R. v. Chan Sai Kit
Read the full judgment text of CACC 619/1993 on BabelCite. This Court of Appeal judgment was delivered on 21 February 1995.
1. The applicant was, after trial before Wong J. and a jury, found guilty of murder. The charge alleged that on the 23rd day of October 1989 at an unnumbered wooden hut in Fuk Hang Tsuen, Lam Tei, Tuen Mun, New Territories, Hong Kong, he had murdered Mak Wai-ngor. The victim was the wife of the applicant. It was the Crown case that he murdered his wife by incinerating her, having arranged the scene so that it would appear that she had been the victim of an accidental fire which occurred while sh
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CACC000619/1993 IN THE COURT OF APPEAL 1993, No. 619 HEADNOTE Challenge to admissibility of circumstantial evidence showing past enmity and ill-will in a murder trial - Held: There was a sufficient link to the relationship at the time of the murder. Reliance by defence upon expert evidence that fire was probably accidental. Held: Witness went beyond the area of his expertize when giving that opinion as he could properly have said no more than that there was no evidence of foul play and that what he observed was consistent with the evidence of the accused. IN THE COURT OF APPEAL 1993, No. 619 ____________
____________ Coram: Hon. Power, V.-P., Macdougall, V.-P., & Liu, J.A. Dates of hearing: 24 and 25 January 1995 Date of judgment: 21 February 1995 ___________________ J U D G M E N T ___________________ Power, V.-P.(giving the judgment of the Court): 1. The applicant was, after trial before Wong J. and a jury, found guilty of murder. The charge alleged that on the 23rd day of October 1989 at an unnumbered wooden hut in Fuk Hang Tsuen, Lam Tei, Tuen Mun, New Territories, Hong Kong, he had murdered Mak Wai-ngor. The victim was the wife of the applicant. It was the Crown case that he murdered his wife by incinerating her, having arranged the scene so that it would appear that she had been the victim of an accidental fire which occurred while she was assisting him to repair his motor vehicle. There was nothing at the scene which indicated that the fire had been deliberately set. It was the Crown case that the applicant had a motive to murder his wife and that there were scientific evidence to establish that his detailed story of an accidental fire was untrue. The Circumstantial Evidence 2. The evidence as to motive came principally from four tape-recorded conversations which the wife, without the knowledge of the applicant, had made while they were residing in Canada in 1986 with, it appears, a view to using the tapes as evidence in divorce proceedings. The exact dates and sequence of the tapes could not be established but it was clear that they were recorded in the months preceding 10th December 1986. 3. It was not disputed that the tapes were of conversations between the deceased and the applicant. They were produced at trial as Exhs.P10, P11, P12 and P13. Two of the recordings were of conversations in person and the other two were of telephone conversations. In the course of the tapes the deceased makes constant complaints of infidelity which the applicant does not deny. There were further complaints of assault which were also not denied. Exhibit 10 reveals a catalogue of accusations by the deceased. The applicant failed to make any specific response to the great majority of the accusations. He does, however, make several answers which appear to be admissions of adultery. It must be said that the deceased seems clearly to have been deliberately provoking the applicant in an endeavour to obtain evidence which she could use against him in divorce proceedings. 4. In Exh.11 the deceased accuses the applicant of wanting to murder her and says that if she dies it will be definitely him who has murdered her. There are also repeated complaints that it was she who has been providing the money for the house and the matrimonial expenses. Again there are accusations of infidelity and again there are oblique answers which appear to be admissions of unfaithfulness. There is a bizarre discussion of the way in which the applicant might murder the deceased in which he says that he would not do it with his own hands or by employing someone or by using poison as that would not be "legal". At one stage the applicant says: "But I would not take a gun to put you to the fucking death. I have the 'get away from' already well-planned. Have been contriving plots all the time. You thought that I ... when I was at an idle end, all the time I was thinking of those things." The deceased then says, "So I see !. You do not go to work so that you can think about how to murder me." To this applicant replies, "It is not your fucking concern. Anyway I have plans to proceed with ..." 5. Later in the conversation after a discussion about family finances the following passage occurs:
The conversation later continued in the following terms:
In the course of this conversation the deceased accused the applicant of being homosexual and of "fondling" another man. The deceased repeated her accusation that the applicant wanted to kill her, after which the following exchange occurred.
Later the applicant said:
6. Exhibit 12 is the first of two telephone conversations. It occurred after the applicant had wounded the deceased with a knife. The wound to her hand was a serious one requiring 20 stitches. The applicant when asked by the deceased why he had done it says that he "wanted to scare" her. After some discussion about family finances the applicant asks the deceased to tell the prosecutor that she does not want to proceed with the charge which had been laid against him as a result of the wounding. The applicant protests that he loves the deceased and eventually she says:
To this applicant replies:
The deceased endeavours to obtain financial concessions from the applicant and a promise that he will seek marriage counselling. Later in the conversation the deceased accuses the applicant of wanting to murder her and says:
The applicant replied:
The applicant goes on to say that an admission of adultery with a woman in Vancouver which he had made was not true and that he had only invented it to make the deceased anxious. 7. The second telephone conversation (Exh.P13) appears to have taken place after the court hearing as the wife asks why he did not now come to visit. In this conversation the applicant is aggressive from the outset. He abuses the police and when the deceased refuses to permit him a late night visit saying that she is afraid for her safety, the following passage occurs:
8. Tong Siu Wai, the younger sister of the deceased, gave evidence that in 1987 the deceased and the applicant had come on a visit to Hong Kong. She said that while her sister stayed with her off and on for may be two months the applicant was only in her house for less than ten days. She said that they were not a very loving couple and had quarrels over very minor things. It was her evidence that "they were never at peace and their kind of conversation was very heavy stuff and very explosive". She said that on one occasion, after the couple returned from Beijing, they looked very angry and upset and the applicant was aggressive and punched the deceased. This witness went on to say that in March 1989 the couple again returned to Hong Kong and that she saw them three or four times between March and October and that on only one occasion did she see a quarrel. Hospital records were produced which indicated that the date of this incident was 2nd September 1989. The witness said that the deceased had complained that the applicant had given her some tonic soup and that after taking it she felt dizzy and that the applicant then had her lie down and rubbed her with some kind of medicine oil with the smell of chloroform. The witness said that the applicant denied having done anything improper to his wife. Under cross-examination she said that on that evening the deceased had said that she did not wish to go back to Wood Yuen because the applicant would "set another trap and do her in". She also said under cross-examination that by 1989 the couple "appeared on the face of it to be happy". It was the defence case that whatever had occurred in 1986, thereafter the relationship between the deceased and his wife had been a relatively normal one. 9. The defence relied upon evidence that the deceased had in May and again in September 1988 written letters to two cousins in China saying that her husband was behaving better. The defence also relied upon the evidence of Ng Siu-chuen, an uncle of the applicant with whom the couple lived at Fuk Hang Tsuen from March 1989 until the death of the deceased on 23rd October 1989. Mr. Ng gave evidence that they were "a very close and loving couple." The Crown, however, relied not only upon the evidence of Tong Siu Wai, set out above, but also on the evidence of Mak Hing-yeung, a younger brother of the deceased, to show that there was persistent enmity between the couple. Mr. Mak said that, in December 1988:
Under cross-examination he said:
10. The Crown also relied upon evidence surrounding the making of a "joint will" in 1989. 11. On 6th March 1989 when the applicant and the deceased were in Canada the applicant asked a friend, Poon Man-chu, to assist in drafting a will. A document which he described as "a joint will" was drafted and upon the instructions of the applicant he inserted the following clauses:
The witness said that a few days later the applicant rang him saying that the deceased had changed her mind and asked him to draft another will. He said that his instructions with regard to the second will were that the applicant's brother was to become the beneficiary of the matrimonial home at 121 Pitt Avenue, Scarborough, Ontario, in the event of his death and was also to become the beneficiary of what was left in his bank accounts. He said that he was also instructed that there was not to be any clause IV in the new will. He said that the applicant told him that this alteration was decided upon after he had had a discussion with his wife. He said that the applicant later came and asked him for the new will and that he had witnessed the applicant signing it. This second will has never come to light. 12. The final piece of circumstantial evidence upon which the Crown placed reliance was the evidence as to insurance policies. In 1982 the deceased took out a life insurance cover in the amount of $35,000 and the applicant took out a similar cover in the sum of $50,000 which he raised to $85,000 in 1985. On 17th May 1988 each party took out a further cover in the sum of $35,000 in the event of accidental death or dismemberment. Further, on 3rd March 1989, some ten days prior to the couple coming to Hong Kong, a travel insurance was taken out by the applicant. The Crown did not seek to make any point with regard to these policies other than that the applicant was aware of their existence and that upon the death of his wife he would obtain, if the policies were applicable to the circumstances of the death, substantial financial benefit from them. The Applicant's Version of the Fire 13. No one witnessed the fire except the applicant, but there was substantial expert evidence with regard thereto. 14. The applicant did not give evidence, but in a statement made shortly after the incident he said that he had decided to repair his car on 22nd October 1989 and that
15. In a cautioned statement made some three hours later the following exchange occurred:
Later in the statement came the following passage:
It was, then, the applicant's story that when he went to the bench his wife was seated in the driving seat of the car, that he then heard the motor being turned over and the sound of a 'pop' and that when he turned to look at the car it was 'engulfed in a fire ball'. He was also, it is true, saying that he did not at that time see his wife and so was unaware whether or not she was still in the car. If his story were true then his wife must have left the car and gone around behind it before she succumbed to the fire as her body was found immediately behind the vehicle. It seems, however, if this be so, that, although he turned immediately upon hearing the 'pop' and upon becoming conscious that a fire had started, he did not see his wife leave the car even though he was on its off side, that is on the driving side, and only about 10 feet away. The Expert Evidence as to the Fire 16. The first expert witness was Mr. Tang Man Hin, a forensic scientist. Considerable reliance was placed upon his evidence by the defence. Mr. Tang made an examination of the scene before giving his report. He said that his findings were consistent with the description given by the applicant. During his evidence in chief the following exchange occurred:
Having considered the evidence as to the state of the scene we are satisfied that Mr. Tang should not have been allowed to make this observation. While it was entirely within his province to state that there was no evidence of foul play and that he found nothing suspicious, he went beyond what was proper when he said that it was "more probable to be started accidentally". This was pure speculation as his expertise did not entitle him to make such an observation. He could properly do no more than say that he found nothing suspicious and that his findings were consistent with the applicant's story. 17. The other important expert evidence came from Professor Ferris, a forensic pathologist. He placed particular reliance upon the fact that the carbon monoxide level in the body of the deceased was only 23%. It was his finding:
18. In examination in chief the following passage appears:
19. The final passage in examination-in-chief was as follows:
20. In cross-examination the following passage occurred:
The defence placed particular reliance upon this passage, suggesting that in it the doctor had resiled from his earlier opinion. We do not agree. He was doing no more than agreeing that she would have "survived long enough", i.e. more than 3 to 5 seconds, for her, had she been in the cabin, to have escaped from it and reached the spot where she was ultimately found. It was, however, clearly not his opinion that this has happened. He had made that plain in his evidence in chief and reaffirmed it in the following passages in re-examination:
Finally in re-examination we have the following passage:
21. Mr. Charles Close, an industrial training consultant, gave evidence referring to a record which showed that the applicant had been an indentured mechanical apprentice in Ontario and had successfully completed both the in-school and the on the job portions of the apprenticeship programme. He said that the applicant was awarded a certificate of apprenticeship and a certificate of qualification which was in effect a licence to practice as a mechanic in Ontario. He said that the records showed that the applicant later sat for an inter-provincial examination which would have allowed him to work in other provinces without having to be qualified, but that he had failed in this exam. Mr. Close went on to say that the applicant qualified in electrical systems from his first exam and the first certificate that he received. This witness also gave evidence that if there were any spillage of gasoline while repairs were being conducted an experienced and qualified man's prime concern should be either to air out the area and get rid of the fumes or to dry up the spillage. He also said care should be taken with regard to any loose wires and battery which could be dangerous because of the possibility of arcing. He said that these were basic things of which a person with the qualifications of the applicant must have been aware. The Grounds of Appeal 22. We turn now to the grounds of appeal. 23. The applicant contended in Grounds 1 and 2 that either the judge had erred in law in admitting the four tape-recordings or that he had failed to exercise his discretion to exclude them on the ground that their prejudicial effect exceeded their probative value. It was argued that they were inadmissible, being not proximate enough in time to the alleged defence and because they could not reasonably be regarded as evidence of enmity or ill will which might have motivated the applicant. 24. They were clearly evidence of enmity and ill will in 1986. The only question for determination under Grounds 1 and 2 is whether they were, given their nature and given what occurred between 1986 and 1989, so linked to the relationship of the parties in 1989 that they could properly be regarded by the jury as evidence to establish a motive for murder. The defence relied upon the evidence of the sister and the uncle which we have set out above which indicated that there was a harmonious relationship between the parties in 1989. There was certainly some evidence to that effect. There was also evidence coming from the sister and the brother that a degree of enmity persisted. We refer particularly to the evidence of the younger sister as to the quarrels in November 1987 and as to the incident some six weeks before the alleged offence and to the brother's evidence of the insulting behaviour by the deceased and the assault upon her by the applicant in December 1988. 25. Mr. Mullick, who appeared for the applicant, relied particularly upon the decision in R. v. Barbour [1939] 1 DLR 65 where evidence of previous quarrels and assaults was held to be inadmissible upon the issue of malice in a murder charge. The facts in that case were, however, very different from those in the present case and we find it of little assistance. Each case must be looked at in the light of its facts applying the principle which was clearly stated during argument in by Lord Atkinson in R. v. Ball [1911] AC 47 at page 68:
We rely also on a passage from the earlier case of R. v. Bond [1906] 2 KB 389 where Kennedy J. at p.401 said:
In the present case we are satisfied that there was evidence upon which the jury might have been satisfied that there was a continuing history of enmity by the applicant towards the deceased and that the evidence was therefore rightly admitted. The admissibility of such evidence is in no way affected by the fact that the deceased may by her own behaviour have exacerbated the ill will that had grown up between the parties. 26. The third ground contended that the judge had erred in ruling that the evidence relating to the insurance policies was admissible. This was, it is true, not conclusive evidence but it was certainly relevant to the relationship of the parties and could, we are satisfied, properly be taken into account when determining whether the applicant had a motive to kill his wife. This is particularly so given the evidence which revealed that the parties had argued about money and about the control of the family assets. The judge gave the following direction in this regard:
This was a moderate and, in our view, proper direction as to the policies. 27. Under Ground 4 it was argued that the evidence relating to the will and its proposed alteration by the applicant was not relevant to either malice or motive. The judge when summing up did no more than recite the evidence of Mr. Poon as to the making of and the proposed changes to the will. He, properly in our view, left the assessment of that evidence to the common sense of the jury. The applicant's endeavour to delete Clause IV and to change Clause III, so that a member of his family benefited thereunder, were matters which the jury were entitled to take into account when assessing motive. 28. Under Ground 5 it was argued that the prejudicial effect of the evidence as to the will so far outweighed its probative value that the judge should in his discretion have refused to allow it to go before the jury. We have no hesitation in rejecting this contention. The evidence was clearly relevant and was properly before the jury. 29. Mr. Mullick next turned to the contention contained in Ground 8 that the trial judge erred in law and in fact in ruling that the appellant had a case to answer. He submitted that the only evidence as to the cause of the fire came from Mr. Tang and that since Mr. Tang had concluded that the fire was accidental, the trial judge should have held that there was no case to answer. This witness, as we have already indicated, went beyond what he could, as an expert, properly have said. His evidence should not have gone further than to state that there was no evidence of foul play and that what he observed was consistent with the story of the applicant. The judge was, in our view, clearly correct to hold that there was a case to answer. 30. In Ground 9 it was argued that the judge should have left the issue of manslaughter to the jury. It was argued that the judge himself recognized the existence of such an issue when he had said, when ruling on the submission of no case, that:-
31. Mr. Plowman Q.C., who appeared for the applicant at trial, stated, when submitting that there was no case, that "manslaughter simply does not arise on the facts". He never resiled from that statement. It seems to us, however, that the defendant's story, it being accepted that he was a trained mechanic, did raise the possibility of criminal negligence on his part and that it was, therefore, the duty of the judge, whatever the view of counsel, to direct the jury as to manslaughter. 32. However, it is plain from their verdict that the jury were sure that the applicant had intended to kill his wife and that her death did not come about as the result of criminal negligence on his part. In the circumstance we have no hesitation in applying the proviso. 33. Under Ground 15A it was argued that the judge "erred in observing to the jury that, if they accepted the evidence of Professor Ferris, they could find that the appellant had not told the truth in his statements when he asserted that the deceased was in the motorcar when the fire started." It is necessary to look at what the judge said to the jury. He told them firstly that there was no contradiction between the statements of the accused but went on to say:
It was Mr. Mullick's contention that the applicant had never said she was in the car when the fire started. We have set out what the applicant said in this regard. While he did not say so in terms, it seems to us that the clear and only implication from what he said was that the deceased was in the vehicle at the time when the explosion occurred and the fire started. We find no error on the part of the judge in this regard. 34. When arguing this ground Mr. Mullick submitted, further, that the evidence of Professor Ferris was so contradictory that the jury should have been told that no weight could be attached to it. We have already dealt with this contention when reviewing the evidence. We are satisfied that the evidence was not contradictory and that the evidence was properly left by the judge for the consideration of the jury. 35. Issue was taken in Ground 16 with the following comment made by the trial judge:
It was submitted that this possibility was never canvassed at trial and that no opportunity was given to the defence to make submissions or to address the jury thereon. What the judge said was no more than a common sense observation. It was one which he was entitled to make, given, of course, that he left it, as he did, for the jury to make up their own minds about the matter. 36. Finally it was argued in Ground 19 that the trial judge erred in not giving the jury the standard direction with regard to the applicant's previous good character. It is true that there was evidence before the jury by way of agreed facts that the applicant had a clear record. However, given the applicant's statements in the tapes, we find it difficult to know what comment the judge could properly have made as to his "good character". Anything he said would properly have had to have been so qualified that it would have been unlikely to have been of any assistance to the applicant. In the circumstances we are satisfied that the judge's failure to give such a direction worked no prejudice to the applicant. We give leave to appeal, treat the hearing of the application as the hearing of the appeal. We find no merit in the grounds argued other than the submission that the judge should have given a direction on the alternative verdict of manslaughter. We find, however, that this occasioned no miscarriage of justice, we apply the proviso and dismiss the appeal.
Representation: Mr. John Mullick & Mr. Johnny Chan assigned by D.L.A. for the Applicant. Mr. A.P. Duckett, Q.C. & Mr. Wesley Wong (Crown Prosecutor) for the Respondent. |
Cases cited in this judgment