HKSAR v. Nee Man Tik

CACC 220/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 220 OF 2003

(On Appeal from HCCC 265/2002)

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BETWEEN

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Coram: Hon Stock JA, Cheung JA and Lunn J in Court

Date of Hearing: 28 October 2004

Date of Judgment: 28 October 2004

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J U D G M E N T

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

Introduction

1.This applicant was convicted of murder on 14 May 2003 by the unanimous verdict of a jury after trial before Gall J., and this is his application for leave to appeal against conviction.  The indictment alleged that on 15 February 2002 at Room C on the second floor of 247 Castle Peak Road, he murdered Zhang Cui Ying.

The defence

2.For the purpose of this appeal, the facts may be briefly stated.  The applicant was a seaman, and the deceased a prostitute from the Mainland.  The deceased’s body was found in a suitcase on the evening of 24 February 2002 in a room in Shamshuipo of which the applicant was the sole tenant.  After the discovery of the body, the applicant was placed on the wanted list, and he surrendered to the police on 26 February 2002.  It was common ground that he had caused the death of the deceased.  The account of how that allegedly happened came solely from the applicant.  He had courted the deceased from January 2002.  On the afternoon of 15 February that year, he met the deceased in his apartment which was the room on the second floor of 247 Castle Peak Road.  There, they had sexual intercourse, after which Ms Zhang answered a telephone call, seemingly from a client.  The applicant wanted to know to whom she was speaking, and she said that it had been a friend.  His story was that he suspected that she was cheating him, and an argument ensued after she confirmed that she was going to see a man.  He tried to dissuade her from leaving and to this end he took hold of her.  She then confirmed that she was going out to see a man who, she said, was a client.  There was a struggle, and she called him a silly boy, saying that she was just playing with him and: “Who am I to you?  If I did not do it, I would not be able to support myself and you could not support me.  You can’t even support yourself.”  He said that he felt very angry and he slapped her several times.  She pushed him away and tried to leave, telling him that he was crazy, and was not to look for her any more.  He lost his temper, and grabbed her neck from behind, for how long he did not know, and he continued to grab her until she became motionless.

3.This was the applicant’s defence.  He had grabbed her neck from behind.  He did not intend to kill her or to cause her serious bodily harm and in any event, her conduct provoked him into acting as he did. 

4.When the body was found it was in an advanced state of decomposition, and there was cable and a plastic bag tied around her neck as well as another noose around her neck.  Her hands were bound.  There was a fracture of the larynx   There is no suggestion that after the events which caused death, accidentally says the applicant, he sought to render or seek assistance; a fact upon which some reliance was placed to answer the contention of the applicant that after his attack he merely thought she was unconscious, and that what had happened had been an accident.

The first ground

5.The contention advanced on behalf of the applicant in this appeal is that for two quite separate reasons the judge should have discharged the jury.

6.The first application for discharge of the jury came immediately after the evidence of Ms Lai, a friend of the applicant.  That evidence was that on 25 February, the day after the body of the deceased had been discovered, Ms Lai received a telephone call from the applicant.  He asked her whether she had read the newspaper about a body being found in a suitcase.  He said that his name was printed in full in the newspaper.  She asked him if what was in the newspaper was true, and he said yes and there then occurred this exchange:

“Q.    Miss Lai, before we had a short break you had told us about Man-tik and yourself having a conversation about what had been contained in the newspaper and you asked, “Was that true?” and he answered “yes”, and then we broke.

A.    Yes

Q.    Did you then asked him, “Why did you do such thing?”

A.    No.

COURT:    Did there come a time when you asked him that?  I don’t want to know what you said.  Can you answer me “yes” or “no”?  If you don’t remember, say so.

A.    I cannot recall.

Q.    What is the next thing you can recall in the conversation you had with Man-tik?

A.    I then asked him if he could remember that he had promised me to correct himself.

COURT:    Yes.

Q.    All right, we can move on from that.  After that, what was the next thing that you said to him?

A.    After that, nothing else was said.  The line was hung up.” (pages 42-43, appeal bundle).  (Emphasis added).

7.The witness was allowed to complete her evidence.  But the following morning, counsel for the applicant applied for the discharge of the jury because of the comment that the applicant had promised to correct himself.  The applicant, who was aged only 22 years at the date of the offence, has previous convictions.  These include an offence of wounding with intent to do grievous bodily harm in 1995, and an offence of assault occasioning actual bodily harm in 2000.  None of these convictions was revealed to the jury.  The concern of counsel who acted for the applicant at trial was that the jury might in the circumstances draw inferences adverse to the character of the accused, which would then impact on his credibility.  Counsel for the prosecution opposed the application, and he suggested that the reference which concerned counsel for the applicant was an obscure one, such that it was most unlikely to influence the jury in the way in which counsel had suggested.  No fuss about the comment had been made in the jury’s presence immediately after the comment was made; in short, it was ignored, and prosecuting counsel suggested in the jury’s absence that the matter was best left undisturbed.  The judge, recognising that he had a discretion in the matter which had, however, to be exercised in a way that ensured a fair trial for the accused, was not satisfied that the words carried such a meaning that the jury might come to the conclusion that the accused had a bad character.  Accordingly, the application to discharge the jury was refused.

Analysis

8.Whether or not to discharge a jury is a matter for the discretion of the trial judge on the particular facts and in the light of the particular circumstances which the trial court faces, and this court will not readily interfere with the exercise of that discretion: see R v Weaver [1968] 1 QB 353 at page 359 where Sachs LJ added these comments:

“It follows, as has been repeated time and again, that every case depends on its own facts.  It also, as has been said time and again, thus depends on the nature of what has been admitted into evidence, the circumstances in which it was been admitted and what, in the light of the circumstances of the case as a whole, is the correct course.  It is very far from being the rule that in every case where something of this nature gets into evidence through inadvertence the jury must be discharged.”

9.So the comment made by Ms Lai to which such objection was, and is, taken must be examined in a realistic context.  As the jury were, and we are, aware, the deceased was a prostitute; so, obviously, the applicant was consorting with one.  Furthermore as he had admitted to the witness he had had something to do with Ms Zhang’s death.  The comment ‘he had promised to correct himself’, a single passing and isolated comment in the course of a six-day trial could bear all sorts of meanings but, most particularly, in the light of his admission at trial that he had used the prostitute with violence, we fail to see the prejudice occasioned by this rather obscure comment, and given also the testimony as a whole and the wholly diplomatic way in which the evidence in question was allowed to pass. 

10.It is also said in argument before us that the judge applied the wrong test when he said:

“In this case, I am not satisfied that the words said carry such an obvious meaning that a jury even might come to the conclusion that the accused had a bad character.”  (Emphasis added).

That comment must be read in context, for in the course of earlier argument the judge had referred to the balance that had to be struck between probative and prejudicial value.  The passage of which complaint is made is preceded by another to which Mr Leung drew our attention, namely:

“I have discretion in this matter and the discretion must be exercised so that the accused receives a fair trial.  If something arises which may prejudice his right to a fair trial, then it is proper that the trial should be stopped and the jury should be discharged.”

In any event, the effect of the attacked passage is that there was in the judge’s mind not even a bare prospect of a conclusion that the applicant had a bad character, for the emphasis was on the words “even might”.  In the event, we see no basis for overturning the exercise of the judge’s discretion.

The second ground

11.After the jury retired, they sent a note to the judge in the following terms:

“No one ever mentioned any money found at the crime scene.  What happened to the deceased’s money?

2.    Any details on defendant’s financial position, and/or expense records, especially during the period say, 1 December to 25 February 2002.

3.    What did the defendant do during 19 February 2002 to 25 February 2002?”

12.Mr Haynes, who appeared for the applicant at trial, immediately applied for the discharge of the jury on the basis that the jury were speculating on a matter about which there had been no evidence, contrary to the judge’s direction in the course of the summing up that they were not to speculate.  The concern was that the jury might be thinking that the applicant killed the deceased in order to steal from her, when there was no evidence to support such a theory.  The judge refused the application, pointing out that it was impossible to know what motivated the jury’s question, and accordingly he directed the jury that there had been no evidence as to whether there was any money at the scene, and that they were not entitled to speculate whether or not there was money, or as to what happened to any item at the scene in respect of which no evidence had been given.  Further, he told them “there is no evidence to suggest that the accused stole from the deceased, or ever had any intention to steal from the deceased.”

13.The ground of appeal here is that the judge was wrong in refusing to discharge the jury.  We have read the arguments in support of this ground, and as well as attending to the oral supplementary argument, and it is unnecessary, with respect, for us to deal with them in any detail.  It suffices to say that we are satisfied that the judge’s decision was entirely correct.  The question raised by the jury was of a type not uncommon to those used to jury trials. This jury deliberated for an extended period and were obviously trying to deal with various possible scenarios. They were entitled to raise the question they raised, and the judge quite correctly told them that there was no evidential basis for the possibility with which they were then apparently engaged. There is no reason to think that that direction was ignored.

Further points

14.This disposes of the grounds of appeal advanced by the applicant.  However Mr Saw SC for the respondent has very properly drawn to our attention a number of passages in the summing up which appear to fall foul of the principles canvassed at length in HKSAR v Lui Tsi Fai, Criminal Appeal No. 340 of 2001, 1 April 2003, unreported, where it was held, in circumstances not dissimilar from the present,wrong for a judge, save where there has been a plea of guilty or other formal admission put before the jury, to direct a jury, that were they to acquit of murder, a verdict of not guilty of manslaughter was not open to them and that they had in such eventuality no choice but to convict of the lesser offence of manslaughter; and this was so even though the accused has by his evidence admitted conduct, which, if accepted, constituted that lesser offence. 

15.The passages in the summing up to which our attention has been drawn are these:

“There is, from the accused himself, evidence that he caused the death of the deceased, so you do not have to decide whether or not the unlawful killing was done by him. He accepts that he did commit an unlawful killing, so that leaves us with the one question that you have to ask in respect of this count.  When he killed the deceased, did he do so intending either to kill or to cause her really serious harm.

… Mr Haynes concedes very properly in all the circumstances that a verdict of not guilty of any offence is not open to you and I think that makes commonsense because if you are not sure the necessary intent was there to kill or cause serious harm, then on his own admission in the witness-box, you would be entitled to believe that he did do an unlawful act which resulted in her death, and he is guilty of unlawful act of manslaughter.”

(pages 22-23, appeal bundle)

“… And if you have insufficient evidence for you to be sure there was the intent for murder, then the question of manslaughter by way of provocation does not arise because that can only arise if you find the necessary intent.

You will then be left – if you are not sure that there is sufficient evidence to find the necessary intent for murder – with the conviction of guilty of manslaughter by way of unlawful act.  That is an offence which the accused in his evidence before you and Mr Haynes in his submission to you said the accused admitted committing, and I have given you the elements of that offence and set out the evidence upon which you would be entitled to rely, if you were not sure of the necessary intent for murder.” (pages 33 to 34, appeal bundle).

16.It seems to us sufficiently clear that the effect of these passages was a direction to the jury to convict at least of manslaughter.  There was nothing by way of a formal admission of guilt to that effect put before the jury and, accordingly, these passages constitute a misdirection and for this reason leave to appeal is granted.  We are however satisfied that this is an appropriate case in which to apply the proviso to section 83 (1) of the Criminal Procedure Ordinance, Cap. 221.  As was the case in Lui, there was here no prospect of an acquittal for the offence of manslaughter, and given the verdict of guilty of murder, no prospect of a full acquittal had a proper direction been given.  Mr Leung for the applicant does not seek to argue this point.

17.There is yet another point canvassed during argument and raised by the court which is the direction by the judge which:

“If you find he did not have the necessary intent for murder which could be reduced by provocation, then it will be open to you to find that he committed [an] unlawful act intentionally upon the deceased and that caused her death and he knew that he could cause her some harm, and that is manslaughter by way of unlawful act.”

That is a misdirection in so far as it asks the jury to apply a subjective rather than an objective test as to the element of danger, but it is not in the event material in that it enured for the applicant’s benefit and there is in any event a correct statement of the law in a previous passage.

Result

18.In the event, we grant the applicant leave to appeal against conviction, but treating the hearing of the application as the appeal and applying the proviso, the appeal is dismissed.

Mr Paul Leung and Mr Ng Alan Hoi Lun instructed by Messrs Yaddy Cheung & Co. for Applicant

Mr D G Saw, SC, DDPP and Ms Mickey Fung, GC of Department of Justice for Respondent