HKSAR v. Lai Tuin Hing

CACC237/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 237 OF 2006

(ON APPEAL FROM HCCC 267 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and McMahon J in Court

Date of Hearing : 15 August 2007

Date of Judgment : 15 August 2007

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J U D G M E N T

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McMahon J (giving the judgment of the Court) :

1.On 30 May 2006, the applicant was convicted after a trial before Lunn J and a jury of the murder of his daughter.

2.He now seeks leave to appeal against that conviction.

3.The prosecution case at trial was that the applicant, while he was alone with his daughter in their family flat in Kwai Chung, for some unknown reason had taken a knife and stabbed her a large number of times so that she bled to death.  He then set fire to the family flat in an attempt to cover up the offence.

4.Firemen went to the premises, extinguished the fire and found the partly burned body of the deceased.  They then notified the police.

5.The applicant was initially taken to Castle Peak Hospital’s Psychiatric Unit.  But after a thorough examination, he was found not to be suffering from any psychiatric disorder.

6.He was then discharged from hospital and arrested and cautioned by police.  He said then :

“

… ‘I don’t know why I suddenly went to the kitchen and took a knife that morning and don’t know why I killed my daughter.  Later I felt that there was a lot of smoke in the house.  My impression was that I seemed to have climbed out of the window and have then been rescued back into the house.  I don’t know why I killed my daughter.’”

He later participated in a video recorded interview with the police in which he said, in summary :

(a)	he did not have any idea about the knife, and that “if there were only two people in the flat it was him who killed the deceased”;
(b)	that only he and his daughter were at home;
(c)	that he did not know how the flat caught fire or when the fire started;
(d)	when the fire broke out, he was in the kitchen and he could not see anything as the smoke was very thick;
(e)	his head “roared inside as if the sky and the earth were spinning”;
(f)	he recognized the knife (found by the police in the flat) as his and “it was usually placed in the kitchen”;
(g)	he had tried his best to recollect but only had a vague memory of the incident.

7.Apart from these statements under caution, forensic evidence produced by the prosecution included the finding of the blood of the deceased on the applicant’s jeans and on a single slipper similar to ones owned by him which was found on the ground floor of the applicant’s block of flats under the applicant’s flat.  The applicant had been found by firemen sitting on a ledge outside the kitchen window of his burning flat directly above where the slipper was found. 

8.At trial the applicant did not give evidence or call any witness.

9.There are two matters we will deal with in this appeal.  Firstly, that advanced by the applicant in his own ground of appeal against conviction and, secondly, another matter Mr Arthur Luk, SC and David Leung, SADPP who appear for the respondent have brought to our attention.

10.The ground of appeal put forward by the applicant against his conviction is homemade.  Mr Haynes who appears on the instructions of the Director of Legal Aid to assist the court found himself not able to advance any grounds.  Essentially, the applicant argues that :

“	… the decision of this case was not reasonable and (deletion) so I am not satisfied with it and would like to lodge an appeal.”

11.The applicant therefore by this ground challenges the jury’s findings of fact.  His challenge is mounted as we understand on this basis : At trial it was suggested by the defence that the prosecution had not eliminated the possibility that a third person was present in the premises at the time of these events and had killed the deceased.  Counsel for the applicant pointed to the fact that no keys belonging to the deceased had been found either on her body or anywhere else in the premises.  This suggested that someone else had the use of the deceased’s keys.  She had told a work colleague before her death that she had a boyfriend, and whilst this was on its face hearsay evidence, it was adduced before the jury to establish that the police had available an avenue of investigation in this regard which they had not taken; i.e. that this boyfriend should have been interviewed or otherwise investigated by the police and was not.  The defence case was that the police investigation had been incompetent so that the jury could not be satisfied that the possibility of a third person murdering the deceased had been eliminated.

12.Highly speculative though this was on its face, the defence were able to point to other aspects of the evidence which they said gave their assertion of a third person being present in the premises at the time of these events some substance.  Most importantly perhaps, apart from the absence of the deceased’s house keys from the premises, was the fact that no fuel containers or other vessels containing any form of accelerant were found in the premises.  This, said the defence, pointed to some third person having killed the deceased, then having started the fire and taken the container or containers of accelerant away with him. 

13.The defence relied also on the previous happy family relationship which existed between the applicant and his family, including the deceased.  On that evidence, which was not disputed, they argued at trial that the applicant was a person who not only had no motive to kill his daughter but was not likely to have killed her in the vicious and determined manner in which the attack was carried out.

14.The difficulty the applicant faces is that all of these matters were fully explored evidentially before the jury and formed also the substance of the final address of counsel for the defence at trial.  They were thoroughly and fairly put by the judge in his summing-up.  The jury can have been under no misapprehension as to the defence of the applicant being that a third party may have murdered his daughter.  The matters the applicant relies upon in support of that defence are, as we say, all essentially matters of fact and when placed alongside the evidence against the applicant, particularly the admissions he made in his interview with police upon his release from hospital, which made no mention of a third person attacking his daughter in his presence, do not in our view render his conviction either unreasonable or unsafe.  The applicant suggested today that he may have been under the influence of evil spirits at the relevant time.  He raises that for the first time and that it is not a matter which assists him in this application.

15.The ground advanced by the applicant must fail.

16.Mr Luk has however brought a further matter to our attention.  The wife of the applicant gave evidence for the prosecution at trial.  While she was a competent witness for the prosecution pursuant to the provisions of section 57(1) of the Criminal Procedure Ordinance, Cap. 221, she was not compellable, as the murder was not a specified offence for the purposes of section 57(3) and (4).  Before giving evidence, she was not informed by any of the court, the prosecution or the police that she was not compelled to do so.

17.The principle involved was considered by this court in HKSAR v. Choi Kwai Kun (unreported), CACC263/2005 where the following statement contained in R. v. Pitt [1982] 75 Cr.App.R. 254, at 258 was approved :

“

It seems to us to be desirable that where a wife is called as a witness for the prosecution of her husband, the judge should explain to her, in the absence of the jury, that before she takes the oath she has the right to refuse to give evidence, but that if she chooses to give evidence she may be treated like any other witness.”

18.In Choi Kwai Kun, which was a case concerned with the evidence of a former wife of the defendant in circumstances where the wife was not compellable as a witness pursuant to section 57(10) of the Ordinance, this court went on to say :

“	16.	If, as in the present case, the judge fails to say anything to a former spouse before he or she gives evidence, it is important to place the matter in context and consider the nature of the proceedings before concluding that the failure to inform her should constitute a material irregularity.
	17.	A number of questions could be asked.  Was the spouse a vital witness?  Was the evidence of the wife and husband diametrically opposed?  Was the former spouse the complainant to the police?  Did the former spouse ever indicate any reluctance to testify during the trial preparation stage?  Was the allegation that the ex-spouse had been cheated out of money or property?  Was it the sort of case in which common sense and logic would suggest that the former spouse would be enthusiastic rather than coy about giving evidence?”

19.In our view that remains an accurate statement of the law.  Whilst it is desirable in practice for a spouse to be informed at some stage that they are not compellable to give evidence against their husband or wife, there is no rule of procedure or of law which requires that always to be done.

20.It may well be that in some circumstances a failure to do so will not only be an irregularity but one which is material; perhaps where a witness expresses reluctance to give important evidence against their spouse and does so only because he or she believed they were obliged to do so. 

21.In other circumstances, it may well be plain that the witness is called to give purely formal or uncontroversial evidence and is happy to do so.  Each case depends upon its own facts.  But where a defendant’s case is materially prejudiced by evidence given against him by his or her spouse, where that witness was unaware he or she was under no compulsion to give evidence, then it would in the normal course follow that there had been a material irregularity.

22.In the present case, the evidence given by the applicant’s wife Madam Ho was either common ground, was of no great importance or assisted the applicant’s case. 

23.She gave evidence of who lived in the premises, that is the applicant, herself and the deceased.  She also gave evidence she was not present in the flat at the time of the offence.  None of that was in issue.  She gave further evidence that she, the applicant and the deceased had a happy and harmonious relationship.  That latter evidence assisted the defence case.  Madam Ho at no stage indicated she was reluctant to give evidence.  

24.In our view, the failure to inform Madam Ho that she was not compelled to give evidence against the applicant, if an irregularity, was not material.  

25.The application is dismissed.

Mr Arthur Luk, SC, of DDPP and  Mr David Leung, Ag SADPP of Department of Justice, for the Respondent

Mr John Charles Haynes, as assigned by Director of Legal Aid, for the Applicant (assisting Court only)