Au-yeung Ping Keung v. The Queen
Read the full judgment text of CACC 528/1976 on BabelCite. This Court of Appeal judgment.
1. The appellant appeals against his conviction on an indictment for murder. On the morning of 17th December 1974 the body of a 16-year-old girl was found, in a carton designed to contain a television receiving set, on the pavement in Wong Nei Chong Road. The girl was naked and the forensic pathologist gave evidence that she had died of strangulation. From scratches on the neck and face he suggested that strangulation had occurred by pressure from a forearm which the deceased had made desperate
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CACC000528/1976
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----------------- Coram: Pickering, Ag. C.J., Trainor & Cons, JJ. Date of Judgment: 7th August 1976. ----------------- JUDGMENT ----------------- Pickering, Ag. C.J.: 1. The appellant appeals against his conviction on an indictment for murder. On the morning of 17th December 1974 the body of a 16-year-old girl was found, in a carton designed to contain a television receiving set, on the pavement in Wong Nei Chong Road. The girl was naked and the forensic pathologist gave evidence that she had died of strangulation. From scratches on the neck and face he suggested that strangulation had occurred by pressure from a forearm which the deceased had made desperate efforts to pull away. A very thorough examination of fibres and other debris on the body and in the carton by chemists from the forensic laboratory led the police to search for a workshop in the neighbourhood. Such a workshop was found inside the premises of the Americana Company, only a few yards from the spot where the carton was discovered. A microscopic examination of debris from that workshop indicated a very high degree of probability that the body and the box had at some time been inside this workshop. The appellant was an employee of the Americana Company and had been on duty, alone, in the shop on the preceding evening. According to the punch card recording his attendance he was in the shop from 5:45 p.m. until 10:13 p.m. In the first instance the pathologist estimated the time of death as between 9 p.m. and 12 midnight but he later amended that to between 6 p.m. and 12 midnight. The Deceased had left her home in Shaukiwan at about 5:30 p.m. en route to an evening school in Causeway Bay, which commenced at 7 p.m. On the way she planned to call at a newspaper office to insert an advertisement for her elder brother. At about 6:30 p.m. she telephoned to a friend and asked her to make a rendez-vous at the tram terminus in Wong Nei Chong Road - a few yards from the place where the carton was eventually found - and indicated that she was then at the tram terminus. There is no telephone at the tram terminus and the suggestion was made to the jury that the deceased might have gone to the Americana Company to make use of their telephone. The friend kept the appointment and waited for a considerable time but the deceased did not appear. On examination of clothing in the appellant's home there was found a suit the fibres of which matched some fibres found on the body. There was, however, no evidence that the appellant had worn that suit on the material day. Two green fibres of unknown origin were found on the appellant's suit and these matched other fibres of unknown origin found on the body and on the workshop floor. The chemist was of opinion that they all came from the same source. There was then evidence that after the death someone had burned the victim's pubic hair with a hot object, and a soldering iron was found in the workshop, which could have caused this burn. 2. There was a previous indictment of the appellant for murder in respect of this girl's death when the jury returned a verdict of guilty. Upon appeal, however, this court allowed the application and ordered a new trial. The present application is against conviction upon the new trial. 3. Dealing first with Mr. Bernacchi's second ground of appeal which was that the learned trial judge failed to warn or sufficiently warn the jury of the dangers of being misled by a chain of circumstantial evidence, counsel told us frankly that he placed more reliance upon his first ground of appeal and that the second was "simply added for good measure". We consider that the judge's direction in regard to circumstantial evidence was impeccable and we propose to say no more about this ground of appeal. 4. The first ground was that there was no evidence or no sufficient evidence to justify a conviction, or otherwise that the verdict is unsafe and unsatisfactory. The matters relied upon in this regard were largely factual and in particular Mr. Bernacchi submitted eight matters. Having critically examined the submissions in regard to these eight points we have come to the conclusion that, carefully argued in considerable detail as they were, they are of no real substance. Indeed some of the eight submissions were wholly countered by Mr. Caird, for the Crown. Thus the argument that it was of significance that whereas the deceased girl was known to have been wearing a white shirt and white woollen cardigan shortly before her death no fibres from these garments were ever found, was met with the evidence of sixteen white fibres having been found and with the reminder of the impossibility of matching these fibres with the girl's white clothing since the whole of her clothing had been removed after death and disposed of with such efficiency that none of it had ever been found. Again the assertion that the appellant did not go into the workshop was met with the evidence that he did in fact require entry from time to time for the purpose of obtaining tools and switching off lights. The suggestion that some handwriting on a small piece of paper adhering to the arm of the deceased was not that of any employee of the Americana Shop was met with the evidence that the handwriting simply was too small for effective comparison so that the result was not that employees of the shop had been eliminated but that no effective test in respect of them could be made. We do not propose to dilate upon all the eight points which were put forward but would observe that they were all matters for the jury and that on the totality of the evidence we cannot say that the verdict was unsafe and unsatisfactory or that there was no sufficient evidence to justify a conviction. 5. One of the eight points which deserves more specific mention, however, relates to the meal found in the stomach of the girl which, on the evidence had probably been taken some three or four hours before her death. The suggestion was that since the Crown's case placed the time of death at around 6:30 p.m. and the last meal the deceased was known to have taken was commenced at 1 p.m. she must have had a further meal before being killed which, on the evidence that her last meal had been taken some three or four hours before death meant that she was killed after 6:30 p.m. thus rendering more likely the possibility that somebody other than the appellant had killed her on the premises of the Americana Shop after the appellant had punched the time clock there at 10:13 p.m. It was in fact not the Crown's case that the girl was killed at or around 6:30 but merely that she was killed somewhere between 6:30 and midnight though the suggestion was that it was likely that death took place around 6:30 p.m. It was the medical evidence that to determine the time of death from the contents of the stomach was very dangerous and unreliable because the rate of digestion and the rate of emptying the stomach depend upon "many many" factors including the nature of the food ingested, its amount, the digestive power of the individual and the emotional condition of the individual. All this evidence was before the jury who were also aware of the fact that the contents of the stomach were largely identical with the meal which the girl had taken at her home at 1 p.m. and whilst it is undesirable to speculate upon what the jury decided upon this matter, it was certainly open to them, in the context of the whole of the evidence, to conclude that the contents of the stomach represented the meal commenced about 1 p.m. 6. The third ground of appeal was to the effect that the learned trial judge erred in law in admitting the evidence of Miss Yip Kit Ngan and Miss Tang Shui Pik as evidence of similar facts. One of these girls had had the experience on two separate occasions, prior to the offence charged, of having holes burned in her skirt with a lighted cigarette when she was travelling on a ferry whilst the other girl was a witness to both incidents. Mr. Bernacchi challenged the admissibility of the similar fact evidence with great assiduity and in the course of his challenge reviewed exhaustively the law upon the subject. It is perhaps unfortunate that his mind was directed to a "vague sexuality" as comprising the similar facts. In the course of his argument he alluded to this phrase repeatedly in order to disparage it and he was under the impression that it was because of the vague sexuality common to the two incidents that this Court, in the course of the first appeal, had upheld the original judge's decision to admit the similar fact evidence. Moreover, it was counsel's assertion that this Court had used that term "vaguely sexual" in its judgment in the original appeal. When challenged upon this point by the Court Mr. Bernacchi had to concede, which he did with grace after an exhaustive examination of the earlier appeal judgment, by his junior, that no such term had been used by this Court. 7. In truth there was a vague sexuality common to both these incidents but that in itself would not, we consider, have justified the admission of the evidence in regard to the burning of the skirts in this trial. The really bizarre feature common to the two incidents was the application of heat to the thigh region of the living girl and to the pubic hair of the dead girl. Not only was this common feature bizarre but also so very striking that we have no hesitation in upholding the learned trial judge's decision that the similar fact evidence was admissible. 8. Then it is said that despite its technical admissibility the trial judge should have excluded this evidence in his discretion. We do not agree. The evidence had high probative value. It pointed very strongly to the appellant as the probable murderer. It must also have had some prejudicial influence. No jury would view with favour a man who thus treated young girls whom he chanced to be close to in public. But that influence was not sufficient to outweigh the probative strength and, with the proper direction that was given, did not prevent a fair trial of the issue before the jury. 9. Mr. Bernacchi sought to argue another point in this connection. To understand it it is necessary to mention how the evidence of the girls became available to the prosecution and some matters which then occurred. Miss Yip, the victim of the two skirt incidents, lives with her elder brother. He runs a small restaurant at the end of the street in which the deceased lived. He and the deceased were, because of this, quite well acquainted with each other. A few days after the first trial of the appellant had started, the brother telephoned Miss Yip at her place of work and asked her to come to his restaurant. On the telephone he refused to say what was the matter. When Miss Yip arrived there she found a police officer waiting and eventually her story came out. Before she spoke to that officer she had already seen a photograph of the appellant in a newspaper and recognized him as the man who previously assaulted her. But there is no evidence that she mentioned this fact to her brother. Indeed there is evidence which indicates the contrary. Nor is there evidence that she had seen more than that one photograph in the newspaper, although at the time there was considerable publicity in other media. The lack of evidence in these two respects does not appear to have been appreciated in the court below, and unfortunately the error was perpetuated before us. It led to several unwarranted criticisms. On the day following her first interview with the police Miss Yip, and her friend, were shown photographs of four men. One of these was the appellant and each girl picked him out. However, the photographs of the other three men were in black and white whereas that of the appellant was coloured. The day after that the girls went again to the police station and again picked out the appellant from photographs. This time the "parade" consisted of eight photographs and all were in black and white. 10. Mr. Bernacchi argues that in these circumstances the evidence of identification ought not to be admitted or that even if it were it is so suspect that it can carry no weight. He relies upon R. v. Haslam (1). In either event the probative value is so reduced, he says, that it is far outweighed by the prejudicial value and should therefore have been excluded in the discretion of the judge. 11. We feel this point would have been better put as a separate ground of appeal, although we eventually allowed it to be argued. Nevertheless on consideration we do not think there is anything in it. Haslam was a case where the Court of Appeal was led to believe that the police had in effect deliberately shown a photograph of the suspect to witnesses who were about to be called upon an identification parade. That, the court said, was indefensible and it would, if necessary, have quashed the subsequent conviction on that ground alone. That however, is not the position here. It was before she had any contact with the police that Miss Yip saw the photograph in the newspaper. If she is to be believed, it was then that she recognized the appellant and the subsequent photographic parades have relatively little importance. And whether she, and her friend, were to be believed or not were matters solely for the jury. They were very properly directed as to what they ought to take into account in that respect. 12. It was further complained that the learned trial judge misdirected the jury by adversely commenting on the attitude of the accused at a time when he was a prime suspect. The reference here was to an allusion by the judge in the course of his summing-up, to the evidence of a police officer who led a search party to the Americana Shop at a time when the accused was the only person there and who said that it was his impression that at first the accused seemed nervous but soon regained his composure. In another part of the summing-up the judge referred to the evidence of a scientific witness who took articles of clothing from the appellant's home and the judge remarked:
13. We find no substance whatever in this ground of appeal for the simple reason that the comment was not, as alleged, adverse but entirely neutral. It was an aspect of the evidence which the learned judge was entitled to mention in the course of his summing-up and we cannot criticise him for so doing. 14. It was further said that the judge misdirected the jury in mentioning that the breast pocket of the suit which the Crown alleged was worn by the appellant at the Americana Shop on the evening of the killing (an allegation denied by him) was torn. The judge's actual comment was:
15. The learned judge was incorrect in thinking that there was no evidence about the tear which had in fact been mentioned by one of the witnesses but examining that passage as a whole it would seem that the reference to the tear was unnecessary and that it did contain a possible implication that the tear could have been caused in a struggle with the deceased girl; but that implication was greatly played down by the learned judge who described it as "a very small point" and added "of course it may be of no significance at all". We do not consider that anything turns upon the learned judge's reference to the torn pocket. 16. The final ground of appeal was that the judge wrongly withdrew the verdict of manslaughter from the jury. The judge told the jury that the verdicts open to them were guilty or not guilty. The medical evidence was to the effect that the girl had been offering a considerable amount of resistance and that in those circumstances asphyxia would take three to four minutes whereas it would take four to five minutes if there was no resistance. The evidence of the forensic pathologist was that it was unlikely that the assailant had attacked the deceased from in front and in his opinion the constricting element had been the right forearm of the assailant applied from behind the deceased; the scratch marks on the deceased's neck had been caused, in this witness's opinion by the girl trying to pull herself free and were defence scratch marks from her nails. The constriction caused by the arm had displaced the voice box backwards and to the left compressing it onto the spine and resulting in bruising of the voice box. The application of constricting force over the front of the neck had resulted in blood being trapped within the upper part of the neck and also the face, causing the congestion which is a feature of asphyxia and ultimately causing the rupture of the small blood vessels resulting in numerous pin-point bleeding spots over the eye lids and the iris of the eye. In this expert's opinion moderate to severe force was necessary to effect the obstruction to the blood flow and also the air entry. In our view this evidence of strangulation lasting from three to four minutes is only explicable on the basis of an intention either to kill or to do grievous bodily harm. 17. In the case of Sharmpal Singh (2) Lord Devlin giving the reasons for their Lordships' report in a case which also involved strangulation, said:
In the present case the appellant did of course testify but since the defence was that he did not know the girl and had never seen her, he gave no evidence regarding her actual death. 18. Similar considerations to those considered above by Lord Devlin apply and we consider that the judge put the matter to the jury in the only way open to him and that he was right to tell them that the verdicts open to them were guilty or not guilty. 19. For these reasons the application is dismissed. Representation: B. Bernacchi, Q.C. and Ronny Tong (D.L.A.) for appellant. Caird, C.C. for respondent. (1) 19 Cr. App. R. 59. (2) 1962 A.C. 188. |