The Queen v. Lam Hon Wing

IN THE COURT OF APPEAL

1987 No. 87
(Criminal)

BETWEEN

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Coram: Hon. Yang, Ag. C.J., Power J.A. & Penlington, J.

Date of hearing: 11th August 1987

Date of delivery of judgment: 11th August, 1987

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J U D G M E N T

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1. On the 11th of August we dismissed this application for leave to appeal against conviction on a charge of murder. We said we would give full reasons later in writing. This we now do.

Background

2. This is a tragic case. The applicant had a girl friend, the deceased Kwok Yee-man, with whom had a keen intimate on many occasions. She had two abortions as a result of this relationship. It would seem clear that the deceased's family did -not approve of the relationship and possibly because of this she would not agree to his proposal of marriage.

3. On the 4th of August 1986 the applicant and the deceased went together to Cheung Sha, in Lantau, where they rented a holiday flat for the weekend from Mr. Lam Pak-loi, Mr. Lam saw them both later that day going swimming and later the applicant returning with food. He saw him also on the 5th, again apparently with food.

4. On the 6th, the day the applicant and the deceased were to check-out. Mr. Lam went to the flat and found the applicant who seemed to be very drowsy. He thought he had taken drugs.

5. Mr. Lam entered the flat and was told by the applicant that Miss Kwok was in the bedroom and he went there himself. When he failed to emerge Mr. Lam decided something was wrong and reported to the Police. When they came they found Miss Kwok's body in the bedroom. According to the medical evidence she had been strangled on the evening of the 5th, and there was no dispute that she had been killed by the applicant.

6. The defence raised was that the applicant had killed the deceased in pursuance of a suicide pact and he: relied on Section 5 of the Homicide Ordinance Cap. 339 which provides that in such an event the Homicide is manslaughter, not murder. The onus, however, lies on an accused who raises the defence to prove it on a balance of probabilities.

7. The Crown, in addition to Mr. Lam, called one witness in particular to rebut the suggestion that the applicant had killed the deceased pursuant to a suicide pact. Mr. Suen Chi-yeung occupied a lower flat in the same building that weekend. He said that at about 11 p.m. on the 5th, the day the deceased was killed, the applicant came to his flat and offered to give him some noodles which he did not want to take back to Hong Kong. Some 15 minutes later the applicant phoned Mr. Suen and asked him if he would also like some oil and salt. He then came down to Mr. Suen's flat again and had a conversation with him. Mr. Suen said the applicant seemed quite normal and indeed appeared rather light-hearted. It was the applicant's case, as set out in a cautioned statement had made after his arrest and admitted by consent that the agreement between himself and the deceased was that they would each take an over-dose of sleeping tablets. That scheme went wrong in that the deceased in fact asked him to strangle her, which he did. He then took a large number of tablets.

8. It was the Crown’s case that if Mr. Lam and Mr. Suen were reliable witnesses, and there seems no reason why they should lie, the deceased did not take the tablets after killing the deceased but on the contrary seemed perfectly normal. There was no doubt that when Mr Lam came to the flat at midday on the 6th, the applicant had taken some drugs but long after he had killed Miss Kwok. There was no indication at all at 11 p.m. on the 5th that he had taken any drugs.

9. The applicant gave evidence and said that because the deceased's family was so opposed to him seeing their daughter, let alone marrying her, he and the deceased went to Lantau taking with them a very large quantity of sleeping pills with the idea that they would each take an over-dose of the pills and die together. At about 6 p.m. on the 5th September, the applicant took about 50 pills. He then lay on the bed and the deceased came to him and asked him to "grab" her round the neck. Although by this stage under the influence of the pills he did so and eventually she fainted. He then lost consciousness and could not remember any more. In particular he could not remember his two visits to Mr. Suen later that evening when he seemed perfectly normal. He could not in fact remember anything else until he recovered consciousness in Lantau hospital. This evidence differed from his statement in several respects, particularly in that he said he had taken the sleeping pills before he strangled the deceased and was under their influence when he did so.

Grounds of appeal

10. There were two grounds of appeal relied on by Mr. Paul Dinan counsel for the applicant. The first was that when cross-examined by Crown Counsel the applicant was, on repeated occasions, asked to say whether other witnesses had lied where their evidence was contrary to his. This put him in a very difficult position and was unfair. Those other witnesses may have simply been mistaken but in any event the form of cross-examination was such that the applicant, clearly a person of limited intellect, was not able to do himself justice.

11. Examples of this line of cross-examination were as follows :-

"Q :   Do you suggest that when he (Mr. Kwok, the deceased's father) said he would have approved your marriage he was lying?

A :     I thought Mr. Kwok would not approve this marriage because when I visited his house he did not like that, he even did not like that.

Q :     Mr. Lam, you heard Mr. Kwok say that he would have approved of the marriage, did you not?

A :     I heard that.

Q :     When you heard that, when you heard him say that, are you suggesting that he was lying when he said so?

A :     Possibly when he was testifying in this courtroom he was saying that he would approve this marriage, but when I was asking him outside this courtroom he would probably say no to me. I don’t know, anyway."

“Q :   You didn't. You heard the evidence of her father and her sister who told us about arguments that they overheard between the two of you, did you hear that evidence?

A :     I heard it.

Q :     I will ask you one at a time about those witnesses. Would you suggest that her father was lying when he told us that he overheard arguments to that effect, was he or not?

A :     Possibly we were arguing something else, over some trivial matters, not because of that subject, and that's why they misunderstood our arguments.

Q :     When her sister tells this court on her own that she heard arguments to this effect that her sister, the deceased, wanted to leave you, was she lying?

A :     I don't know if her sister made the mistake or what, or maybe misheard something, I don't know.

Q :     You don't know, She tells us what she heard, do you suggest that she was lying about that?

A :     I dare not say that she was lying in court.

Q :     Why not? It's your evidence that you never had an argument about that?

A :     Because I can't say for sure if her sister had misunderstood our arguments.

Q :     Mr. Lam, it's not a question of misunderstanding, is it? She says she heard it, and if you say no such argument ever took place she's either mistaken or lying, now do you suggest she's lying?

A :     I don't know if she was mistaken about it.

Q :     She made the same mistake, did she, as her father?

A :     Possibly.

Q :     On your evidence there's no doubt about it, is there, they are both mistaken and they both made the same mistake, is that right?

A :     That's right."

"Q :   It's not a question of what he was writing down, I asked you why did you lie to the police?

A :     I did not lie to the police. I said something to the police officer, but he did not record it down exactly what I was telling him.

Q :     I see. So if the policeman tells us that you said those words I have just read out, is he lying, too?

A :     That's right, he was lying.

"Q :   You told the police that you wanted her to die first, didn't you?

A :     No.

Q :     That's a lie by the police, is it?

A :     I didn't say that to the police.

Q :     Well, if the policeman says you did, he's lying, is he?

A :     That's right.

Q :     Mr. Lam, was any of the witnesses called against you that you were prepared to accept as having spoken the truth?

A :     When the police officer was taking the statement from me he didn't write down what I was telling him.

Q :     Would you answer the question, please?”

"Court :       I think the question is too broad, Hr. Pallaras.

Mr. Pallaras :         As your Lordship pleases?"

12. In R v. Baldwin[1], Hewart L.C.J. said this as to the purpose of cross-examination.

"There is a further matter involved here which goes far beyond the present case, and, it may be, beyond criminal cases. One so often hears questions put to witnesses by counsel which are really of the nature of an invitation to an argument. You have, for instance, such questions as this: ‘I suggest to you that …..’ or 'Is your evidence to be taken as suggesting that ….. ?’ If the witness were a prudent person he would say, with the highest degree of politeness: "What you suggest is no business of mine. I am not here to make any suggestions at all. I am here only to answer relevant questions. What the conclusions to be drawn from my answers are is not for me, and as for suggestions, I venture to leave those to others.” An answer of that kind, no doubt, requires a good deal of sense and self-restraint and experience, and the mischief of it is, if made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the conclusion (and it might be true) that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as a rule, a professional conductor of argument, and it is not right that the wits of the one should: be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact."

While R v. Baldwin is probably a high-water mark case we consider that it is still good law and questions in the form used here should not have been put to .the witness. They achieve nothing, expect perhaps to engender some sympathy for a defendant who is unable by reason of lack of experience, and here of intelligence, to return the proper answer of "I don’t know if he is lying or not. I can only tell you what I myself know."

13. While we consider these questions should not have been put, we do not, however, consider that they constituted such an irregularity as requires our intervention. There was no objection to them by counsel for the applicant, although we appreciate Mr. Dinan's point that constant interruption of cross-examination by Crown Counsel can be counter-productive. Taking the whole of the cross-examination of the applicant we do not consider these questions were such as to deprive the applicant of putting his evidence properly before the jury. We re-iterate however that they should not have been put in the way they were.

14. The second ground of appeal is that the Crown relied very extensively on what it alleged were the applicant's lies in support of its case that the deceased was not killed as the result of a suicide pact. Mr. Dinan relies on the dicta of Lord Devlin in Broadhurst v. The Queen[2], he said :-

“It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural, tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But, if upon the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

15. Here the trial judge did not give a direction along those lines but the circumstances here were very different to Broadhurst, or indeed the great majority of criminal trials. Here there was no dispute that the applicant killed the deceased. The only question was whether or not he did so pursuant to a suicide pact and the onus of proving that, unlike a defence for instance or provocation, lay on the applicant.

16. The danger to be guarded against and for which a Broadhurst direction is required is for a jury to say "we think the defendant is lying, therefore he must be guilty". Here the whole defence depended on the credibility of the applicant - his was the only evidence in support of the suicide pact. The burden of proof lay on the defence and the proposition in Broadhurst that “a case in which an accused gives untruthful evidence is not different to one in which he gives no evidence at all" can't apply to the position here. If the applicant had not given evidence he must have been found guilty.

17. We do not consider, in the circumstances of this case, that a Broadhurst style direction on lies was required or would have been helpful?

18. That ground of appeal must also fail and the application for leave to appeal against conviction is dismissed.

Mr. Paul Dinan (D.L.A.) for applicant

A.A. Bruce, S.C.C. for Respondent

[1]  1925, 18 C.A.R. 175

[2]  (1964) A.C. 441 at 457