that the provocation of that evening was cumulative in the sense that it commenced with nagging about buying a flat.  With respect to Mr Haynes, this is not the sort of case that Humphreys had in mind.  There was no long-term event or even a medium term history here resulting in some final act to be taken as one strand amongst many.  Indeed the effect of the applicant’s testimony at trial was that the relationship between himself and the deceased had hitherto been a good one.  The events of this evening constituted, if the applicant’s accounts were true, a self-contained event, and a direction along the lines suggested by Mr Haynes would have been artificial.

(2) Injuries and self-control

16.The second ground of appeal is that ‘the judge misdirected the jury as to the extent to which the pathologist’s evidence could support an inference of mens rea for murder’.

17.The passage about which complaint is made is the following:

“Members of the jury, on the question of whether the accused had the necessary intent for a conviction of murder, there is evidence on which you are entitled to find, it is a matter for you, that the only reasonable inference is that the accused intended to kill or to cause really serious injury.

This evidence consists of the nature and extent of the deceased’s injuries.” (Appeal bundle p. 15).

18.The complaint in essence is that the judge failed to balance these comments by pointing out those parts of the pathologist’s testimony, which accepted that injuries inflicted upon the deceased were consistent with a loss of self-control.  We do not agree.  In saying what she did the judge without dwelling on the point or driving it home, if emphasis were needed, pointed out the obvious, namely that the nature of the injuries was evidence from which the necessary intent could be inferred and, as we have pointed out earlier, she specifically referred as well to the way in which the pathologist’s evidence supported the theory or assertion of a loss of self-control.      It should be recalled that this was, though a case involving a very grave allegation, a short and straightforward case on the facts, where at the time of the summing up the relevant evidence must have been fresh in the jury’s mind as must have been the points in the evidence driven home by counsel for the applicant as supportive of his case.  It was not necessary for the judge to go into the detail which Mr Haynes says was required.  

(3) Alcohol and loss of self-control

19.There is an issue placed before us as to the effect of alcohol and directions in that regard.

20.Here it is said that ‘the judge failed to give any proper direction as to the potential impact of the applicant’s voluntary consumption of alcohol on the issue of specific intent’.  We do not agree.  A passage to which we have earlier referred needs, for present purposes, to be repeated:

“The accused had given evidence about having consumed a lot of alcohol.  Consider this in the accused’s favour as you see fit when deciding whether he had the intent to kill or cause really serious injury, and also bear it in mind in the accused’s favour as you see fit when considering the issue of provocation.” (Appeal bundle p.12).

That passage sufficed.  It was not the applicant’s case that he was so drunk that he did not know what he was doing.  Not all cases where drunkenness features requires a direction: see R v McKnight The Times 5 May 2000.  But a standard direction where any is required may be culled from R v Sheehan and Moore [1975] 60 Cr App R 308 at 312:

“… in cases where drunkenness and its possible effect on the defendant’s mens rea is in issue, we think that the proper direction to a jury is, first to warn them that the mere fact the defendant’s mind was affected by drink so that he acted in a way in which he would not have done had he been sober does not assist him at all, provided that the necessary intention was there.  A drunken intent is nevertheless an intent.  Secondly, and subject to this, the jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.”

That in effect is what the judge did in this case.  In this regard she cannot be faulted.

(4)(a) Cross-examination

21.Ground 4(a) of the perfected grounds reads as follows:

“The trial judge was wrong to allow repetitive persistent and lengthy cross-examination of the applicant based on the inadmissible and prejudicial suggestions that the applicant had killed the deceased in order to steal from her bank accounts.  The manner and length of this cross-examination render the prejudicial incurable by judicial direction.” 

The key direction to which Mr Haynes there refers is as follows:

“Members of the jury, the evidence does not justify your taking the view that the accused killed the deceased for her money.  And the fact that, after he had killed her, he, by himself and through his girlfriend, used the deceased’s bank card to get money out of her bank account should not be taken into consideration by you when deciding whether or not to convict him of murder.  Nor should the fact that he took her mobile phone and wallet after killing her.” (Appeal bundle p. 11).

22.Counsel for the prosecution at trial spent a considerable part of his cross-examination seeking to show that the applicant was a gambler; that he was in dire financial straits; that there was cause for him to believe that the deceased was flush with funds; that the first thing that the applicant did after he had killed the deceased was not to call for help from anyone but to steal the deceased’s wallet and mobile telephone, and then tried to take money from her accounts with the use of those cards and by other means; and admitted further that his plan was to go gambling and to use the rest of the money he had hope to take or had taken to pay off debts.  The basis of the complaint was that in cross-examination the counsel for the prosecution asked questions tending to show or seeking to suggest the commission of theft offences not charged, and it is said that incurable prejudice was thereby caused. 

23.The judge’s comments that the testimony was such as did not justify a view that the killing was for money was it seems to us with respect a generous view of the matter.  We think that there was a great deal of testimony to support the view that money was indeed the motive.  Indeed it is difficult to see what other motive there could have been, the issue of provocation aside.  Counsel for the prosecution was entitled to pursue the line he pursued, and it would have been surprising if he had not done so and Mr Haynes wonders now why Mr Mullick did not object.  The answer seems to us to be obvious.  He did not object at any stage because the line of cross-examination taken by the prosecutor was the most obvious one to pursue on the facts of the case and, accordingly, we are satisfied that this ground is without merit.

(4)(b) Lies

24.The summing up was devoid of a lies direction and Mr Haynes has set out in detail the lies which it was suggested by prosecuting counsel in the course of cross-examination were told by the applicant.  Yet this was not a case in which the prosecution were suggesting that the lies were probative or supportive of guilt. 

25.One example was the suggestion made by the prosecution that when the applicant said that he had obtained the deceased’s ATM cards with her consent, that was a lie.       But this, for example, was a lie not relied upon as some independent support of the prosecution’s case.  The prosecution’s case was that the accused had killed the deceased for her money, and the fact that he had used her cards or attempted to do so was evidence which supported that case.  The applicant, on the other hand, said that he took the money because he already had her consent to do so, and she had given him her cards beforehand; whilst the prosecution was that he took her cards after the killing.  This then was a straight issue of credibility and the prosecution used this lie as undermining credibility, not as constituting a separate item of evidence against the applicant, and no lies direction was here required.  But we should say that even if this were an incorrect view, this would have made no difference at all to the result of the case given the applicant’s admission that after the killing he took the deceased’s wallet and its contents as well as her mobile telephone and given also his extraordinary conduct after the stabbing.  In other words in this instance – as with other lies to which we have been taken which also did not in our opinion require a lies direction – we would unhesitatingly have applied the proviso. 

(5) The cumulative effect

26.The final ground is a catch-all ground which suggests that there is a lurking doubt in this case or should be; that there is much evidence against the case of specific intent, and much that is supportive of a case of provocation.  We do not with respect agree.  The evidence against this applicant was, so it seems to us, overwhelming and the cumulative argument in this case does not take the application further. 

Conclusion

27.Accordingly, this application for leave to appeal against conviction is dismissed.

Mr John Reading, SC, DDPP and Mr Timothy Tso, GC of the Department of Justice for the Respondent

Mr John Haynes assigned by Department of Legal Aid for the Applicant