Chau Kam Cheung v. The Queen
|
CACC000565/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 565 OF 1971 -----------------
----------------- Coram: Huggins, Pickering, and Leonard, JJ. Date of Judgment: 26th October 1971 ----------------- JUDGMENT ----------------- Huggins, J.: 1. On his trial before a judge sitting with a jury the Appellant was convicted of murder. It is sufficient to state the circumstances in a very few words. A girl aged 8 years was missing from her home. The Appellant was then living at her home but shortly afterwards left his job in a plastics factory and went to live and work at a building site in Shatin. After the child's disappearance was reported an anonymous telephone call was received and as a result the police sought the Appellant. When he was found he started to run away but was stopped and arrested and he later told the police he could lead them to the child. He took them to a warehouse connected with the plastics factory in which he had previously worked. The dead body of the child was there found in a box. She had been strangled and there was clear evidence of (to use a neutral expression) sexual interference. Under caution the Appellant made statements which connected him with the killing and, as was to be expected, he did not at his trial deny the killing or that it was unlawful: the defence was diminished responsibility. 2. Three points have been taken on the appeal. First it is said that on at least five occasions the learned judge suggested to the jury that there was no question but that the girl had been "raped" and the Notice of Appeal alleged that the judge "misdirected the jury with regard to the evidence required to establish a charge of rape". Since there was no charge of rape in the indictment what in effect was being contended was that the repeated references to rape were, in the absence of a proper direction as to the nature of that offence, highly prejudicial to the Appellant. It is true that there was no evidence whether the sexual interference took place before or after the child's death, but we cannot believe that it would have made any difference to the jury's verdict if they had known the interference took place after the death. Nor would it have made the least difference had the jury been directed that penetration was an essential ingredient of rape. The evidence pointed in the clearest possible way to there having been some form of sexual interference and since that interference was of a kind which resulted in the implantation of semen in the child's vagina we do not think that the use of the term "rape" to describe it can possibly have had any effect upon the verdict of the jury. Even if the use of this term amounted in law to a misdirection (and we think that it did not) we would unhesitatingly have applied the proviso to s.81(2) of the Criminal Procedure Ordinance. 3. In the course of his summing-up the learned judge said 'that the evidence that the accused had drunk so much as to be incapable of forming a specific intent to kill ...... comes only from his own mouth in the dock". In fact that evidence did come only from the Accused's own mouth but not only in the dock: he had made two statements to the police in which he asserted that he had drunk excessively and in one of those statements he said that he "did not know how (he) strangled her to death". The gravamen of the complaint is that the learned judge not only failed to emphasise that the Appellant had told a consistent story from the beginning but by using the word "only" masked the fact that the Appellant had told a consistent story throughout. The jury had before them the two statements and one of them had been expressly referred to by the judge a moment earlier. Counsel for the Crown concedes that there was an error but we think he is right when he submits that it cannot have misled the jury. 4. The third point taken by counsel on behalf of the Appellant has, if valid, greater substance: he contends that the learned judge did not leave the issue of diminished responsibility correctly to the jury but led them to understand that this was an issue to be determined solely upon the medical evidence. There is no doubt that if the learned judge did so direct the jury it was a misdirection. We accept the dictum in Reg. v. Byrne(1):
In the present case the learned judge is reported as saying:
(the punctuation of the first part of this transcript is manifestly wrong). It is submitted that the passage cited must have given the impression that, the medical evidence being inconclusive, that was an end of the defence of diminished responsibility. If the passage stood on its own that might well be so but the learned judge had previously read the substance of a passage from the summing-up of Finnemore J. in Reg. v. Simcox which was approved both when that case came before the Court of Criminal Appeal (The Times (1964) February 25) and again in Reg. v. Lloyd(2):
That made it clear that it was not only what the doctor said that had to be considered but "the whole story". Doctor Wong had indeed agreed that the Appellant's drinking might conceivably have brought on an epileptic fit but he repeatedly expressed the view that it was "unlikely" that the Appellant was suffering from diminished responsibility. Bearing in mind that the onus of proof was on the Appellant in relation to this issue we would have been surprised had the jury, in the light of that medical evidence, thought that the remaining evidence established on a balance of probabilities that the Appellant was suffering from diminished responsibility at the time of the offence. Be that as it may, they were told to look at the whole of the evidence in a broad common-sense way and we think that was all that was required. 5. For these reasons the appeal must be dismissed. Representation: Mr. Eddis for Appellant Mr. Winter for Respondent (1) 1960 2 Q.B. 396, 403. (2) 1967 1 Q.B. 175. |