HKSAR v. Fung Yuen Cheong

CACC 166/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 166 OF 2007

(ON APPEAL FROM HCCC NO. 196 of 2006)

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Before:   Hon Stuart-Moore VP, Beeson and Hartmann JJ

Date of Hearing: 8 July 2008

Date of Judgment: 8 July 2008

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.On 14 May 2007, the applicant was convicted, following a trial before V. Bokhary J and a jury, of murder for which he was sentenced on the same day to life imprisonment.  He now seeks leave to appeal against conviction.

2.The particulars of the sole count on the indictment alleged that the applicant:

“… on the 7^th day of June, 2006 at Room 815, 8th floor, Luk Chuen House, Lek Yuen Estate, Shatin, … murdered Mui Sau-kuen.”

Prosecution’s case

3.The prosecution’s case can be shortly described and, for these purposes, we can adopt much of Mr Simon Tam’s helpful analysis of the case.  The applicant, who was about 70 years old at the time of his conviction, and his 48-year-old wife, Mui Sau-kuen (the deceased), were divorced in May 2006.  On 7 June 2006, the applicant and the deceased had a quarrel about which of them should move out of the matrimonial home.  In the result, the applicant fetched a plastic paper cutter (exhibit P5), shaped like a Stanley knife with a similar razor-like blade, and killed the deceased with it by cutting her throat open and severing a jugular vein in the process.  It was the prosecution’s case that the applicant could only have intended to kill or cause the deceased really serious bodily injury by such an action on his part.

4.Madam Chiu Kuen-nui lived in Flat 816 of Luk Chuen House which was opposite the flat occupied by the applicant and the deceased.  Madam Chiu testified that she was at home at about 9.15 a.m. when she heard the deceased calling to her for help.  When she went into the deceased’s flat, she saw the deceased lying on the balcony with blood all over her and on the floor.  The applicant also had blood on him and she saw him squatting on the floor holding the deceased’s neck.

5.Madam Chiu then hurried back to her own flat and dialled 999 for the police.  She then returned to the deceased’s flat where, from the entrance, she could see the applicant washing blood off himself and, seeing so much blood, she realized the situation was very serious.  She said that she did nothing to try to stop the flow of blood from the deceased’s neck because she was afraid that by getting closer he would kill her as well.

6.Death was formally certified at 9.47 a.m. after the deceased had been taken by ambulance to the Prince of Wales Hospital.  Photographs of the flat and of the injury, showing the length and depth of the fatal wound on the deceased’s neck, were produced by agreement in evidence.

7.Dr Poon Wai-ming, a forensic pathologist, gave evidence about the autopsy he performed on the deceased at Fu Shan Public Mortuary on the day following the incident.  He concluded that the cause of the deceased’s death was due to “massive blood loss from the cut wound to the deceased’s neck with [a] cut across the right internal jugular vein”.  Dr Poon also found multiple bruises on both of the deceased’s upper limbs which he described as being consistent with forceful gripping of the deceased’s upper limbs during a physical struggle.

8.According to the autopsy report, two cut wounds were found.  The fatal wound was described by Dr Poon as follows:

“A 16 cm cut wound running across the front and right side of neck. It began at the inner left upper front of neck at the level of the thyroid lamina where it deepened abruptly and ran transversely to the right to cut across the skin and the subcutaneous tissue. It then crossed the midline to continue to run transversely to the right, where it caused severance of right strap muscles and the right thyroid lamina. It then cut across the anterior wall of right internal jugular vein and completely severed the right sternomastoid muscle. It then ran further towards the right with slight upward slanting and showed abrupt shallowing at the posterior border of right sternomastoid muscle to continue as a shallow cut wound that exposed the subcutaneous tissue only on the right side of neck. It terminated at the back of right side of neck.”

9.Dr Poon dealt with both cut wounds to the deceased’s neck in his evidence.  The fatal cut wound, he said, was very deep.  A shallow cut, which ran below it, joined the fatal one.  The two wounds came, the doctor testified, from separate cutting actions.  Dealing with the fatal cut wound, Dr Poon said that to have inflicted such deep-tissue injuries, an instrument with a very sharp edge such as exhibit P5 had been used.

10.Dr Poon expressed the opinion that the most likely way in which the fatal wound was inflicted was that it started on the left side of the deceased’s neck and went towards the right side of the neck.  However, there was, he said, another scenario which he variously described as being of “low probability”, “unlikely” and “less likely”, with the fatal cut starting on the right of the deceased’s neck and ending on the left.  If the fatal cut went from the left of the deceased’s neck to the right of the deceased’s neck, and if the person who did the cutting did so with his right hand while standing face-to-face with the deceased, then it would appear that the stroke was delivered by a forehand blow.  As to the shallower cut, Dr Poon found it very difficult to express an opinion as to the direction in which it moved.  He said: “it can be either direction”.  When asked which of the two cut wounds occurred first in time, Dr Poon answered: “Scientifically, I think I cannot tell”.

11.The applicant was video-recorded in interview by the police at Shatin Police Station between 4 and 5.04 p.m.  The applicant said that he married the deceased in about 1985 in Taishan.  Their son was born in Guangzhou in 1988.  The deceased and her son came to Hong Kong in July 1997 to live with him.  The applicant retired from work in about April 2000 and after that he was living on his savings.  According to the applicant, the deceased used to work as a “bus girl” at the Ming Sing floating restaurant in Shatin earning at least $6,500 per month.  He said that when they were divorced, the judge had ordered that they should have joint responsibility for their son.

12.Dealing with the events leading up to the killing earlier that morning, the applicant told the police that his son had gone to school after 7 a.m., leaving only himself and the deceased in the flat.  Sometime after 8 or 9 a.m., he talked to the deceased about their arrangement to meet the staff of the Housing Department and she then made an appointment by telephone to meet someone in that department at 11 a.m.  The purpose of the meeting was to decide who was to move out of the flat and who was to stay behind.  However, when they started to speak amongst themselves on this subject, the applicant told the deceased she should move out as this was what she had promised to do once their divorce had been approved.  The applicant said that a few days earlier he had reminded the deceased of her promise to move from the flat but she had refused to do so, saying that it would be more convenient for their son to attend school if he were to continue to reside in the flat at Room 815. 

13.The applicant told the police that his conversation with the deceased at just after 9.00 a.m. on 7 June 2006 had lasted a very short time but instead of agreeing to move out, the deceased maintained that the applicant was the one who should move out.  They had started talking on this subject while they were in the living room but they ended up on the balcony of their flat.  While there, the deceased said she would not move out unless the applicant was to kill her.  The applicant told the police that the deceased’s words infuriated him because she had talked to him like that many times since her arrival in Hong Kong in 1997, using her death to bluff him.  After hearing what the deceased had to say, the applicant said that he returned to the living room and fetched a cutter from the top of a teapoy near the balcony.

14.The applicant then returned to the balcony and asked the deceased: “Is it I who is to leave?” and the deceased said: “Yes.”  The applicant then said: “Is that really the case?” before he slashed her with the cutter.  When asked by the police interviewer which part of the deceased he had cut, the applicant used his hand to indicate the place, admitting also that he had held the cutter in his right hand.  The applicant described how he and the deceased had been standing face-to-face when he used the weapon to cut the deceased with a backhand stroke, cutting her neck from her right side to her left.

15.The applicant said that after he had cut the neck of the deceased, the deceased tried to snatch the cutter from him and a struggle between them ensued while the deceased was bleeding from her neck.  At one stage, the applicant said that the deceased managed to snatch the cutter from him and to cut him on the fingers of his left hand.  The applicant said he managed to “defeat” the deceased by kicking her to the ground.  The cutter then dropped to the floor and the applicant said he kicked it away.

16.The applicant said the deceased then cried very loudly to a neighbour for help and grabbed hold of his foot tightly with her hands as she lay on the floor not letting him move away from her.  The applicant said he later noticed Madam Chiu’s presence in the flat.  She was saying that she had already made a telephone call and that the ambulance was on its way.

17.The applicant was asked if he used his hands to hold the deceased’s neck to staunch the bleeding while his neighbour was in the flat.  He denied this.  He also said that he had only cut the deceased’s neck once.

18.The applicant told the police that what had happened that morning was the result of an accumulation of things.  He said he did not want to move out of his flat at his age; he had married and brought the deceased to Hong Kong, yet she had showed no gratitude towards him; the deceased had been treating him badly for a long time; the deceased had refused to pay a month’s rent for him back in year 2000 even though her income was higher than his; the deceased claimed she had not eaten a meal given by him though he had been financially supporting his family; and the applicant said the deceased knew that he had to urinate frequently because of a medical condition but she would very often occupy the toilet and not let him use it.  In short, as Mr Tam described it, the applicant claimed the deceased had been abusing, bullying and browbeating him for a long time and, despite the deceased’s promise to move out of the flat once their divorce had been approved, she had refused to honour her promise.  It was accepted that the applicant had been calm, polite and co-operative throughout his interview and had been eager to tell the police about the history of the marriage from his perspective.

Defence

19.The applicant elected not to give evidence before the jury.  The main lines of defence raised on his behalf by Mr John Haynes, who also appeared in these proceedings, were that the prosecution had not proved to the requisite standard that the applicant had an intention to kill or to cause serious bodily harm.  It was suggested that the cut wounds found on the deceased could have been caused by an accident.  Alternatively, it was contended that the prosecution had failed to negative the partial defence of provocation.

20.It was an admitted fact that the applicant had a clear record and the defence called two witnesses to deal with his character.  Madam Ho Siu-ying worked in a company for which the applicant also used to work.  She testified that during her occasional contact with him, she had sometimes argued with him but she agreed that nothing violent was involved and that these disagreements were over trivial matters.

21.The second defence witness, Madam Chau Wai-lin, also said that she knew the applicant in a non-social context at about the end of 2003.  The applicant never behaved badly towards her and she thought him to be a gentle person who would not fight over anything with other people.  At the location where each of them shared the ‘hobby’ of stock trading, sometimes people would fight over the use of monitors but the applicant would behave gently and let others use the monitors.  However, under cross-examination, it was brought out from this witness that it was in fact in 2006 that she had last met the applicant and that they were both still interested in their hobby at that time.  In addition, apart from meeting the applicant at the share trading company, she had had tea with the applicant and others, albeit she had not been to the applicant’s flat.  In short, she knew the applicant rather better than she had at first been prepared to say.

Grounds of appeal

22.Mr Haynes advanced six grounds of appeal.

23.The first of these was that the judge had erred when deciding to admit the evidence of the applicant’s confession to the police in his video-recorded interview.  It was submitted that there was self-evidently oppression involved in the tactics used by the police when obtaining the applicant’s permission to be interviewed in front of the camera.

24.A voire dire was held in advance of the trial proper when all the issues raised at this hearing were dealt with before the judge.  Mr Haynes expressed his position to V Bokhary J thus:

“My Lady, the application to your Ladyship to exclude these admissions in their entirety is based on the discretion that your Ladyship has if the prosecution fail to exclude the possibility, and that’s all I seek to establish, that these admissions came under oppressive circumstances. The courts have wisely not sought to limit the notion of oppression to a particular definition ...” (Appeal bundle p. 291)

25.The points raised by Mr Haynes could not have been more straightforward.  In essence, he submitted that the applicant had been “gently pushed” into an interview despite having expressed a desire not to have his face filmed at the start.  The suggestion was that he was badgered by the police into “abandoning his unwillingness”.

26.We have before us, as the judge also had, the full transcript of the interview.  The judge had the additional benefit of having seen and heard the video-recording of this interview.  We do not need to rehearse again the arguments put before the judge.  We have, unfortunately, had to listen to a repetition of all the same arguments advanced before the judge, an utterly wasteful exercise in time which was neither helpful nor constructive.  There is no possible basis on which the judge’s ruling, in the exercise of her discretion, can be criticised.  She said:

“… I have carefully considered all the evidence and all the arguments advanced by counsel. It is undesirable to say more than necessary. All that I would say is this - I am satisfied beyond reasonable doubt that all the admissions which the prosecution seeks to rely upon and which the accused disputes were made freely and voluntarily without any violence, threat, inducement, deception, trickery or oppression whatsoever. I am also satisfied beyond reasonable doubt that there is nothing which makes it appropriate to exclude any of his admissions by an exercise of discretion. I rule that all the disputed admissions may be given in evidence before the jury.” (Appeal bundle p. 306)

27.It is not without significance that the applicant did not testify during the voire dire.  In the result, there was no evidence to contradict the account given by the police that no oppression was involved in their handling of the interview.

28.This ground was wholly misconceived.

29.The second ground of appeal was a variation on the first.  It suggested that the judge had failed to sum up parts of the police evidence which “tended to indicate that oppressive conduct by the police may have persuaded the applicant eventually to agree to a video-recorded interview”.

30.Aside from various passages in the summing up which reminded the jury that they should have regard to the whole of the interview and not merely to those parts to which she made specific reference, the judge addressed the issue of oppression in the following terms:

“There is no suggestion that what the accused said or did at the interview was produced by violence, threats or inducements off-camera beforehand, although it was suggested by Mr Haynes to both officers, who did not agree, that PC48434 had in effect just put the Notice To Persons In Custody before the accused fleetingly to procure his signature on it, skating through the procedure. You will also remember that the cross-examinations included Mr Haynes suggesting to the officers, who disagreed with him, in effect that they had acted unfairly in not advising and pressing the accused to have a lawyer. Well, you can see at counter 33 and 34 of that interview -- you can turn to that: that’s at page 119 -- you can see from those two counters that the accused was asked if he needed a lawyer at the interview, and that the answer given by the accused -- at counter No. 34 -- was: ‘Not necessary’.

……

Mr Haynes suggested to both officers, who both disagreed, that the accused had been oppressed when they went ahead to interview him even though he has said: ‘Better not. Better not’. Well, you have seen the videotape and you can refresh your memory of it by looking at the transcript -- what was the context in which the accused said: ‘Better not. Better not’. You can see the entire context including the accused saying at Counter 26 – that’s at page 118: ‘I mean, it’s better not to video me from the front’. Then at counter 28, the accused said ‘Uh. It doesn’t matter. It doesn’t matter. Huh. It doesn’t matter. Go ahead, video it. Video it. Huh’.

Members of the jury, I have dealt with certain aspects of Mr Haynes’ cross-examination of these two officers. You will of course have regard to the whole of his cross-examinations and everything Mr Haynes chose to say about them in final speech. You will approach your task as the sole judges of facts, with fairness, common sense and realism.” (Appeal bundle pp. 22-23)

As the applicant did not give evidence at his trial, there was not a great deal more that the judge could have said.

31.This ground had no substance.

32.The third ground complained that the jury had been inadequately directed on the topic of inferences which might be drawn from the evidence and had given inappropriate examples to the jury to explain how inferences could arise.  Here, the particular relevance of the directions on inferences related to the applicant’s alleged intention when he struck the deceased with the cutter.

33.The simplest and most direct way of dealing with this complaint is to relate the directions actually given by the judge which were in these terms:

“Members of the jury, I will now direct you on the drawing of inferences. To infer a fact is simply to find a fact on the basis of another fact or other facts. So an inference is simply a conclusion of fact based on another fact or other facts. And to draw an inference is simply to find a fact on the basis of another fact or facts. It is the sort of thing that often happens in every day life.

Let me illustrate that by some examples. Suppose you were in the living room at home, you heard the sound of running water coming from the kitchen and then you heard coming from the kitchen the sound of crockery, such as a plate or a dish or a bowl being smashed. You would probably infer that somebody had accidentally dropped an item of crockery while washing or drying it. The fact that somebody had accidentally dropped an item of crockery while washing or drying it would then be an inference which you draw on the basis of other facts, namely the fact that the sound of running water had come from the kitchen plus the fact that the sound of an item of crockery being smashed had also come from the kitchen.

Another example: suppose you were at the arrival lounge at the airport, you saw somebody in the crowd facing the exit from which arriving passengers were coming out, you saw that person smiling and waving excitedly towards those passengers, but none of those passengers show any sign of recognition. You would probably infer that the person who was waving was doing so to attract the attention of one or more of the passengers whom he was there to meet but who had not seen him yet.

Yet another example: if you were at the railway station and you saw somebody looking rather sad waving gently towards a train which was leaving the station, you would probably infer that he was doing so to bid farewell to a person or persons on that train whom he was seeing off.

Also, suppose you were told on Friday after work that you were being promoted. And when you first walked into the office on Saturday morning you did not know whether your colleagues knew about your promotion. But then you saw all of them except one grinning at you, the one who was not grinning at you looked very glum, and he happened to be somebody who had been hoping also for that promotion. You would probably infer that your colleagues knew about your promotion. There are many such examples that one can think of - some more obvious, some less obvious.

The drawing of inferences can also be done in a criminal case, subject to this: you cannot draw an inference against an accused unless it is based on facts of which you are sure and you are sure that it is the only reasonable inference. If an inference against an accused is based on facts of which you are sure and you are sure that it is the only reasonable inference, then you may draw that inference against the accused. You can draw that inference as to what he did and also as to the intent with which he did it.

A person’s act or acts can give rise to an inference as to his intent in doing such an act or acts and sometimes that inference can be regarded as the only reasonable one in all the circumstances. Just as acts can be inferred and intents can be inferred, so can knowledge be inferred. Thinking that something is the only reasonable inference is the same as being satisfied of it beyond reasonable doubt; in other words, being sure of it. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think that it would be an unusual case indeed in which a jury can say ‘We now know everything there is to know about this case’. But the evidence must lead you to the sure conclusion that the accused is guilty before you can convict him.” (Appeal bundle pp. 7-9)

34.Mr Haynes placed emphasis on the fact that the central issue in the case was: “Where is the evidence of the mens rea for murder?”  This was dealt with during the summing up when the judge turned to the intent required for murder, distinguishing it from manslaughter, and went on to say:

“Intent and motive are different things. For murder, the intent needed is intent to kill or to cause really serious injury. A motive might be, for example, ill will against the victim, a desire to stop or to prevent the victim from doing something. Intent is an element of an offence, but motive is not. The prosecution does not need to prove a motive.

Members of the jury, you can never find anything against an accused person unless you feel sure of it beyond reasonable doubt. That means, if it is a matter of inference, that you cannot draw the inference against the accused unless you consider it to be the only reasonable inference. At the same time, you are expected to use your common sense and experience in life. And if you consider an inference against the accused to be the only reasonable one in all the circumstances, then that inference can be drawn against the accused.

The prosecution’s case against the accused on murder comes to this: the deceased and the accused, who were married to each other, had obtained a divorce a short time before the incident. On the morning of the incident, they quarrelled as to who should move out of the matrimonial home. As a result the accused killed the deceased by cutting her throat - and the only reasonable inference is that the accused intended that she should be killed or at least caused really serious injury and that the doctrine of provocation does not arise. So the accused is guilty of murder.

The defence disputes that. You have heard what Mr Haynes said in his final speech. Now what do you think is the only reasonable inference upon the whole of the evidence here?” (Appeal bundle pp. 18-19)

35.Later, the judge continued by saying:

“… In the present case there is no admission amounting to a full confession to murder since the accused has not said that he intended the death or at least really serious injury be caused. For the purpose of proving the intention necessary for murder, the prosecution relies on what it invites you to infer is the only reasonable inference in all the circumstances of this case.” (Appeal bundle p. 27)

36.These were directions, illustrated with easily understood examples, which dealt with the whole topic of inferences in a helpful and comprehensive fashion.  In any event, the applicant had made the plainest admissions to cutting his wife’s throat with a murderous weapon.  The police had not asked the applicant if he had intended to do her really serious bodily harm.  They did not need to do so.

37.This ground was devoid of merit.

38.The fourth and fifth grounds amounted to criticisms of the judge’s directions on provocation.  It was suggested that there had been an inadequate explanation given to the jury about what was meant by the expression “reasonable man” in that, as the applicant had a urinary problem, this may have impacted on his powers of self-control when confronted with a provocative situation but this was never explained to the jury.  Mr Haynes suggested that as the deceased had behaved in a way which may have provoked the applicant in the past in regard to his disability, this was a factor to be borne in mind in the context of the partial defence of provocation.

39.On the face of it, such evidence of provocation as there might have been related only to the deceased’s refusal to leave the flat and her demand that the applicant should be the one to leave.  Nevertheless, amongst other directions she gave on the topic of provocation and no doubt out of an abundance of caution, the judge said:

“… In connection with provocation, you will remember and consider everything said by Mr Haynes in his speech and the whole of the evidence, including the accused’s video-recorded interview. You will remember and consider everything said about matters such as the problem over housing and the problem the accused had about urinating and his being woken up and the bathroom being occupied, of his being taunted and bullied and all the other points made by Mr Haynes in his final speech.” (Appeal bundle p. 15)

40.These grounds were bereft of merit.

41.The sixth and final ground was that there had been a material irregularity at trial in that:

“… the court ‘ordered’ defence counsel to provide a written summary of the defence. This order was ultra vires and inconsistent with her earlier statement that such could only be done subject to defence counsel’s agreement. To state that the written summary would be for ‘her eyes only’ is inconsistent with fundamental principles of open and fair trial. The indication that it be provided to the bench before the speech was inappropriate. So as not to appear to be impolite and/or in contempt of court, defence counsel reluctantly complied with this order. That compliance constrained counsel’s freedom of speech to the prejudice of the applicant.”

42.At trial, the judge courteously gave an indication to Mr Haynes, well in advance, that if the applicant was not called to testify she would be asking for a list of defence points to be supplied to her.  Mr Haynes had rather grudgingly expressed provisional agreement that he would comply with this request.  The judge had not said that the list of points would be “for her eyes only” as Mr Haynes has now accepted.  He has rightly apologised for saying this and has now withdrawn that part of his complaint.  The judge had not requested either that the list should be presented to her before Mr Haynes’ final speech.  She required it before the summing up and had specifically said: “You can provide it to me after your final speech”.

43.Later, instead of giving his unqualified support to the opportunity he had been given of making sure that no material point raised by the defence was overlooked, Mr Haynes wrote a somewhat testy opening paragraph to his list of points for the judge which read:

“Pursuant to the order of Mrs Justice Bokhary issued to defence counsel on 9^th May 2007 and against the instinctive judgement of defence counsel (there being no practice direction ancient custom or usage to support such an order), defence counsel reluctantly submits to the Court’s order notwithstanding that such an order may prove to be ultra vires.”

44.Leaving aside Mr Haynes’ implicit discourtesy to the judge, he has, it goes almost without saying, been singularly unable to demonstrate the slightest prejudice to his case by the provision of this list.  The judge’s perfectly reasonable request could only have been of benefit to the defence.  This was not a situation where the defence were being asked to reveal their hand in advance of trial which would never normally be required save in limited circumstances such as the disclosure of an alibi.  Here, the evidence had been completed before the list was supplied.  It was pre-eminently sensible, following a trial where the applicant had not given any testimony himself, for the judge to have requested the points, which the defence felt ought to be emphasised to the jury, should be given to her in writing so that nothing was omitted by oversight on her part.  By this, we do not suggest that in every case where a defendant has not been called to give evidence such a list will be required as many trials will be very straightforward.  In complex cases or where a grave allegation has been made, such as in the present proceedings, a precaution of this kind is sensible.  It follows that it is to be expected that members of the Bar will responsibly cooperate with such requests particularly remembering that it is to the benefit of the defendant for this to be done.

45.This ground of appeal was not only misplaced, it was unarguable.

Conclusion

46.This application is dismissed.

Mr Simon Tam, SGC, of the Department of Justice, for the Respondent.

Mr Jonn Haynes, instructed by Messrs C K Kan & Co., assigned by the Director of Legal Aid, for the Applicant.