R v. Wong Tat Chuen

IN THE COURT OF APPEAL

1996, No. 509
(Criminal)

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Coram: Hon Nazareth V-P, Liu JA and Stuart Moore J in Court

Date of hearing: 21 March 1997

Date of delivering judgment: 3 April 1997

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J U D G M E N T

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Nazareth V-P (giving the judgment of the Court) :

Introduction

1. On 4th September 1996 the applicant was convicted of murder by Saied J sitting with a jury in the High Court and sentenced to life imprisonment. The applicant now applies for leave to appeal against his conviction.

2. The applicant had admitted being involved in the murder of Choy Sau-han (the deceased), but gave two versions as to what happened. The first was given to the police in interviews under caution and video-taped reconstructions of the murder. In these, the applicant admitted fully to his involvement in the murder. The second version was given much later at the applicant's trial when he gave evidence. In this he said that he had plotted not to kill the deceased but to kidnap her for a ransom, and that the police had tricked him into making his earlier statements. Both versions, indeed the facts generally, can be taken from the very helpful outline in Mr Zervos's written submissions, upon which Mr Poll for the applicant also relied.

The facts

(i) The first version

3. When the applicant was arrested, in several interviews under caution, he said that the plot to murder the deceased was hatched by her husband, then a serving police officer who was called Raymond, and a friend of Raymond, Ah Fai. They asked the applicant to join in and he agreed to do so. Raymond was in financial difficulties and wanted to kill his wife in order to obtain insurance payable on her death. The applicant was to receive $150,000 after the job was done.

4. Raymond was to arrange to meet the deceased at about 7.00 pm on 19th October 1995 at the Prudential Centre in Kowloon. The applicant and Ah Fai were to pick up the deceased on the pretext that Raymond was working at Sha Tin and that they were to take her there for dinner. They were to beat her to death in the car and dump her at a construction site in Ma On Shan.

5. The applicant and Ah Fai picked up the deceased as arranged. Ah Fai was the driver and the applicant sat in the rear seat with the deceased to his left. While driving, somewhere along Tai Po Road, the applicant struck the deceased with a brick twice on her right forehead. The brick had been picked up by Ah Fai at his home and brought along for the purpose of the applicant using it to hit the deceased. The deceased struggled frantically, opening the door but the applicant grabbed her by the hair and forcibly dragged her back into the car. He pressed the deceased on the floor of the back seat using his hands and feet. The deceased was curled up on the floor. At this stage her handbag fell out of the car. The deceased was still struggling and the applicant struck her on the back of the head with the brick about three or four times. They drove to a car park where the applicant was holding down the deceased. He hit her again with the brick. She struggled and screamed but was subdued by the applicant who held her down using his hands and feet while Ah Fai wrapped a rope round her neck and choked her. She became motionless. They drove to Kwun Tong Ferry Pier where they both dumped her into the sea.

6. They then washed the car but because the blood could not be removed from the back seat, they dismantled it and threw it away. They also discarded the clothes they were wearing. Later, to make sure that all the blood had been removed, the applicant burned the rear compartment of the car. The petrol for the purpose was purchased on 24th October 1995. The applicant's identity card number was recorded by the sales staff when he made the purchase. The car had been borrowed from Ah Fai's elder brother and they replaced the original number plates with a pair of false number plates. The latter, together with some of the deceased's personal effects were dumped. The applicant took the police to where they were dumped in the sea and the pair of false number plates were recovered by police divers. It was Raymond who had arranged for the false plates to be made. This was confirmed by the maker of those plates.

7. In the video-taped reconstruction of the murder, the applicant described and explained the events surrounding it. The applicant also told the police Raymond had instructed him what to say in order to reduce the charge to manslaughter. He suggested the applicant could repudiate his statement of admission of guilt by saying the police had stripped him and threatened to arrest his wife.

(ii) The 2nd version

8. The main difference of significance between the applicant's first version and that at his trial was his denial that he had intended to kill the deceased and his claim that he was merely to assist in a kidnapping, and also that Raymond and Ah Fai had the intention all along to kill the victim and Ah Fai carried out that plan himself, strangling and hitting the deceased. He said that Raymond asked him to assist in killing Raymond's wife, but he thought Raymond was joking. The applicant told Raymond and Ah Fai he would not assist them in killing people. Raymond said he was merely joking. After thinking it over, Raymond said their plan was to kidnap the deceased and demand a ransom of $1 million from her family.

9. Ah Fai asked the applicant to assist in knocking the deceased unconscious and taking her to Ma On Shan where they would meet Raymond. After that the applicant could leave. The applicant agreed to participate on hearing that no one would be killed and on the basis of his receiving $150,000 from the ransom.

10. Ah Fai told the applicant he would put a piece of brick under his feet in the car and when they travelled a certain distance, he was to hit the deceased with the brick on the right temple once or twice. The applicant said he was thinking of knocking her unconscious but did not realise she would sustained such injuries.

11. The applicant in his evidence admitted, as he had done in his earlier statement, that he hit the deceased with a brick twice on her right temple. The deceased struggled and opened the car door. The applicant grabbed her by the hair and together with Ah Fai, they subdued her. The applicant said he was afraid she might carry on struggling, so he pinned her down. The deceased kept struggling and knocked off the applicant's spectacles. Then Ah Fai told him to knock her unconscious quickly. The applicant hit her head three or four times, but still she was not rendered unconscious and even asked him to stop hitting her. He told her to stop crying and making any noise then he would stop beating her. Then she did not say a word.

12. The applicant said he felt the car stopped in a car park. He saw Ah Fai get out of the car and then open the rear door. The applicant said he was still pinning her down and he was fumbling for his spectacles. When he got his spectacles on, he found that Ah Fai had already wound a string round her neck and was strangling her. He said that Ah Fai was pulling the string with one hand and his left leg was pressing her right shoulder and he was also hitting her with a piece of something he held in his right hand.

13. Seeing this, the applicant shouted at him "Do you make a mistake? Are you crazy?" Ah Fai did not let go where upon the applicant got out the car and pushed Ah Fai away saying, "Are you going to kill her?". The applicant said Ah Fai grabbed him by his arm and told him that the blackmail and kidnapping were not genuine. If she did not die, the sum of insurance would not be obtained. Then Raymond and Ah Fai would be in trouble. Hearing this, the applicant retorted "What's wrong with all of you? What else do you people conceal from me? If you do not tell me clearly I'll make a report to the police?" Ah Fai then told him if he made a report to the police he also would be in trouble. He would be arrested and what would happen to his children. The applicant said he had been trapped. Ah Fai said that initially Raymond and he had not intended to cheat the applicant, but the applicant was in need of money and when he refused to assist and went away, they decided to cheat him. If he did not tell anyone, nobody would know and he should finish the matter for them. The applicant got confused and was unable to make a decision. Ah Fai then checked on the deceased and said she was dead. The applicant lamented "Oh, too bad, too bad". He was worried. He told Ah Fai he had no alternative but to assist Ah Fai. They dragged the deceased back into the car but instead of dumping the body at a construction site, they decided to throw her into the sea close to the Kwun Tong Ferry Pier.

14. On 20th October 1995 Ah Fai who was in Mainland China by then contacted him and expressed concern about the car. So, on 24th October 1995 the applicant purchased petrol and set fire to the car.

15. That in substance comprised the applicant's second version. As already mentioned, he claimed that he was tricked, induced and persuaded by the police to implicate himself and say the things he had in his statements to them.

The causes of death

16. These, like the applicant's two versions, were fully and clearly dealt with by the judge. He referred to all the injuries described by the pathologist. All those of significance were to the head. He set out the effect of the pathologist's evidence and returned to this again towards the end of his summing-up at p.62 in the following words:

"As you will recall he described the head injuries as being of a very severe nature and potentially fatal, as were, indeed, the signs of strangulation by the ligature. He gave his reasons why he concluded the drowning contributes, but he suggested that the focus should be on the very severe head injuries and the potentially fatal strangulation. The mechanism of drowning was to be considered, he said, as the last straw leading to the death of an already dying woman."

Grounds of appeal

17. The applicant's perfected grounds of appeal were:

"1. The learned trial judge failed to adequately direct the jury as to nature and scope of a joint enterprise and in particular to the fact that although the appellant may have inflicted serious injuries upon the victim they may not have been the injuries which caused the death of the victim, those injuries having been caused by an accomplice who had gone beyond the scope of the agreed enterprise.

2. In all the circumstances of the case the verdict is unsafe and unsatisfactory."

The applicant's submissions

18. Mr Poll appeared for the applicant before us and also below. His submissions can be summarised in the following way.

19. Of the three substantial causes of death, only the blows to the head could be attributed directly to the applicant. He conceded that they must have caused and have been intended to cause serious bodily injury. He pointed, however, to the applicant's evidence that when he got his spectacles on, he saw Ah Fai hitting the deceased with a piece of something held in his right hand. Those blows, Mr Poll contended, must have been struck with a stone or something similar and must have been to the head. They were delivered, he stresses, not by the applicant in trying to render the deceased unconscious, but by Ah Fai with the intention of killing her.

20. In that light, Mr Poll submits the head injuries, as a substantial cause of death, could have been caused by Ah Fai and not the applicant. Or putting it in another way that death may have resulted not from the blows struck by the applicant but those struck by Ah Fai. This matter, he submits, was not dealt with by the judge in his summing-up. As the only basis upon which the applicant could be liable for that action of Ah Fai, there should have been a proper direction on joint enterprise, and there was no such direction.

The summing-up

21. As Mr Poll conceded, the summing-up in its opening passages began with a classic definition of murder stating the requisite intention as either the intention to kill or to cause really serious injury. It stressed that murder requires intention and added "nothing less will suffice" and also that the jury "Uust have regard to all the relevant circumstances including what the defendant said and did" in deciding whether the applicant had the necessary intention. After setting out the facts and indeed each of the applicant's two versions very fully, as Mr Poll conceded, the judge went on to say this at p. 61:

"It has been rightly said to you, members of the jury, that the sole issue in this case is that of intention. That is, what the defendant's intention was in the assault that he launched upon the deceased in the car."

He then went on to add that this was a matter of inference upon a consideration of all the circumstances. He continued:

"I stress that before you can find him guilty of the felony of murder, you must be satisfied so that you are sure that when he inflicted this violence on the deceased, he had in his mind a positive intention of murdering that woman."

22. He then turned to considerations which would assist the jury in their approach to the pathologist's evidence, the defendant's real intention with reference to the two different versions and some specific matters. He continued:

"Having considered these matters in the light of the evidence as a whole, if you find that the defendant did make those confessions and that they are true, then you may go on to consider whether you are satisfied beyond reasonable doubt that the defendant with intent to do so, caused the deceased severe bodily harm. And the fact that she subsequently died as a result of those injuries and the strangulation by another person in which, according to his statements, Exhibits P2 and P3, he participated fully and rendered assistance by pressing her down until she became feeble and motionless, then you will find him guilty of murder."

23. Mr Poll fully accepted all the foregoing as proper and unobjectionable. However, it was upon the immediately following passage in the summing-up that he focused upon in support of his submissions. This was as follows:

"Also in the situation where the deceased had received some very serious injuries to her head, that being the part of the body which the defendant had admitted he attacked, and his latter three or four blows being much harder than the previous two, and that she had died subsequently, in the words of the pathologist, 'the mechanism of drowning hastening the death of an already dying woman.'"

Mr Poll submits that "Also" at the beginning of that passage meant also the jury might find the applicant guilty in the situation mentioned. In sum, he therefore submits that the summing-up was unsatisfactory in not calling to the jury's attention the probability or possibility that death resulted from Ah Fai's blows and that this was compounded by the absence of a proper direction on joint enterprise, which would be the only basis upon which the applicant could be held liable for a substantial cause of death. In the result, he submitted, the verdict was unsafe and unsatisfactory.

Consideration of submissions

24. Mr Poll's entire submission hinges upon the applicant's evidence that when he got his spectacles back on, Ah Fai was hitting the deceased with a piece of something he held in his right hand. We pause here to add that the description of the facts given earlier, recounting this part of Ah Fai's version, is a verbatim reproduction of the judge's summing-up, which was agreed by counsel on both sides to be a fair and accurate account of the applicant's statements and evidence.

25. It is apparent that the applicant did not say that Ah Fai was hitting the deceased on her head. Mr Poll sought to overcome that by adverting to a reference in his pupil's notes to these blows being to the head. However, it transpired that such a reference emerged from a question put in cross-examination by prosecuting counsel, in circumstances that do not, in our view, show or even suggest that the applicant was saying the blows were to the deceased's head. Mr Poll also sought to reach that conclusion from the absence of serious injury to the remainder of the deceased's body which one would have expected had the blows been delivered with a stone or brick. However, there was no evidence that the "Piece of something" held by Ah Fai was a stone or brick.

26. It is also relevant in assessing the value of the applicant's evidence on this point, that he claimed that he had told the police about Ah Fai hitting the deceased but that they declined to record it, insisting that death was due to strangulation.

27. That then is the tenuous nature upon which the entire submission is founded.

28. As to how such evidence of a substantial contributing cause of death should be approached, there appears to be no authority; at any rate counsel have not been able to find any. Upon any view of the matter, even if the blows alleged to have been struck by Ah Fai (despite a singular lack of evidence) were a substantial cause of death, it is clear from the evidence that the applicant's blows were themselves a substantial cause of death, as indeed Mr Poll conceded. It is significant that all the applicant's blows are established by both of the applicant's versions. In these circumstances it is difficult to see how the verdict could be unsafe and unsatisfactory. That is sufficient to dispose of the appeal but in deference to counsel's submissions made in part in response to our questions designed to clarify his submissions, we go on to the following additional considerations.

29. The judge's emphasis upon the intention of the applicant, (apparent inter alia from the passage of the summing-up quoted) although placing an unduly high burden upon the prosecution, point strongly to the jury having accepted as true the applicant's first version, which leaves no room for Mr Poll's submissions.

30. To proceed, it is said in para. 19-6 at p.1575 of Archbold 1997 that:

"In homicide cases, it is rarely necessary to give the jury any direction on causation as such. When such direction is needed, they should be told that in law it is enough that the accused's act contributed significantly to the death; it need not be the sole or principal cause thereof (see R v Pitts (1842) C.& Mar. 248; R v Curley, 2 Cr.App.R. 86, 109 CCA)."

31. Somewhat more of assistance here is that provided in the later passage concerned with "Medical treatment: causation" where it is said in para.19-12 at p.1578:

"It is not the function of the jury to evaluate competing causes or to choose which is the dominant provided they are satisfied that the accused's acts can fairly be said to have made a contribution to the victim's death, 'significant' meaning a contribution which is more than negligible."

32. In R v Cheshire (1991) 93 Cr.App.R. 251, one of the authorities relied upon for the foregoing statement, the Court of Appeal said this:

"Where the law requires proof of the relationship between an act and its consequences as an element of responsibility, a simple and sufficient explanation of the basis of such relationship has proved notoriously elusive.

In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased adding that the accused's acts need not be the sole cause or even the main cause of death it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.

It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused's acts can fairly be said to have made a significant contribution to the victim's death. We think the word 'significant' conveys the necessary substance of a contribution made to the death which is more than negligible."

Mr Poll rightly pointed out that the foregoing was all said in relation to medical treatment as the cause of death. Nonetheless, it seems to us that in principle it must apply equally to the circumstances in this appeal, in particular regard to the tenuous nature of the contributory cause of death claimed to have resulted from Ah Fai's blows. It is that nebulous basis upon which Mr Poll's entire submission rests. Clearly, it does not provide the necessary foundation. More than that, the judge put the entirety of the two versions fairly and fully to the jury. It was not for him to speculate or to invite the jury to speculate upon so remote a possibility as that now contended for. There was no more than the highly suspect and vague statement of the applicant that he noticed Ah Fai striking the deceased with something. It was never actually suggested at the trial that those blows were to the deceased's head, nor that they had anything to do with the cause of death. The judge dealt sensibly and sufficiently with the matter in the way he did. The jury in coming to the conclusion they did, could not have done other than discount the remote possibility not supported by any evidence that that death might have resulted from blows, that Ah Fai might have struck, and that might have landed on the deceased's head. We reject the applicant's first and primary ground. Without that, the second ground, that the verdict was unsafe and unsatisfactory, must also fail. We accordingly dismiss the application for leave to appeal against conviction.

Representation:

Mr M. Poll (DLA) for the Applicant

Mr K.P. Zervos (Crown Prosecutor) for Crown/Respondent