HKSAR v. Fung Pak Cheung

CACC 105/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL 

criminal APPEAL NO. 105 OF 2006

(ON APPEAL FROM HCCC NO. 2 of 2005)

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BETWEEN

Before:  Hon Stuart-Moore VP, Yeung JA and Beeson J in Court

Date of Hearing:  28 February 2007

Date of Judgment:  28 February 2007

Date of Handing Down Reasons for Judgment: 8 March 2007

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reasons for judgment

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Hon Yeung JA (giving the reasons for the judgment of the Court):

Introductiion

1.The applicant – Fung Pak-cheung was employed as a security inspector by Centurion Facility Company Limited (“Centurion”) and was, since 29^th August 2000, posted to Kornhill, a residential estate in Quarry Bay, Hong Kong.

2.The applicant tendered his resignation from Centurion on 7^th October 2000 and did not return to duty. Centurion issued a dismissal notice and asked the applicant to return his uniform. However, the applicant never did.

3.Ms Moon Hye Ah (“the deceased”), a single Korean woman residing alone at Room 411 4^th Floor Block R Kornhill (“the flat”), was killed with a knife outside the flat on 19 October 2000.

4.The police found contact evidence between the applicant and the flat. A paper sheath used to wrap the knife that killed the deceased bore the applicant’s fingerprints. The police also seized, from the scene, buttons from a security guard uniform shirt issued by Centurion.

5.The applicant was arrested at the Lowu border on 7 October 2004 upon his return from the Mainland. The applicant said he did not mean to kill the deceased.

6.The applicant was charged with murdering the deceased and appeared before Pang J sitting with a jury. The applicant was unanimously convicted of murder and sentenced to life imprisonment. He sought leave to appeal against conviction. We dismissed his application and these are the reasons.

The Issue

7.The applicant admitted to have killed the deceased unlawfully and he had in fact pleaded guilty to manslaughter. His defence was that he had no intention to kill the deceased or to do her serious bodily injury, and that her death was the result of an accident.

The Prosecution Evidence

8.It was agreed that the deceased suffered multiple laceration injuries caused by a knife. In particular, there were an 8 cm long and 3 cm maximum depth cut at the outer aspect of the right elbow, with part of the underlying bone chipped off, and an 16 cm long and up to 8 cm deep cut at the inner front middle part of the left thigh, severing the left femoral artery and vein, which was the main cause of death. There were also an oblique cut wound about 11 cm long and 2 cm deep and a superficial cut wound of about 3 cm long on the left shin.

9.There was the evidence of a female voice yelling and then screaming in pain in the evening of 19^th of October 2000 shortly before the deceased’s body was found lying in a pool of blood.

10.The applicant was interviewed twice after his arrest when he described to the police how the deceased was killed.

11.The applicant said he had a previous dispute with the deceased when she complained about his poor standard of English and his manner, resulting in his losing his job.

12.The applicant said that on the day in question, he went to look for the deceased for some money and due to a communication failure, he took out a knife to scare the deceased. However, the deceased charged at him to grab his knife, and when he pulled the knife backwards, it “grazed” her twice.

13.The applicant said the following in his first interview:

“…I told her that because of her complaint, or rather because of her unreasonable complaint I had lost my job and that I wanted her, wanted her, hoped that she would give me some money as compensation”, “The deceased spoke in anger, I did not know what she said because she was speaking in English, I did not understand, she just kept saying ‘no, no, no’”, “And then I took out the knife intending to scare her and then she charged at me to grab my knife so I pulled, pulled back, recoiled and pulled the knife. The two of us had a light struggle and sustained injuries. Later I saw that the moment I pulled, I pulled the knife, I grazed her and she bled. I swiftly opened the door and went away by myself”, “…I had no money at all and had not yet found a job, well, only then did I intend to scare her and get some money. That’s why I then went to her flat, went to the flat, and by mistake, ah, gave her--gave her a grazing with the knife by mistake during the struggle with her. Perhaps she was killed in this way.”

14.In his second interview, the applicant again emphasized that he had no intention of killing the deceased or causing her any serious injuries. He said:

“The two of us were struggling there. Firstly, I was also afraid she would take away the knife. Secondly, I—she also seized me, also seized my top, well, also scratched. Well, therefore on that day both of my arms were abraded”, “My knife was – I did not actually – I did not point the knife at her, that is I was afraid that firstly I did not intend to injure her because for example it is very simple, in fact, I did it in such a way, it’s wrong to enter the flat. However, actually, I had no intention, no intention, no intention to injure he”, “Yes for this incident of that day I do not know that I was wrong. It’s because in going up there at the very beginning I just thought in my mind that it was because of her that I lost my job. I had intended to ask her for some money, be it much or less. Well, both were very angry, that is having a quarrel. Under the circumstances I was in rage, well, then I drew the knife with intent to scare her. During the struggle between the two parties I wounded her. I was very scared, very scared. Then I rushed down the staircase and then ran away. Therefore I now feel very remorseful. I have nothing else to say to you, sir, Thank you, Ah Sir.”

Defence Case

15.The applicant did not give or call any evidence at trial. He relied on what he said to the police in the interviews. It was emphasized on his behalf that he had no intention to kill or seriously wound the deceased.

The Judge’s Summing Up

16.The judge, in his summing up to jury, firstly identified the sole issue in the case. The judge then emphasized the nature of the deceased’s injuries, which appeared not to be consistent with the applicant’s explanation that the knife only “grazed” her during the struggle. The judge further told the jury:

“If it was an accident, members of the jury, and the deceased was cut or wounded or injured as a result, then the natural reaction of a person confronting with the incident would be to summons for assistance, whether from the police or by knocking at the neighbour’s door. The defendant in this case, however, chose to exit by the rear staircase. He changed out of his bloodstained uniform, discarded the knife, and then went to Sheung Shui. That was what the defendant said. Bear this in mind. It may be of assistance to you when you deliberate on the issues.”

17.Having emphasized the applicant’s explanation in his interviews, the judge proceeded to give the jury the following “lies direction”:

“Please look at the answers that the defendant gave to the police carefully when you look at the tape. After going through them, you may come to the conclusion that the defendant was telling the truth, or that he may be telling you the truth, that he did not intend to kill or cause really serious injuries to the deceased. If it is the case that the defendant was telling the truth, or maybe telling the truth, then the defendant must be acquitted of murder.

However, if you find that the defendant had lied in parts of his answers to the police, or even in all of his answers to the police, then you must bear this in mind. The mere fact that a defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example, to bolster a true defence, to protect someone else, or to conceal disgraceful conduct of his, short of the commission of the offence, or simply out of panic or confusion, or because he believed that the true version of the incident is unlikely to be believed. So a defendant would make up a story which he thinks may be believed or sound convincing to the police. If you think that there is or may be some innocent explanation for his lies, then you should take no notice of them. Simply disregard the evidence which you find untruthful and concentrates on the evidence which the prosecution has satisfied you is true and on that part of the defence evidence which you find to be true or may be true”.

Grounds of Appeal

18.Mr Duncan Percy, on behalf of the applicant, basically put forward two grounds of appeal, one relating to the “lies direction” given by the judge and the other relating to the absence of a “flight direction”. He suggested that in all the circumstances of the case and in the light of what he described as an unfair and unbalanced summing up, the conviction was unsafe and unsatisfactory.

19.Mr Percy suggested that the judge, having alerted the jury to the applicant’s “unnatural” reaction after allegedly accidentally injuring the deceased, namely, instead of summoning help, the applicant chose to exit by the rear staircase and then went to Sheung Shui, should have given the jury a “flight direction” in order to alleviate the risk that the jury might conclude that what the applicant did was a flight by a man with a guilty mind.

20.Mr Percy submitted that there was no need for the judge to give a “lies direction” as “there was no danger of improper use by the jury of any lie told by the accused and there is no risk of a miscarriage of justice”. Alternatively, Mr Percy further submitted, if there was such a need, the judge should have given a full “lies direction” to the effect that “the lie could not strengthen the prosecution case or undermine the defence unless they are sure there is no innocent explanation for his lies”.

21.Mr Percy emphasized that a “flight direction” should also be given if it was right to give a “lies direction” as they were in the same category.

22.In any event, Mr Percy argued that the judge’s repeated reference to the word “grazed”, as used by the applicant in his interviews, indicated that the judge was expressing doubt about the applicant’s explanation. He further argued that the judge had failed to sum up the defence case adequately to the jury.

Discussion

23.It is true that in the great majority of cases where the prosecution contend that the accused is telling lies in the witness box, a direction on lies is inappropriate and is unnecessary.

24.However, in the present case, the explanation, given by the applicant in his interviews as to how the deceased was killed, appeared to be inconsistent with the agreed evidence of the pathologist. The injuries to the deceased’s right elbow and left thigh could hardly have been the result of the “grazing” by a knife as suggested by the applicant. It was highly likely that the jury would conclude that the applicant’s explanation was not true.

25.Without a “lies direction”, there was indeed a danger of an improper use by the jury of the applicant’s lies and therefore a risk of a miscarriage of justice.

26.In our view, it was entirely proper for the judge to give to the jury a “lies direction”.

27.The judge told the jury that if there was or might be some innocent explanation for the applicant’s lies, they should take no notice of them and then simply concentrate on the prosecution evidence and that part of the defence case which they found to be true or might be true.

28.The issue for the jury to decide in the case was a very narrow one, namely at the time of killing the deceased, did the applicant intend to kill her or cause her serious bodily injury.

29.The judge had emphasized to the jury that if they did not accept the applicant’s explanation, they would still have to be satisfied beyond a reasonable doubt, on the prosecution’s evidence, that the applicant had committed the offence of murder.

30.In our view, the “lies direction” given by the judge was proper and adequate.

31.In R v Chan Kwok Keung & Another [1990] 1 HKLR 359, where the evidence of flight and concealment was used as potential corroboration of accomplice evidence, the Privy Council, in an opinion delivered by Lord Ackner, said at p 363:

“In order for flight to be capable of amounting to an admission of guilt there must be some evidence which establishes a nexus between the conduct of the accused, his flight or concealment and the offence in question…”

32.What a jury make of evidence of flight is very much a matter of common sense. In a case where the accused denies the conduct complained of and to avoid the possibility that the jury will make use of evidence of flight as evidence of guilt when there is the possibility of an innocent explanation for such flight, the jury must be reminded that they must not draw an inference of guilt against the accused based on the “flight” unless it is the only reasonable inference to be drawn, and that if there is any innocent reason for the accused’s conduct, they must take no notice of it.

33.However, how a judge should approach the question of “flight” in each case must depend on its own facts.

34.In the present case, there was a clear nexus between the applicant’s conduct as alleged by the prosecution and his flight to the Mainland. There was no dispute that the applicant had unlawfully killed the deceased and he had pleaded guilty to the charge of manslaughter. Indeed, there could be no dispute that the only reason for his flight to the Mainland was because he had unlawfully killed the deceased.

35.The “lies direction” given by the judge related to the applicant’s intention when he committed the act of unlawful killing, the only issue at trial, whereas the proposed “flight direction” could only be relevant to the indisputable fact that the applicant fled because of his act of unlawful killing.  The logical foundation for giving the “lies direction” and not the “flight direction” to the jury was obvious.

36.Counsel at trial did not consider it necessary for the judge to give a “flight direction”.

37.The prosecution did not use flight to strengthen any inference of guilt. There was no such need when the applicant had admitted killing the deceased unlawfully and when the only issue was whether the applicant intended to kill her or to cause her serious bodily harm.

38.In such circumstances, a direction on “flight” would not be necessary as long as the jury was properly reminded of the defence case.

39.The judge had repeated, almost word for word, what the applicant said in his interviews as to how, according to him, the deceased was killed. We were satisfied that the judge had properly laid before the jury the applicant’s defence.

40.The judge did use the word “grazed” repeatedly. However, he was just emphasizing the defence case as revealed in the applicant’s records of interview, by using the applicant’s own words. The judge could have hardly done anything else when the applicant chose not to give or call any evidence in his defence.

41.We agreed with the submission of Mr Zervos SC, counsel for the respondent, that the judge was entitled to do so.

42.We rejected the suggestion that the judge’s summing up was in any way unreasonable, unfair or unbalanced.

43.The issue for the jury was a narrow one. The applicant’s defence was not consistent with the medical evidence relating to the deceased’s injuries.

44.It is abundantly clear that the jury rejected the applicant’s explanation in his records of interview as to how he killed the deceased and that they were driven to the only sensible and reasonable conclusion open to them on the evidence.

45.We did not find the conviction against the applicant in any way unsafe or unsatisfactory. We therefore dismissed his application for leave to appeal against conviction.

Mr Kevin P. Zervos, SC, SADPP leading Ms. Teresa Kam, GC for the Respondent.

Mr Duncan Percy, instructed by Messrs Peter KH Wong & Co for the Applicant.