R. v. Chan Ching Fung
Read the full judgment text of CACC 523/1991 on BabelCite. This Court of Appeal judgment was delivered on 6 August 1992.
1. This is the judgment of the court.
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CACC000523/1991
Criminal law - murder - provocation - reasonable person - appropriate practice suggested where particular characteristics of defendant relied upon. Attempt - common law definition still applicable in Hong Kong. Attempted murder - actus reus - whether jury should be permitted to consider verdict on factual basis other than that upon which the cases both for the prosecution and the defence were conducted.
------------------------------ Coram: Yang, C.J., Fuad, V.-P. & Mortimer, J. Dates of hearing: 6 August 1992 Date of judgment: 6 August 1992 Date of Reasons handed down: 13 August 1992 -------------------------- J U D G M E N T -------------------------- Fuad, V.-P.: 1. This is the judgment of the court. 2. On 23rd October 1991, the applicant Chan Ching Fung was convicted in the High.Court (Bewley, J. and a jury) of two counts of murder (Count 1 and Count 2) and one count of attempted murder (Count 3). She had pleaded guilty on arraignment to arson (Count 4). The applicant was sentenced to the mandatory sentence of death on Counts 1 and 2 and to 5 years' imprisonment on Counts 3 and 4, those sentences to run concurrently. She now seeks leave to appeal against the convictions on Counts 1, 2 and 3. 3. At the conclusion of the hearing on 6th August, we treated the application for leave to appeal as the hearing of the appeal. We dismissed the appeal on Counts 1 and 2. We allowed the appeal on Count 3, quashed the conviction and set aside the sentence on that count. We now give our reasons. 4. At the time the terrible and tragic events disclosed by the evidence took place, the applicant was living in a flat on the 29th floor of the Cheung On Estate on Tsing Yi Island, with her husband Mr. Lau Chun Kwok and one of their daughters, a little girl named Sau Man, aged 7. Their other, younger, daughter lived in China. Also living in the flat were Mr. Lau's two daughters by a previous marriage, Lau Sau Yin (aged 15) and Lau Sau Yung (aged 13). They were the victims of the murder charges. Also in the flat was Mr. Lau's son by his former wife, a 17 year-old boy named Lau Wing Yin who was the subject of the attempted murder charge. The seventh member of the household was the 17 year-old daughter of the applicant by her previous marriage. 5. It was common ground that at the time the alleged offences were committed, early in the morning of 19th July 1990, the only persons in the flat were the applicant, her two step-daughters, now deceased, and her step-son Wing Yin. Mr. Lau had gone to work. The applicant had taken their daughter Sau Man to a relative's house on the evening before, and the applicant's daughter Yau Wai Man had not been at the flat for the past couple of days or so. 6. The relationship between the applicant and her three step-children had been bad for some considerable time. So much so that at one time Mr. Lau had arranged for all three children to live with their aunt "to avoid disputes". When Mr. Lau was first allocated the flat in the Cheung On Estate, he took his son Wing Yin to live with him, the applicant and their children. Later, with tragic consequences as it turned out, to save money, he arranged for his daughters Sau Yung and Sau Yin to join the rest of the family in the new flat. 7. According to the evidence of the boy Wing Yin there were "constant quarrels" between his step-mother and her step-children - "I don't know for what reasons, my step-mother had a dislike for us and she would scold us over trivial matters". He testified that on 16th July he returned home at about 5 p.m. and found the applicant there. She was on the telephone "speaking ill" to someone about him and his sisters. She was saying that his sister Sau Yin had thrown a glass tumbler at her. His sister then told him what had happened and how their step-mother's leg or foot had been cut by glass from the tumbler and how the police had come following their step-mother's report. He said he had scolded the applicant for having reported such a trivial matter to the police and that she had then turned her anger on to him. His other sister had then returned home and quarrelled with the applicant who had then left the flat "flaming with anger", saying that she wanted to report the matter to the police. He said that when she left "she appeared fierce". 8. Lau Wing Yin went on to testify that his step-mother returned to the flat at about 8 p.m. and said that she wanted to take her daughter Sau Man to a friend's house and left with her. There was evidence from her niece that she left her daughter at her home at about 9 p.m. while her own mother was at work. At about 10 p.m. Wing Yi heard what he took to be his step-mother returning home. He was watching television with his sisters at the time. They all then went to bed, he in his own bedroom, and the two girls in the room they shared usually with the little girl Sau Man. 9. The boy then told the court that at about 10:30 p.m. he got up to go to the lavatory and saw the applicant lying down awake in the sitting room. Shortly afterwards when he got himself a glass of water she was still lying there on a couch or bed, still awake. They said nothing to each other. Later he was awakened by the heat. He saw fire burning outside the door of his bedroom. He tried to leap through the flames but was beaten back. He shouted. to his sisters who got up and told him they could not open the door of their bedroom. He then managed to pass through the flames and his hair was singed and his arm burned. He ran into the kitchen. There was fire outside his sisters' bedroom too and they had still not managed to get out of their bedroom. 10. When the boy reached the kitchen he found his step-mother there, standing on the window ledge, holding the bars with both hands. He thought she was not aware of the fire and told her of it. She then tried to "pull [him] out" saying "I want to watch the 3 of you die." She grabbed his arm with both hands, trying to pull him out towards the window at the balcony of the kitchen. They struggled and she said she wanted to jump out with him. She then tried to jump out of the-window herself and so he grabbed hold of her to prevent her doing so. He held his arms round her and told her not to jump. She said she wanted to, and kept trying. He kept holding her back. He then saw the fire brigade arrive. An officer asked him for the keys to the grille. He saw some on the floor. When he tried to get them, his step-mother snatched them from him and threw them away, he knew not where. He tried to find them, but could not. 11. The fire was seen by a neighbour who lived opposite. This was about 2 a. m. He dialled "999" and a patrolling police officer answered the call, followed by the fire brigade. The police officer saw that the grille outside the front door was padlocked with 2 padlocks - one was the usual one the family all had keys to, and used; the other padlock, according to the prosecution case, was one which had not been seen before and for which keys were never found. 12. The front door was open and the police officer saw the 13 year old victim inside. The fire raged behind her. He could not break the padlocks on the grille. The other girl also came to the grille. The police officer tried to pour buckets of water onto them from outside but sadly was unable to save them, as will be seen. When the fire brigade came, they cut the padlocks and went into the flat. 13. The two girls were taken to hospital. The 15 year-old, Sau Yin was found to have suffered 80 per cent burns on her body. The 13 year-old Sau Yung had 77 per cent burns on her body. The doctors could not save the life of either girl. Sau Yin died on 27th July 1990 and her younger sister on 28th August. 14. A Government Forensic Scientist, Mr. Cheng Yiu Sang, was called by the prosecution. He examined the flat where the fire occurred. He found six separate "seats" of the fire. Most of the damage by fire was to the rooms occupied by the two deceased girls and their brother. The partition between their rooms had burned down completely. There was a can of kerosene in the room used by the applicant and her daughter Yau Wai Man. There was a smell of kerosene around. His conclusion was that the fire had been started deliberately at the six separate "seats". 15. Mr. Lau Chun Kwok, the applicant's husband and the father of the dead girls, confirmed his son's evidence about the disharmony in the family. When he had returned from work on the morning of 18th July he had gone to bed at about 8 a.m. He was woken up by the noise of a quarrel between his wife and his daughter Sau Yin. He saw the broken pieces of a tumbler on the floor and that his wife's leg was bleeding. He was angry with them both. The applicant went to report to the police. A police officer returned with her and settled the matter. He said that the LP gas cylinder found in the corridor by the firemen was usually kept in the kitchen and that the family did not use kerosene for cooking. He had never seen the second padlock found on the grille. 16. On 19th July at about 7:30 p.m. the applicant gave a long statement under caution to a Detective Constable through an interpreter (she spoke the Amoy dialect) in the presence of a Detective Sergeant and a Woman Detective Constable. No challenge was made to the admissibility of this, or her second statement. She was told that the Detective Constable had reason to believe that earlier that day she had attempted to murder her three step-children "by means of setting fire" - the girls had not died by this time. She said:
17. She then gave the details of a quarrel she had on the previous day with her husband, her elder step-daughter and her step-son and how she had made a report to the police who had settled the matter at their flat. She said that she went out to buy some noodles and when she returned she-was not allowed in until her daughter opened the door. She went on to say:
18. The applicant was asked a number of questions, again under caution, by the same Detective Constable on the following day. One question and answer was as follows:
A. I did take a wet blanket to put the fire out. Other things were whatever I could fetch and were used to cover the fire. I had no intent to kill people by setting fire. If I wanted to kill people, I would better use poison or knife. I set fire just for the purpose to frighten people. Please forgive me for this time." 19. When she was formally charged by a Superintendent, under caution, she said this in answer to the charge that she had murdered As Young:
When charged with the death of As Yin she responded:
To the arson charge, she replied:
20. Station Sergeant Au Young kWh Bun was called and after he had merely said in chief that he was duty officer at kWh Chung Police Station during the night of 21st July 1990, he was cross-examined by defense counsel, Mr. Ramanathan (who also represented the applicant on the appeal before this court). The witness told the court, in answer to counsel's questions, that at about 10:20 p.m. that night when he was on a routine inspection of the police cells, he saw the applicant in her cell. Her trousers were round her neck and she was hanging from the bars of the cell with her feet off the ground . She was still moving her hands and feet, and breathing, when he held her body up from outside. Two colleagues answered his shouts for help and the cell door was unlocked. She struggled with her saviors. There was blood on her lips. An ambulance came and she was taken to hospital. From what he had seen he thought she was trying to commit suicide. 21. The applicant gave evidence before the jury. She told the court of the unhappy marriage she had and the trouble her three step-children caused her. The family's troubles began when her step-children arrived from China in 1988. When they quarreled with her, her husband took their side. After six months he left with his own children and stopped her allowance; and forced her to give him money. After the flat in the Cheung On Estate had been allocated to her husband all was well for a while until her two step-daughters moved in. The trouble then started all over again. There were daily quarrels. The girls kept her awake at night by coming in and out of the flat and watching television. They scolded her and hit her and wanted her own daughter Sau Man to be sent to China. She developed headaches and felt something heavy pressing her heart. She was unable to sleep and felt very low. 22. She started to drink beer and rice wine at bedtime. Most of her evidence about the events of 18th July had been foreshadowed in her police statement. She spoke of her husband and the step-children hitting her and how she was cut by the broken tumbler which had struck her on her leg. After the police officer who had come to the flat following her report had left she went out to buy food and her step-son scolded her on her return. When her husband had gone to work, all three step-children assaulted her. She ran away from the flat. Her first idea was to buy kerosene to frighten the children. Then she thought she would use it to cook food for herself. The third idea was to go to China. She was, she said, in a state of confusion. She returned with the kerosene and then decided to go to China. She did not go to the flat with the kerosene. She left it in a corner of the park below the block of flats. 23. When she entered her flat she tried to ring her step-sister about going to China but the step-children would not let her. Then she went to her step-sister's house with her daughter Sau Man. When the time came to.go home, Sau Man wanted to stay and play with the other children there and so she left the child and went home alone. She was again abused and assaulted by her step-children. She went to her bedroom with a bad headache. She felt confused and desperate and she was trembling. She had a drink. She then went and fetched the kerosene to cook a meal in her room, but she could not find the kerosene cooker. She continued to tremble and drank some more wine, which she finished off. She went to sleep. 24. When she woke up she was still confused and angry. She slept again. When she woke up again "then the flat caught fire". She accepted that she was the one who had started the fire Her mind was entirely mixed up. She just did not know why she should have done what she did. She did not intend to kill the girls: "I intended to prevent them from assaulting Sau Man and me in the future." She added: "At the time when the flat was on fire, I did not know what I was actually doing and I thought I had reported the matter to the police, yet all the same they continued to assault me. I could not resort to any other methods." 25. She said that she only intended to frighten the children. When she realised how big the fire was she tried to put it out and shouted an alarm. She could not remember what happened in the kitchen. She was in an entirely confused state. 26. Two psychiatrists gave evidence for the defence: Drs. Ching Kit Ming and Chung Sze Yuen. They both concluded that the applicant was suffering from diminished responsibility at the material time. In rebuttal, the prosecution called Dr. Fan Tak Wing. His opinion was that the evidence did not reveal abnormality which was sufficiently substantial to amount to diminished responsibility. The summing up fully reviews this evidence and we do not summarise here it in the light of the issues raised by this application for leave to appeal. 27. The first ground of appeal raises a complaint about the way in which the judge directed the jury on the issue of provocation. This is what the judge said:
28. It is submitted that that part of the summing up is defective because the judge did not go on to use words to the following effect immediately after the passage we have cited "but in other respects sharing such of the defendant's characteristics as you think would effect the gravity of the provocation to her". Mr. Ramanathan took these words from the speech of Lord Diplock in D.P.P. v. Camplin (1978) 67 CrAppR 14, at p.21. 29. Mr. Ramanathan submitted that the judge ought to have drawn the attention of the jury to the following "characteristics" in this context as being relevant to the issue of provocation. He has identified them from the judge's summary of the evidence relevant to the issue of diminished responsibility. The suggested characteristics are: (a) that the applicant had been suffering from chronic depression for several years (the evidence of Dr. Ching Kit Ming) confirmed by the evidence of Dr. Chung Sze Yuen); (b) that a person in the applicant's depressed state was more susceptible to provocation because it was easier to lose one self-control in such circumstances (evidence of Dr. Chung); (c) that the applicant had a primitive personality and did not release her anger in the normal way (evidence of Dr. Ching); and (d) that she was suffering from neurosis arising out of depression, the effect of which was that she exhibited an accelerated response to everyday experience (the evidence of Dr. Fan Tak Wing). 30. Mr. Ramanathan referred us to the decision of this court presided over by Roberts, C.J. in The Queen v. Wong Chung Ming, Criminal Appeal No. 502 of 1985, 30th April 1986 (unreported). In that case, Roberts, C.J. gave it as the opinion of the court (at page 8) that if the full Camplin direction were given in the literal terms in which it was expressed, it was likely to confuse rather than to assist the jury unless, when referring to the accused's characteristics effecting the gravity of the provocation, the judge went on to inform the jury as to the matters which were capable of amounting to the sort of characteristics peculiar to the accused which could be taken into account. The former Chief Justice. then went on to mention the examples given in Camplin of characteristics peculiar to the defendant which might be relevant in certain circumstances. He stated that the conclusion of the court was that the trial judge ought to have given the jury some direction as to what was meant by the accused's characteristics. However, he observed that the evidence disclosed no peculiar characteristics that the judge could have told them to take into account, other than the sex and age of the defendant and his background in society, matters to which their attention had been drawn. 31. In this context we would refer to R. v. Newell (1980) 71 CrAppR 331 where the English Court of Appeal (Criminal Division) presided over by Lord Lane, C.J. described as impeccable, and adopted, a passage and the reasoning it contains, from the decision of the New Zealand Court of Appeal in McGregor (1962) NZLR 1069. Lord Lane said this at pp.338-340:
32. In Mcgregor (supra) the judgment of the court was delivered by North J., and contains the following passage which appears to us to be entirely apt to the situation in the instant case:
We mention here that in his speech in Camplin, Lord Simon of Glaisdale had said, at p.29: "I think that the law as it now stands in this country is substantially the same as that enacted in the New Zealand Crimes Act 1961 section 169 as explained by the Court of Appeal of New Zealand in McGregor." 33. Even if all or any of the aspects of the mental state and character of the applicant pointed to by Mr. Ramanathan could be regarded as relevant characteristics in the sense of the word used by Lord Diplock in Camplin (which we seriously doubt) we do not think it could fairly be said that the provocative words and conduct put forward by the defence were in any way related to the alleged particular characteristics relied upon. As examples, a defendant's race is irrelevant if the provocation is an insult about a physical disability. His sex would be irrelevant if the provocative act was a racial taunt. 34. We suggest that it would be good practice, whenever particular characteristics are sought to be relied upon by the defence in the context of provocation that, in the absence of the jury, these should be discussed and identified by the judge with counsel, on the analogy of the approved practice when issues regarding corroboration arise. This seems to us to be specially important where, as so often happens, defences of provocation and diminished responsibility are run in the same case. If particular characteristics are relied upon, and the judge feels that he can properly put them before the jury for their consideration, they should be mentioned by the judge and their relevance carefully explained. We find no merit in the first ground of appeal. 35. The second ground of appeal relates to the way in which the judge directed the jury on the burden of proof in respect of the defences of provocation and diminished responsibility. Mr. Ramanathan drew our attention first to the following passage in the summing up:
Counsel's complaint relates to the first sentence of thatpassage, and particularly to the use of the word "established". He acknowledged that the judge had initially given proper directions as to the burden and standard of proof in respect of the two defences raised, in this passage:
36. However, counsel contended that by saying what he did in the first sentence of the passage cited above from page 4, the judge had blurred the distinction between the incidence of the burden of proof as it applied to the two defences. This, he said, had the effect of reversing the burden of proof on the issue of provocation and may have caused the jury to address the issue on the basis that it was for the applicant to establish the defence rather than for the Crown to disprove it. As the very least, he suggested, the jury might have been confused. 37. The direction which counsel conceded was correct was given probably less than a minute before the words complained of. In our view, the jury could not possibly have forgotten what they had just been told. When this part of the summing up is read as a whole we are satisfied that there was no misdirection, and that there was no possibility of confusion in the jury's mind. This ground of appeal also fails. 38. The third ground of appeal makes reference to certain passages in the summing up (set out below) and states that the judge was thereby, in effect, suggesting to the jury that "lies told by the applicant could amount to guilt of the offence". The judge had therefore misdirected the jury on the proper approach to the applicants evidence. In particular. It is said, the judge failed to direct the jury that lies do not necessarily amount to guilt and failed to direct them as to the manner in which they should approach the issue of lies if they concluded that the applicant had lied.
39. Mr. Ramanathan submitted that in the light of all the evidence led by the prosecution and the defence, the applicant's credibility was a matter which the jury had to consider in assessing the evidence as a whole and her credibility would have been a crucial factor influencing their deliberations. He pointed out that the judge at no time had specifically explained to the jury that even if they thought that the applicant may have been lying on one or more of the facts she related in and out of court, this did not mean that she was guilty of the offence charged. 40. Mr. Ramanathan cited Broadhurst v. The Queen (1964) AC 441 where at p.457, Lord Devlin, giving the judgment of the Privy Council said this:
41. Mr. Ramanathan drew our attention to the unreported decision of this Court in The Queen v.Keung Sin Chi, Criminal Appeal No. 965 of 1983 where Yang, J.A. (as he then was) speaking for the court cited and adopted that passage from Broadhurst. Mr. Ramanathan did not seek to persuade us that the passage in his judgment which immediately follows the citation from Broadhurst was an incorrect statement of the law:
42. It was submitted, however, that the passage from the judge's summing up at p.31, set out above, was likely to induce the jury to take the view that lies might be indicative of proof of guilt and that this was the sort of case in which the judge should have given a Broadhurst direction. 43. We do not understand the passages relied upon in the way contended for. The judge was not suggesting that any particular lie (if the jury found it to be one) strengthened the inference of guilt. All he was doing, it seems to us, was to tell the jury that it was their task to determine where the truth lay on the facts disputed. We do not think that this was the kind of case that demanded a Broadhurst type direction. We also draw attention to the fact that the judge, in the same passage set out above (page 31) gave a clear indication of his own opinion that the applicant might well have been in a state of confusion before the fire and after the fire. We do not find that there was a non-direction. This ground of appeal has no substance in our view. 44. Having rejected grounds 1, 2 and 3 in the Notice of Appeal, ground 4 (that by reason of the matters raised in the earlier grounds of appeal, the convictions on Counts 1 and 2 are unsafe and unsatisfactory) falls away. 45. The fifth and final ground of appeal is that in relation to Count 3 (the attempted murder of the boy Lau Wing Yin) the judge had erred in law in inviting the jury to consider that count on a factual basis other than one, upon which the cases both for the prosecution and for the defence had been conducted. The applicant, it was argued, had been prejudiced by the fact that the Crown had been allowed to shift the basis of its case. 46. Mr. Ramanathan drew attention to the following passages in the summing up (which, it must be accepted, clearly show how the judge saw the prosecution case):
47. What happened which gave rise to counsel's complaint was this. After the jury had been out for about three and a half hours they sent a written question to the judge. He read it out to counsel in court in the absence of the jury. The question was in this form:
48. Counsel for the Crown then submitted, in response to a question from the judge, that it was the Crown's case that the attempt was directed towards the three children, although the Crown had put it "on the basis that it was the actual dragging [Wing Yin] towards the window and seeking to thrust him out of the window". He submitted that on the facts it was open to the jury to consider both "-'the setting of the fire in that particular doorway as being part of the attempted murder, and equally the attempt to pull him towards the window and thrust him out of the window." 49. After Mr. Ramanathan had referred to his recollection of prosecuting counsel's closing address, Crown counsel said:
50. Counsel for the applicant then pointed out that he had addressed the jury on the basis of that particular alleged incident. He suggested that it was far too late in the day for the jury to be invited to start considering any earlier point in time because they might be "embarking into areas of evidence that perhaps ha[d] not been fully canvassed." 51. The judge overruled the objection in these words:
52. In our judgment, the complaint made by Mr. Ramanathan was justified. When counsel then appearing for the Crown opened the case (see page 77 of the transcript) he spoke about the defendant grabbing the young boy and attempting to throw him from the 29th floor through the window but that he was strong enough to resist. In his closing address to the jury he does not mention events relating to Count 3 specifically. It is clear from pages 321 and 322 of the transcript that defence counsel thought he had to meet case of attempted murder on the basis of the incident in the kitchen when it was alleged to throw the boy Wing Yin out of that the applicant tried the window. 53. The defendant is entitled to know precisely what conduct is alleged by the prosecution to be the actus reus of the offence charged against him. Had defence counsel been in doubt at the outset of the trial what case the applicant had to meet on Count 3, he would have been entitled to insist that the prosecution particularise the facts upon which reliance was placed in support of that count. In the light of what Crown counsel said (at page 35, see above) the particulars given would obviously have related only to the "dragging the boy to the window" incident. 54. When the charge is attempted murder, the actus reus might, of course, consist of a single act or a series of acts, particularly where physical assaults are involved, and the combined assaults might be committed by different means. But here, setting fire to the flat with the necessary intent and trying to throw the boy out of the kitchen window cannot be regarded as elements of the same actus reus. They were not acts of the same kind even though one act followed closely upon the other and both may have been done with the same mens rea. The position would have been entirely different if the allegation had been, say, that the applicant had tried to prevent the boy from escaping the fire via the window. In these somewhat unusual circumstances, the true position might even be that on the facts sought to be proved by the prosecution two distinct offences would have been committed and should have so been charged, if both acts were relied upon. 55. However, other problems arise in relation to Count 3. Firstly, it must be noted that the judge nowhere made it clear to the jury that for the crime of attempted murder nothing less than an intention to kill will do. Especially where a count of attempted murder is joined in an indictment with a count of murder, it is essential for the judge to make the distinction between the relevant intents which need to be proved for each crime plain to the jury. 56. There is a misdirection in the following passage in relation to what is an attempt in law:
57. From the words he used, it is quite clear that the learned judge summed up on this issue on the basis of the law codified by the Criminal Attempts Act 1981 of the United Kingdom. Broadly speaking, what the 1981 Act did was to alter the nature of the actus reus of attempt. Preparatory acts not sufficiently proximate to satisfy the common law became attempts. As Yang, V.P. (as he had become) pointed out in The Queen v. Chan Kwan and Another [1987] HKLR 756, at p.759 Hong Kong has no statute containing the same provisions as the English Act and so the common law still'' applies. We have been told that the position has not changed since that decision. The direction was, therefore, wrong. Judges in Hong Kong must continue to charge the jury in accordance with the common law of attempt. It is just as wrong to sum up as if the statute applied here in Hong Kong as it is in England to sum up on the basis of the common law as it was before the 1981 Act was enacted (see e.g. R. v. Jones [1990] 1 WLR 1057.) 58. Another important point, it seems to us, is that even if it were proper to leave the issue of the attempted murder of the boy by setting fire to the flat to the jury, when the judge gave the additional direction, he did not make it clear to the jury that when considering that act in relation to the boy for the purposes of Count 3, an intent to kill had to be proved, whereas in respect of the two girls the same act could result in convictions on Counts 1 and 2 even if only really serious harm were intended. The jury could not possibly have appreciated the difference and its significance. 59. It was for these reasons that we considered that the conviction on the 3rd count could not stand.
Representation: Mr. Kumar Ramanathan (Director of Legal Aid) for the applicant Mr. Harry Macleod (Crown Prosecutor) & Miss Y.E. Mohamed for the Crown |