Ng Sheung-kwan v. The Queen

CACC000516/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 516 OF 1974

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Coram: Full Court (Briggs, C.J., Huggins & McMullin, JJ.)

Date of Judgment: 3rd December, 1974.

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JUDGMENT

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McMullin, J.:

1. The appellant was convicted of the manslaughter of his five-year-old daughter and upon a second count in the same indictment in which he was charged with cruelty to a child contrary to the provisions of Section 27(1) of the Offences Against The Person Ordinance, Cap. 212. The child died upon the 4th day of October 1973 the cause of death being described in the doctor's report as "massive left subdural haemorrhage". She was taken to the Hong Kong Sanitorium at 8.00 a.m. on the 4th of October by her father, the appellant. Her body was still warm upon examination by Dr. TONG Pak-chuen but she was certified dead upon arrival. Examination of her body at that time, and subsequently by the forensic pathologist, Dr. Roberts, revealed many injuries. These included multiple recent caning marks on her back, buttocks and both upper legs and some seven areas of recent bruising on the head, body and legs of which the most serious, according to Dr. Roberts, were bruises involving the left frontal and left facial areas. These were associated with extensive recent bruising of the skull in the occipital region.

2. Some of the bruises in other areas of the body were said to have been of older origin, possibly as much as one week prior to death but, according to Dr. Roberts, the most likely source of the haemorrhage which caused death was the massive area of bruising on the left side of the head and face and the back of the head. Those injuries, in his opinion, could have been caused by the application of force in the use of any blunt instrument and could also have been caused by the coming into contact of the head of the child with a wall or floor or other flat surface in the course of a fall. There was also an area of small puncture marks on the skin of one forearm which might have been caused by a wire hair brush.

3. The appellant made a statement to the police on the evening of the 4th of October and a further statement upon the following day, both of which were produced in evidence at the trial. In the first of these statements he said that his daughter, who was not entirely normal mentally, had made a rude and unpleasant remark to her elder sister on the morning of the 4th and that he had punished her by requiring her to jump in the manner of a child using a rope for skipping, the intention being apparently that she was to keep up this unusual punishment for some three hours. In that statement he said that she had commenced her jumping when he and the other daughter went out for a walk but that when he returned at twelve she had ceased to jump and was playing with toys. The family then had a meal together and after a short rest he punished her once more by requiring her to jump again. She did so for about half an hour and then he discovered that she had fainted. Efforts to revive her were of no avail and he took her to the Sanitorium.

4. In the statement made upon the following day, however, he gave a distinctly different version of the events preceding the child's death. It would be fair to say, and Mr. Stapp for the Crown in fact confirmed this, that paragraph 10 of that statement was the kernel of the prosecution case against the appellant. It reads as follows:

"On 3.10.73 at about 5 p.m. I discovered Shu Shu was playing in the bathroom. Her body was wet and the floor was splashed with water. I became angry as she failed to do her home work. I told her to sprawl or 'to lie' on top of a tea-poy in the sitting room opposite the bathroom. Then I pulled down her brief and struck her bottom with a cane 10 odd times. She cried and struggled and fell down from the tea-poy to the floor carpet. When she fell, her head hit against the corner of the tea-poy. At that time there was a hair brush with the bristles facing upwards and her hand received abrasion. My wife who was then cooking in the kitchen, came out and told me not to beat her. After her fall, I immediately carried her to a stool made of artificial leather by the side of the tea-poy. I found her left forehead was swollen and one of her hands received abrasive injuries. I at once went to fetch some medicine oil from the studies and applied same to her wounds. After applying the medicine oil, she was quite alright."

In the same statement he went on to say that the remainder of the day had passed without incident and he bathed the deceased and put her to bed. The following day was the 4th of October. He went out and bought some breakfast food for the family of which they all partook including the deceased. It was some time after this that he heard the deceased make the rude remark to her sister which he had recounted in the previous statement. He then gave a roughly similar account of how he had taken the other daughter out for a walk having left the deceased to perform her penitential jumping on his instructions. The remainder of the second statement was also to the same general effect as before. That is to say he returned from a walk and found that the little girl was not performing her penance and that after the meal he caused her to start jumping again while he worked at his desk. At about 3.00 p.m. he noticed that she had stopped jumping and when he got up to look he found that she had collapsed upon the floor. Thereafter he took her to the hospital. He was asked a number of questions following upon the making of this statement and amongst other things he said that he had never seen his wife beating the children.

5. At the trial however the appellant gave an entirely different version of what had occurred. He said that what he had told the police in the two statements was not the truth and that he had given them that version of the facts in order to shield his wife who he suspected of having inflicted the injuries upon the child from which she died. He explained his change of story by saying that his solicitor had informed him that to give false evidence would amount to perjury and that, being unwillin to commit this offence, he found himself under the necessity of disclosing the true facts of the affair. His story to the court was that on the 4th of October after the family had breakfasted the deceased had vomited in the toilet but when he charged her with this she would not admit it. He was upset with her for not telling the truth. He used a cane to deliver a few blows upon her buttocks. He denied having caned the child in the manner described in his second statement to the police and denied that the caning occurred upon the 3rd and not upon the 4th of October. He went on to say that upon being thus beaten the child cried and wakened up his wife who was sleeping in the bedroom nearby. He explained to his wife why the child was crying and his wife apparently decided to inflict further punishment by making her jump up and down. He then took out the elder daughter to the Botanical Gardens for a walk. Upon his return he found the deceased playing and apparently in good health. The family then had lunch together. After lunch the two children were playing in the sitting room but later the elder daughter went into the bedroom for a sleep. His wife then punished the younger daughter again in the same way. He said that his wife explained that she had heard the daughter, the deceased, make a rude remark. He did not approve of this punishment and said that it made him unhappy to see his child being so treated but fearing to have a quarrel with his wife he went to his room to rest, having been assured that the punishment would not be of long duration. He said that he suggested that the child should be made to kneel down rather than to jump by way of punishment but upon this suggestion being rejected he retired. He went to sleep and a short time later his wife wakened him and told him that the younger daughter had fainted. They applied medicinal oil in order to try to revive her and when that was unsuccessful he called a taxi and went with the child to the hospital leaving his wife at home.

6. Notice of application for leave to appeal was filed on 16th July 1974 and three grounds were set out in the notice. Only when the application was called on for hearing on 11th November 1974 was leave sought to amend this notice, although on 5th November a memorandum was sent to the court indicating a desire to amend. It has come to be assumed in Hong Kong that the court will invariably allow amendment of a notice of application for leave to appeal at any time and we wish to make it clear that this highly unsatisfactory state of affairs cannot be allowed to continue. We draw attention to Haycraft⁽¹⁾, where the Court of Appeal in England stressed that an application for leave to appeal, setting out the grounds of appeal, had to be received within the proper time and that an indulgence could not be granted in future in respect of late applications to amend. The relevant statutory provisions which apply in Hong Kong are similar to those which apply in England. If counsel who appears for the defence at the trial considers that the case raises a doubtful point of law or that there is an arguable complaint of misdirection, he should so inform his professional clients so that they may advise the lay client and obtain his instructions to lodge notice of appeal. All too often a convicted person himself lodges a notice of application for leave to appeal stating grounds which manifestly cannot be supported and counsel appears upon the application hoping to argue grounds which bear no relationship to the grounds of which notice has been given.

7. No less than twenty-six separate grounds of appeal appeared in the appellant's memorandum. Mr. Lee, who appeared upon the appeal for the appellant, and who had not prepared the memorandum, abandoned several of these grounds and many of the remainder overlapped to a considerable extent. Such multiplicity does little to assist an appellate court or an appellant. It often may mean that the grounds of real substance suffer by appearing alongside, and being argued pari passu with, other matters which are either without substance or are of such questionable nature or slight import that they merely tend to obscure the principal issues and to detract from the real strength of the appellant's case. It is of course true that in the present case the final or the twenty-sixth ground was that the verdict was unsafe and unsatisfactory. That ground is as yet something of a novelty in the courts and it may, no doubt, be necessary sometimes to support it, for it is very wide and inclusive, by a cumulative mass of criticism directed at the evidence and the summing-up no one item of which may be of great significance by itself. Even where that course is being adopted however the individual criticismsmust be matters of some substance. One would think that the "lurking doubt" to the showing of which this novel ground is always directed is most likely to be conjured up by some single and egregious circumstance or perhaps a combination of one or two such cricumstances arising from the nature of the evidence itself, or from the way in which the evidence was dealt with by counsel or the judge. What the court is asked to address itself to under this ground of appeal is the general "feel" of the case. Minute and extended piecemeal criticisms of the manner in which the judge dealt with the law and the evidence are not usually helpful since they often seem to depend upon a lawyer-like subtlety of inference which, it is to be hoped, is not the customary approach of a jury to the circumstances before them.

8. At all events, so far as the present case is concerned, it can be said that very few of the twenty-six grounds adduced in support of the appeal call for any discussion whatsoever and in fact at the conclusion of Mr. Lee's initial address we asked Mr. Stapp to answer only upon a bare half dozen of them. In the upshot one single point of substance has emerged from this extended tangle of complaints. It is perhaps some indication of the uncorrelated and random approach of the draftsman of this memorandum to the substance of the case that this point finds itself dispersed under the following widely separated heads:

To this for completeness may be added the matter pleaded under the fifteenth head of appeal which is in the following terms:

Now, what all these separate headings of appeal amount to, as it seems to us, is simply this: that the learned Commissioner did not adequately put the defence to the jury. The Crown was in a difficult position in the present case because there was no direct evidence other than the medical evidence to show what had happened to the child. The Crown was therefore compelled to rely upon such of the statements made by the appellant to the police as might be fairly regarded as admissions against his interest in that they connected him with violence done to the child. The important statement in this regard was the one made on the 5th of October. The Crown did not necessarily accept everything that was in that statement but, as was fairly conceded, it supplied the substance of the case against the appellant. That being so it was of great importance that the jury should have been warned that, if they were disposed to rely principally upon the statement and not upon the appellant's evidence in court, that statement did not of itself amount to an admission of having unlawfully, i.e. excessively, chastised the child; secondly, they ought to have been warned that if they did not regard the contents of the appellant's statement as an admission to having excessively chastised the child then, by itself, it amounted to no more than an allegation that he lawfully punished her and that she accidentally injured herself in trying to escape from him.

9. The point was that although the learned Commissioner directed the jury that there was very little evidence to show that the death was accidental he was clearly, at that point, dealing with the possibilities which had been mooted by counsel for the defence when cross-examining Dr. Roberts as to the likelihood that some accidental fall might have occurred and caused the fatal injury at some point of time before or after the occasion when the appellant actually chastised the child. He did not advert, either at that point, or at any later point in the summing-up to the fact that the jury might rely upon the appellant's statement wholly or principally and that they might put upon it an interpretation which in effect amounted to an allegation of accidental death. Mr. Lee therefore suggests that, in telling the jury that, if they were satisfied that the defendant did punish the child as he had himself described in his statement, that evidence was "sufficient" to justify them, if they wished to do so, in convicting upon the cruelty charge, the learned Commissioner was effectively directing them that the acts to which the accused admitted in his statement amounted as a matter of law to excessive punishment. This would, he suggested, if so understood by the jury, amount to a direction that they should find as a fact that the accused had exceeded the permissible limits of punishment, whereas this was the central fact which it should have been their duty to adjudicate.

10. This court is in the difficulty that we do not know precisely what were the factual findings upon which the jury based the convictions. In view of the many marks of injury found upon the girl's body it would seem that they were content to accept the appellant's statement only in so far as it contained an admission of the beating of the girl coupled with an admission that he realised how she had received the fatal injuries. The jury must have regarded this as admitting less than the full truth and must therefore have convicted upon that admission coupled with the post mortem findings of the doctors. At the trial the appellant denied that he had inflicted anything more than a few blows with a cane but he admitted that the medical evidence showed that the girl had been cruelly and excessively beaten. That was patently true, but the only way of bringing home that beating to him, as the perpetrator of it, was by resorting to what he himself had said about it. Therefore, counsel maintained, anything said to the jury which might lead them to infer that what the accused had said about the matter could only amount to a plea of guilty was necessarily a grave misdirection.

11. We felt that there was sufficient substance in this argument to warrant further reflection. In the upshot, however, we do not find it of sufficient substance to warrant interference. At the very end of the summing-up Crown counsel intervened to suggest that a further direction be given in relation to paragraph 10 of the second statement of the appellant. The learned Commissioner then told the jury that if the deceased had received her fatal injuries while trying to escape from the grasp of her father while he was exercising or threatening to exercise excessive violence upon her person they might come to the conclusion that her death had resulted from his unlawful conduct and therefore convict of manslaughter. It was implicit in that direction that they should not convict unless they found that the force described by the appellant in that statement was excessive. We think that this direction, which came at the very end and would therefore have been fresh in the minds of the jury when they retired, would have been sufficient to correct any false impression that the earlier directions might have given and must have made it clear to the jury that it was their duty to interpret the meaning of the statement leaving it open to them to say whether they thought that the accused's own words amounted to an admission of excessive violence or whether they did not. What seems quite clear is that the jury must have rejected the explanation given by the appellant in court. That threw them back necessarily upon his admissions to the police. We are satisfied that upon any reasonable view which the jury might have taken of that evidence coupled with the evidence of the injuries found upon the girl's body the only proper conclusion would have been that the appellant had wholly exceeded the bounds of legitimate correction and was behaving unlawfully in chastising his child.

12. It is further argued on behalf of the appellant that the learned judge failed adequately to direct the jury in relation to the circumstantial evidence in the manner which, it was submitted, this Court had in CHAN Yuet-kwan v. Reg⁽²⁾ said was requisite. In truth the Court was not in that case concerned at all with the sufficiency of a direction to a jury but with the question whether the conviction, which was by a judge sitting alone, was supported by the evidence. It was a case where the "facts" from which the judge was asked to infer the guilt of the accused had themselves to be inferred from primary facts, and this Court took the view that initial inferences consistent with guilt were not justified. The result was that there were insufficient "facts" from which to draw an inference of guilt. That was all that the case decided but the judgment was, unfortunately, so worded that it has sometimes been misunderstood. The Court said:

"It is rightly contended that an inference of guilt may not properly be drawn from primary facts unless it is the only inference which can reasonably be drawn from those facts. Nor can any combination of inferences amount to proof of guilt unless in each instance the only reasonable inference which can be drawn from the facts on which it is based is one of guilt, for where primary facts admit of two inferences, one of guilt and one of innocence, they can give rise to no more than suspicion and if suspicion be added to suspicion the total can be no more than suspicion."

We think that the intention would have been better expressed had the words "of guilt" been rendered "consistent with guilt" and the words "of innocence" been rendered "consistent with innocence". However, the Court was not there concerned with the direction which ought to be given to a jury. It was established by McGreevy v. The Director of Public Prosecutions⁽³⁾ that there was no duty on a trial judge to direot a jury in express terms that before they could find an accused guilty they had to be satisfied not only that the circumstances were consistent with his having committed the crime but also that the facts proved were such as to be inconsistent with any other reasonable conclusion. Accordingly we think there is no substance in this ground of appeal.

13. For these reasons the appeal against conviction must be dismissed.

14. The appellant also appeals against the concurrent sentences of thirty months and nine months imposed respectively on the first and second counts. His clear record and the fact that his wife is shortly expecting another child were the matters principally urged in support of his appeal. In all the circumstances we cannot see any good reason to interfere. Taking even a minimal view of the facts which must have been accepted by the jury the assault upon the child was cruel and extreme and amounted to a gross violation of his duty as a parent. The appeal against sentence is also dismissed.

Representation:

(1) (1974) 58 Cr. App. R. 121.

(2) Cr. App. No. 212 of 1973.

(3) (1973) 1 W.L.R. 276.