The Queen v. Wong Wah Sing

CACC000528/1995

IN THE COURT OF APPEAL

1995, No. 528
(Criminal)

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Coram : Hon Yang, C.J., Power, V.-P. and Ching, J.A.

Date of Hearing : 27 February 1996

Date of Judgment : 27 February 1996

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the court.

2. The applicant was indicted for the murder of a Chinese lady called Chan Wai Man on 14 November 1994. His plea of guilty to manslaughter was not accepted and the trial proceeded according to the indictment. He was convicted after trial of murder. He now appeals against his conviction.

3. The prosecution case was based mainly on the applicant's cautioned statement and a video tape showing the reconstruction by the applicant of how he had killed the deceased, i.e. by sitting astride the deceased's body with both hands bearing down her neck and strangling her.

4. It is not in dispute that the applicant killed the lady by putting his hands around her neck and squeezing until she could no longer breathe. The issue was one of provocation. There was also evidence, according to the applicant, that he had consumed alcohol and he might have been intoxicated at the time of the killing.

5. The applicant and the deceased had been lovers and lived together in Cheung Chau. The deceased then developed a close relationship with another man called Ah Fung because she thought he would be a "better provider" than the applicant. She had spent the night of the 13th and the 14th November with Ah Fung and they had sexual intercourse. At about 11:30 pm on the 14th, the applicant and the deceased met, he having consumed half a bottle of brandy and two or three cans of "alcohol beverages". They then went home together and had a discussion about their relationship. She promised "to get accustomed" to him in two weeks before deciding what she wished to do. They had sexual intercourse.

6. In the applicant's own words recorded in his cautioned statement:

" At that time, I decided to resolve the matter as soon as possible and again discussed with CHAN Wai-man. However, at that time, CHAN Wai-man was very agitated and said that CHAN Wai-man felt that Ah Fung brought to CHAN Wai-man much better conditions than I. I also explained the reason to CHAN Wai-man. At that time, CHAN Wai-man blurted out that within the two days, she had had a relationship with Ah Fung. At that time I was very worked up and used both hands to throttle CHAN Wai-man on the neck for a time of about 10 minutes to 15 minutes until CHAN Wai-man did not move. I stopped. I was very scared."

7. Later, at about 9:00 am the following morning the applicant telephoned the Social Welfare Department and sought assistance. He spoke to a Mr Tam and told him what he had done but was not believed. At some time after 11:00 am, he telephoned the Cheung Chau Police Station and was told to inform the police station at once. He then surrendered himself to the police.

8. Four specific grounds of appeal have been advanced in Counsel's Perfected Grounds of Appeal, together with a general ground that the verdict was unsafe and unsatisfactory or, alternatively, there was a lurking doubt as to the correctness of the jury's verdict.

9. At the hearing before us, counsel for the applicant argued two main points in the Grounds of Appeal. The first relates to a passage in the summing up where the judge said this:

"If the words spoken (in my own words, the information given by the deceased to the applicant that she had had a sexual relationship with Ah Fung) you find you are sure they did occur - did it cause in the accused a sudden and temporary loss of self control? And if so, would that conduct have caused a reasonable person to lose his self-control and behave as the accused behaved?"

10. It is argued on behalf of the applicant that here, the word "sure" and the word "would" used in the passage gave rise to a clear possibility of misunderstanding on the part of the jury that, perhaps, the burden of proving the lack of sudden and temporary loss of self-control rested with the defence. It was therefore a misdirection which could give rise to the jury's thinking that there was indeed a burden of proof on the defence.

11. The case of Abraham (1973) 57 Cr.App.R. 799 was cited to us and in particular we are referred to the judgment of Lord Justice Edmund Davies (at pp. 804-805) where words of a similar import to that used by the learned trial judge in our case were used. There, the judgment also considered the possibility of the judge having misled the jury in the same way as in the case before us.

12. In our view, the error made by the judge here is of such a nature that it renders the verdict in this case unsafe and unsatisfactory. But before we close, we must deal also with the second point raised in argument this morning, and that is that the judge erred in another passage in his summing up where he spoke of a sudden and quick loss of temper. He said:

" Now, provocation is a little bit complicated. Provocation is some act or series of acts done and/or words spoken which cause in the accused a sudden and temporary loss of self-control. That is the first part of it. So, it could be acts done or it could be words spoken or it could be a combination of both which cause in the accused a sudden - so it has to be quick, it must overcome him, sudden and temporary, it cannot continue on, it must just be for the time of that loss of self-control - a sudden and temporary loss of self-control which would cause a reasonable person to lose his self-control and behave as the accused behaved."

13. It is counsel's complaint that this passage might confuse the jury in the way indicated by a question asked by jury after the close of the summing up, indicating that the jury did not quite understand whether there was a difference between the words "sudden" and "quick", and what in fact were the necessary ingredients of provocation.

14. It is perhaps unfortunate that the word "quick" should have found its way into the direction on provocation. In the present case, the word was otiose as, in the light of the evidence, it did no harm.

15. We do not think there is anything of substance in counsel's second point. No harm was done. The applicant was not prejudiced by the words used. That point is therefore rejected.

16. There is, however, one further matter which we ought to refer to. In his summing up the judge went on to say that the provocation must dissipate quickly after the act of killing. This is not an ingredient of provocation. We think it unnecessary and indeed incorrect for the judge to have said this.

17. As we have said earlier, on the basis of counsel's first point, we are of the view that the verdict of guilty is unsafe and unsatisfactory, we allow the appeal, quash the conviction and substitute therefor a verdict of manslaughter. We shall now hear the question as to sentence.

18. Having heard counsel, we take into consideration R. v. Lau Puk Yu, Criminal Appeal No. 402 of 1993 (unreported) and the applicant's initial plea of guilty to manslaughter, we impose a sentence of seven years' imprisonment.

Representation:

Mr Andrew Macrae (D.L.A.) for Applicant

Mr I C McWalters of the Attorney General's Chambers for Crown/Respondent