Leung Chi Ching v. The Queen
Read the full judgment text of CACC 459/1969 on BabelCite. This Court of Appeal judgment was delivered on 21 July 1969.
1. The appellant, a young man now 18 years of age, was convicted of murder and ordered to be detained in safe custody until Her Majesty's pleasure should be known. He now applies for leave to appeal against that conviction.
|
CACC000459/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 459 of 1969 -----------------
Coram: Rigby, S.P.J. & Huggins, J. Date of Judgment: 21 July 1969 ----------------- JUDGMENT ----------------- Rigby, J.: 1. The appellant, a young man now 18 years of age, was convicted of murder and ordered to be detained in safe custody until Her Majesty's pleasure should be known. He now applies for leave to appeal against that conviction. 2. The brief facts of the case were that at about 10 p.m. on the evening of the 15th December the deceased, a woman about 48 years of age, was found lying dead on the floor of the premises at which she lived at a Resettlement Estate in Kowloon. The police were called and arrived shortly afterwards, together with a police pathologist. A piece of tape was found tied several times tightly round the neck of the deceased, and tied and knotted at the back of her neck. There were bruises on her face, her lips were split, two of her upper teeth were broken and some of her lower teeth were loose. There was evidence that the cause of death was strangulation. 3. A radio in the room was found in circumstances which indicated that some attempt had been made to prise it from the wooden frame in which it had been secured. A shirt belonging to the 21 year old son of the deceased, who also lived on the premises, was also found to be missing. The appellant had lived in these premises with the deceased on two previous occasions for some short periods of time and had in fact only left the premises some days prior to the 15th of December. This, according to the evidence, was apparently due to some minor disagreement which he had with the deceased's son. 4. The deceased was regarded by her neighbours as somewhat simple minded, and it was said that she was in the habit of talking to herself from time to time. There was evidence that at about 6.30 p.m. that same evening the appellant had gone to the premises of the next-door neighbour of the deceased and had asked her for the loan of a chopper with which he said he wanted to obtain admission to the deceased's premises. The neighbour knew that the appellant had in fact been living previously with the deceased and, indeed, was under the impression that he was still living with the deceased. She accordingly lent him the chopper. Some minutes later he again returned to the neighbour and asked for the loan of a table knife with which, according to him, he wanted to prise open the door of the deceased's premises in order to obtain admission. Again, without demur, she lent him the table knife. Again, some few minutes later, he returned again to this woman's premises and said that he had no need for the use of the table knife and the chopper because the deceased herself was inside the premises and would open the door to him, and he accordingly returned the chopper and the table knife to her. This witness said in evidence at the trial that subsequently she heard the sound of conversation coming from the premises and the voices of the appellant and the deceased and, indeed, that having gone outside the door of her premises she was able to see the head of the appellant, through the window, sitting in the deceased's premises. Later, again, she saw the deceased come out on to the small verandah of the deceased's premises and look down, apparently into the street. According to her evidence that was the last she saw or heard of the matter. 5. The appellant was arrested on the 13th of March, nearly three months after the incident. Subsequent to his arrest, when cautioned by the police officer who arrested him, he made a statement, which was recorded by the police officer, and in the course of which he admitted that he had been responsible for killing the deceased. He said that he had been in the premises, that he had gone back there to obtain a pair of slippers and that while he was in there the deceased came in and threw a vegetable chopper at him; that there was a struggle, and that in the course of the struggle he took hold of a piece of string which was hanging from the side of the wall and tied her neck up, without of course intending at that time to kill her. He concluded the statement with the words:-
6. Some hours later, when formally charged with the murder of the deceased, he made a further statement, after being duly cautioned, in which he elaborated to some extent on the earlier statement which he had made. He said in the course of that statement that the deceased came at him with the chopper and chopped at him at random, and that she also got hold of his private parts, that he had no means of getting away, that he became frightened, and that he took the piece of string from the side of the wall and strangled her, and that thereafterwards he left. 7. The case for the prosecution was that at some stage of the proceedings either before he went to the premises or whilst he was on the premises, the appellant formed an intention to steal, that he was in the course of stealing the radio set when he was surprised by the deceased and that thereafter, in those circumstances, he deliberately and intentionally caused her death. 8. The case for the appellant was as anticipated or indicated from the earlier statements that he had made, that he had gone to these premises in order to recover a diary and documents which he had left on the premises (not, as he had said in his original statement, to recover his slippers and his shirt,) put whilst he was there the deceased woman, without any justification or warning, attacked him with a chopper, and that in the course of resisting her assault upon him he had cause to batter her in the face in the manner in which he did, and that whilst struggling with her he saw and seized hold of a piece of tape which was apparently hanging from the wall, and without the intention of causing her death, he wound it several times round her neck, and that that was, in effect, and without any intention on his part, the cause of her death. 9. The facts and the law were carefully put before the jury by the learned trial judge. The issue, of course, was whether or not the appellant deliberately intended to cause the death of the deceased or intentionally to cause her such serious bodily injury as a result of which she died, or whether he acted as a result of provocation which he received and which would cause a reasonable man to react in the manner in which he did. 10. The defence put forward was fully put to the jury by the learned trial judge, that is to say the defence of provocation which Mr. Donnelly, who appears for the appellant, concedes was, indeed, the only possible defence that could be put forward. It is true the learned trial judge went perhaps unnecessarily far in putting to the jury three possible verdicts - a verdict of guilty of murder, a verdict of guilty of manslaughter on the basis of provocation, and a verdict of not guilty of any offence on the basis, if the jury so found, that the appellant, in acting in the manner in which he did, had used no more force than was necessary for the purpose of defending himself against the assault made upon him. Mr. Donnelly, as I understand it, in this appeal, now concedes that the defence of self-defence was not really a realistic defence upon which the jury could fairly be asked to return a verdict of not guilty of any offence at all. 11. The main ground of appeal which has been raised by Mr. Donnelly is in regard to two passages which appear in the summing-up of the learned trial judge. At Page 4 in the course of his summing-up, the learned trial judge said this, when dealing with the definition of murder. He said:-
Mr. Donnelly makes no complaint, nor indeed can he do so, with regard to the first part of that charge to the jury, but he takes exception to the use of the words "possible result" and has submitted with some force that the words should have been "was a probable result". In other words, that the prosecution were required to show by their evidence that the accused intended to do the deceased some grievous bodily injury of such a sort that any reasonable person would understand that death was the probable result. 12. Again, at a later stage, at the conclusion of his summing-up, the jury asked for a further direction, and the learned trial judge again uses the expression "possible result" as distinct from "probable result". The learned trial judge, in directing the jury, no doubt had in mind the passage from ARCHBOLD, 36th Edition, at Page 2484, which, dealing with the expression "express malice", says:-
and then goes on to say:-
the word there used, of course, is "probably" - "probably cause the death of". 13. Mr. Macdougall has pointed out, and indeed he pointed it out in the course of the summing-up, that the first part of the learned trial judge's charge to the jury was unduly favourable to the accused, because it was sufficient if the prosecution were to prove not simply an intention to kill the deceased but, of course, it would be sufficient if the prosecution could prove an intent to cause the deceased grievous bodily harm and death resulted directly from the harm so caused. It may well be that there was a slip made by the learned trial judge in the use of the expression "possible result", but we are fully satisfied that, upon the facts of this case, bearing in mind the injuries caused to the face of the deceased, the fact that the tape was found wound several times round the neck of the deceased, and tied tightly at the back of it, no jury, properly directed, could have come to any other conclusion than that the intention of the appellant, at the very least, was to cause serious or grievous bodily harm to the deceased. 14. We are wholly satisfied that, even accepting the evidence as to provocation, no reasonable jury could have come to the conclusion that such provocation was in any way sufficient to cause a reasonable person of the age, race and status of the appellant, to have acted in the manner in which he did. Even accepting the evidence as to provocation the question: "Was the provocation enough to make a reasonable man do as he did?" admitted of only one answer, a firm answer in the negative. In these circumstances we are satisfied that this application for leave to appeal must accordingly be dismissed. Representation: Donnelly (Philip K.H. Wong & Co.) assigned for Appellant. McDougall, S.C.C. for Respondent. (Judgment delivered by President) |