The Queen v. Ho Wing Sum

IN THE COURT OF APPEAL

1986 No. 536
(Criminal)

BETWEEN:

THE QUEEN

AND

HO WING-SUM

Coram: Roberts, C.J., Silke, J.A. Power, J.

Date of hearing: 30th Apri1 1987

Date of Handing down of Judgment: 8th May, 1987

_______________

JUDGMENT

_______________

Roberts, C.J.

1. Ho Wing-sum (“the defendant”) appealed against his conviction for the murder of TANG Tung-shing (“Tang”) on or about 16th May 1986.

2. At the conclusion of the hearing before us, we dismissed the appeal and stated that we would give our reasons later, which we now do.

Background

3. The defendant and a partner, named YAH Chun-fai, together ran a business which specialized in arranging loans, for customers who were unable to do this for themselves, on a commission basis.

4. The business had an office in Shui Wah Building, in which Tang’s body was found in a toilet early on the morning of 17th May.

5. According to the defendant, Tang had borrowed $5,000 from him in April, but had failed to spite of repay it, in spite of repeated demands by the defendant.

6. On 15th May, an arrangement was made between the victim and the defendant to meet at the office in Shui Wah building at about eleven O’clock. It is not in dispute that Tang went to meet the defendant and that, as a result of an altercation which broke out between them, Tang was killed by the defendant, who inflicted upon him a number of stab wounds with a pair of scissors. The only direct evidence of what took place between them is to be found in the testimony of the defendant and in the cautioned statements which he made to the police and which were admitted as voluntary.

7. The solo issue of importance for the jury to decide was whether or not the Crown had disproved, beyond reasonable doubt, that the defendant had acted in self-defence.

8. Counsel for the defendant argued various grounds of appeal, though we shall only deal with those which appear to us to merit serious consideration.

9. Before passing to these, we should note that some criticism was made in the grounds of appeal of' the manner in which counsel conducted the defence at the trial. This criticism was not pursued before us. In our view, there is nothing in the record to suggest that any  criticism could fairly be made of counsel for the defendant, who conducted the case on behalf of his client with skill and good sense.

Issue of self-defence

10. Counsel placed most reliance on his submission that the trial judge had misdirected the jury in relation to the issue of self-defence, in that he had, on a number of occasions during his summing-up, referred to it as the defence of self-defence".

11. In Alan Abraham v. R.[1], Edmund Davies, L.J., delivering the judgment of the Court of Appeal, commented as follows -

“What accordingly is the drill, if that term may be used, which a trial judge should faithfully follow in dealing with such special pleas as self-defence? Surely it is this: give a clear, positive and unmistakeable general direction as to onus and standard of proof; then immediately follow it with a direction that in the circumstances of the particular case there is a special reason for having in mind how the onus and standard of proof applies and go on to deal in, for example; the present case with the issue of self-defence by telling the jury something on these lines: ‘Member of the jury, the general direction which I have just given to you in relation to onus and standard of proof has a particularly important operation in the circumstances of the present case. Here the accused has raised the issue that he acted in self-defence. A person who acts reasonably in self-defence commits no unlawful act. By his plea of self-defence the accused is raising in a special form the plea of Not Guilty. Since it is for the Crown to show that the plea of Not Guilty is unacceptable, so the Crown must convince you beyond reasonable doubt that self-defence has no basis in the present case.’ Having done that the trial judge can then proceed to deal with the facts of the particular case. The last thing I seek to do is to lend support to the misconception that any prescribed words have to be  used in giving the direction (see Palmer v. R. (1971) 55 Cr. App. R. 223, P.C.). But by adopting some such words as those I have suggested he eliminates, one would have thought, any possible complaint of the kind which, in our judgment, is validly made against the summing-up in the present case.”

12. The above quotation illustrates well the somewhat artificial use of language which is recommended in circumstances in which the defendant has asserted that he acted in self-defence. Surely the average juryman would be likely to describe this as the defence of self-defence.

13. The compelling reason for not describing it as a “defence” is that this might mislead the jury into thinking that, because it is a defence, a burden lies on the defendant to establish it.

14. The correct approach to a direction on the issue of self-defence was set out by Winn, L.J. in Wheeler[2] -

“The Court desires to say, and this is a convenient moment to say it for general application, that wherever there has been a killing, or indeed the infliction of violence not proving fatal, in circumstances where the defendant puts forward a justification such as self-defence, such as provocation, such as resistance to a violent felony, it is very important and indeed quite essential that the jury should understand, and that the matter should be so put before them that there is no danger of their failing to understand, that none of those issues of justification are properly to be regarded as defences: unfortunately, there is sometimes a regrettable habit of referring, for example, to the defence of self-defence. In particular, where a judge does slip into the error or quasi-error of referring to such explanations as defences, it is particularly important that he should use language which suffices to make it clear to the jury that they are not defences in respect of which any onus rests upon the accused, but are matters which the prosecution must disprove asan essential part of their case before a verdict of Guilty is justified.”

15. In our view, the judge, having used the word "defence", nevertheless did use the kind of language advised by Winn, L.J., in the following passage, at p.229 of the record -

"There is no burden on the defendant to establish the defence of self-defence. The burden is on the prosecution to prove that the defendant was not acting in self-defence when he inflicted fatal injuries. If at the end of the day you think thedefendant killed the deceased when acting in self-defence or that he might have killed him whilst acting in self-defence, then you will acquit him entirely of this charge.”

16. Later passages in the summing-up were to the same effect, e.g. -

(a) “ …. all these factors, says the Crown, are matters far you to consider in determining whether it has been proved that the defendant did not act in self-defence”;

(b) “It is upon the prosecution to prove that what the defendant did was not done in self-defence.”

(c) “Merely for the purpose of my summing-up, shall I assume that you find self-defence has been negatived by the Crown.”

17. In summary, we cannot see how the jury can have been misled by the reference of the judge to “the defence of self-defence” into imagining that any burden lay upon the defendant to establish it.

18. Counsel also sought to rely on that part of the above passage from Abraham[3] -J in which it was suggested that, after there has been a direction as to the onus and standard of proof, this should immediately be followed by a direction as to the issue of self-defence.

19. We are not prepared to adopt this pronouncement, which was in any event not necessary to the decision in Abraham, as constituting a rule which should be followed.

Inadequascey of treatment of defence case

20. This ground was based on two complaints. The first was that the summing-up contained several references to the defendant’s “story”, it being suggested that the use of this word implied a disbelief on the part of the judge in the version of events given by the defendant.

21. The word “story” does appear on a number of occasions in the summing-up relation to the defendant’s evidence, but so do the words “version”, “evidence” and “case”. We do not consider that the word “story” implies any more than“version” or that it can reasonably be said to indicate a degree of disbelief by the judge of the testimony of the defendant.

22. The second criticism was that the judge failed to put the defence case fully. We see no substance in this. The defendant's version of events was clearly and fully explained to the jury.

The identification evidence of Mr. Koo

23. The Crown suggested as part of its case, that there had been two persons present at the time when Tang was killed. Had this been established, it would have gone some way to discredit the evidence of the defendant that he had been the only person present at the time of the killing and that he had acted in self-defence.

24. The Crown, in an attempt to show that there had been a degree of premeditation by the defendant, adduced three items of evidence -

(a) that the defendant had purchased a pair of scissors, of the kind which were said to have been responsible for the lethal – wounds, from a nearby shop earlier on the same evening - this was not disputed by the defendant.

(b) that another man was present with the defendant when he purchased the scissors, which he denied.

(c) that the defendant was seen leaving the buildingwhere Tang was killed shortly before the watchman found the body, in company with another man - this was denied by the defendant, who gave evidence that he left the building alone.

25. Mr. Koo, the watchman of the Shui Wah Building, identified the defendant, at an identification parade held on 22nd May, 1986, though on that occasion he was only asked to point out anybody whom he had seen in the building on the night of 16th/17th May.

26. Counsel for the defendant sought to persuade us that this identification was wholly unreliable, since the defendant might merely have been identifying somebody whom he had seen in the building at some time on the evening in question. This, by itself, might have had some force, were it not for Mr. Koo’s evidence that the person whom he identified at the parade (the defendant) was one of the two men whom he saw leaving the Shui Wah Building shortly before midnight.

27. The Judge directed the jury with great care as to the weight which they ought to give to the "coincidences", as he described them, that two men bought scissors earlier that evening and that two men were seen to leave the building later by the stairs.

28. He warned them that, if they did conclude that another person was present in the room, this might affect the defendant’s version of having to defend himself in the manner and to the extent that he did, adding -

"You are not obliged to take that view, members of the jury, but these are matters which are placed before you by the prosecution for your consideration.”

29. He ended by saying -

“If, however, on the consideration of all the evidence you find that you are satisfied that the defendant was not alone that night with the deceased, then you are perfectly entitled to ask yourselves why he has denied that fact and to view his testimony against that finding.”

Summary

30. On Tang’s body were a series of bruises on his forehead, lips and body, five serious stab wounds in the neck and chest and eight cut wounds, described by the pathologist as being of a “defensive nature”, on the hand and wrist. Any of the stab wounds could have caused death, which would have ensued within minutes.

31. The defendant himself, by contrast, when examined, was shown to have two abrasions on his chest.

32. The judge's direction as to the law of self-defence, was entirely correct. Having been so directed, it would have been surprising if the jury, on the facts put before them, had reached any conclusion other. than that which they did reach, namely, that the Crown had negatived the plea of self-defence put forward by the defendant.

Mr. N. Sarony (D.L.A.) for Appellant

Mr. F.C. Whitehouse, A.P.C.C. for Respondent/Crown Prosecutor

[1] [1973] 57 C.A.R. 799, 803

[2] [1967] 52 Cr. App. R. 28, 30

[3] [1973] 57 C.A.R. 799, 803