HKSAR v. Li Yim Sang

CACC 37/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINALl APPEAL NO. 37 OF 2007

(ON APPEAL FROM HCCC NO. 184 of 2006)

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Before:   Hon Stuart-Moore VP, Yuen JA and Wright J

Date of Hearing: 28 August 2008

Date of Judgment: 28 August 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 22 January 2007, following a trial before Beeson J and a jury, the applicant was convicted of murder and sentenced to life imprisonment.

2.The applicant now seeks leave to appeal against conviction on a single ground which complained that the judge wrongly directed the jury that they “need not be concerned about a motive” when the absence of a motive was “relevant in determining whether the applicant intended to kill”.

The facts

3.The particulars of the offence alleged that on 17 December 1997, at the rooftop, Block 2, 7^th Floor, Kam Fat Building, No. 112A Sha Tsui Road, Tsuen Wan, the applicant murdered Chan Siu-kin (the deceased).

4.The facts were straightforward.  The deceased, who was ten years younger than the applicant, was a Mainlander aged 25 when she died.  By then, she had been married to the applicant for less than sixteen months.  She would visit the applicant at his rented flat in Hong Kong using her two-way permit.  At that time the applicant was employed on an irregular basis doing part-time construction site work.  It seems that he was in financial difficulties as, amongst other things, he was unable to pay his rent.  The flat where he lived was where the deceased was killed.

5.A 999 call was made shortly before midnight on 17 December 1997 which caused the police and an ambulance to go to the applicant’s flat.  Prior to this, the door to the deceased’s bedroom had been forced open.  Her fully-clothed body was discovered lying face upwards on the bed.  She was wearing a rucksack on her back and a black cloth belt, fitted with a white buckle, was tied so tightly around her neck that it was obviously not supposed to be untied.

6.The deceased showed no signs of life when she was examined by Senior Ambulanceman Lo Lee-ho in the early hours of 18 December 1997.  He had to cut the belt in order to remove it from the deceased’s neck.

7.Dr Lai, the forensic pathologist who attended the crime scene and later carried out the post mortem, made a report of his findings which was supplied to the jury (Exhibit P79).  He estimated the time of death to have been between 4.00 am and 10.00 am on 17 December 1997.  Dr Lai found congestion caused by pressure applied to the neck which had obstructed the blood flow to the heart.  The pressure behind the ligature had indented the skin with the pattern of the belt.

8.Significantly, Dr Lai found no signs of any defensive injuries on the deceased’s body which he said were to be expected if the deceased had reached up in an attempt to pull away the ligature.  Dr Lai considered that, having regard to the absence of such injuries, it was likely that the deceased was unconscious when the ligature was placed around her neck or, alternatively, that she was unaware of it being put there.  Dr Lai found that as the deceased’s neck muscle was not bruised, this was an indication that there had not been much movement after the ligature had been applied.  Not only was there no sign of a struggle against the ligature itself but Dr Lai also observed from his visit to the crime scene that there were no signs of a struggle there. 

9.The case for the prosecution was that the applicant had strangled the deceased with the belt and very soon afterwards fled to the Mainland.  Immigration records revealed that the applicant left Hong Kong at 10.37 am on 17 December 1997 and was not seen again in Hong Kong until he surrendered himself on 2 May 2006, over eight years later, saying in his interview later that he missed his son and his parents.  His immediate response in regard to the killing was that he had not meant to kill the deceased, adding:

“I did it by mistake on the spur of the moment.”

10.In the interviews of the applicant which followed, the prosecution alleged that his account revealed only part of the truth.  It was alleged that he had tried to find an excuse for killing the deceased which fell short of murder, leading him to give an untruthful account about how he had killed her either by accident or mistake, coupled with an element of provocation.

11.Before turning to the applicant’s interviews, it is worthwhile dealing briefly with three other aspects of the evidence called by the prosecution which were significant.

12.First, the deceased’s brother-in-law, Mr Yu (PW8), testified that he received a telephone call on 18 December 1997 from the applicant who was speaking to him from the Mainland.  Mr Yu informed the applicant that the deceased had died.  The applicant said he would return straightaway.  Mr Yu noticed that he made no enquiry as to what had happened or why this had occurred but he gave the impression from what he said that he had been in the Mainland and had had nothing to do with the killing.

13.The second aspect of the evidence which we need to touch upon at this stage related directly to a possible motive on the part of the applicant for killing the deceased.  This evidence was provided by the deceased’s sister, Chan San-yung (PW10), who had witnessed arguments between the applicant and the deceased over a lady who was a friend of the applicant.

14.PW10’s testimony was put into context by the judge when summing up the evidence.  The judge began with a warning to the jury about the approach they should take to PW10’s evidence, saying that they should be careful of her evidence in view of her relationship to the deceased as well as other possible shortcomings which had emerged from the evidence she gave.  The judge then continued:

“[PW10] came in 1997, about three months before the death. She said the [deceased] was not at the flat at the time she came and that, ultimately, there was a telephone call which resulted in the deceased returning home. She said she herself returned on 28 November and she saw the deceased come home about a week or 10 days later, about 8 or 9 December. She said:

‘I knew she was in Hong Kong but I didn’t know exactly where she was. About three to five days before she died, on the 14th, 15th and 16th days, I remember this incident forever. Before she returned home, the defendant urged me to ask her to come home. He knelt in front of me in the living room, he said, “I promise I will treat Siu-kin [the deceased] very well when she comes back”. I said, “Are you serious about that?”. He said, “I am very serious”. I said, “Siu-kin will very soon get her own ID card. You should stick together, then have a kid, to have a family of your own”. He urged me to ask Siu-kin home. Only after that, I called Siu-kin and she returned home and was picked up by the defendant. After she returned, the defendant was very good to her. He bought her clothes and had tea with her. Later, there was a phone call; I don't know from who. After the return, they subsequently quarrelled and I am going to talk about what happened on those days. They had very bitter quarrels from the 14th to the 16th. They had had quarrels earlier but they were less intense. Siu-kin cried in front of me.’

Then she described coming back some time on the 15th or the 16th.

‘Normally, I was out from 9 to 10 o'clock. I opened the main door. Siu-kin came out, she opened the bedroom door, she was with the defendant. The gas cylinder had been moved to the doorway of the kitchen. Siu-kin had been with the defendant in the bedroom. She saw I'd returned home. The bedroom doorway was just next to the kitchen. There was a conversation between me and my sister. She was at the doorway of the bedroom; the defendant was at the doorway of the kitchen, standing with me and Siu-kin. She had come home. The defendant had bought her clothes. There was a belt attached to the jacket. She said Li [the defendant] wanted to suffocate her with the gas cylinder and to use the belt to strangle her. Siu-kin fetched it from the bedroom to show me.’

She is referring to the belt which was attached to the jacket.

‘I asked the defendant about that. All three of us were present. The defendant told me that he only meant to scare her. The defendant was a man of few words. He replaced the gas cylinder. I said to the defendant he had to switch off his telephone, he shouldn't let his wife hear that he had telephone calls. I told him that he should lead a happy life with his wife and not quarrel with her. The defendant said, “It's just something between husband and wife. We will soon patch things up.” They closed the door. I heard nothing further. They were still quarrelling but I couldn't hear the conversation. I stayed overnight. On the 16th, I went out as usual and returned home. She was getting changed to go out. That was some time around 8.30 am to 9 am. It was the same day she died. The defendant had already left and Siu-kin was preparing to go out. Siu-kin left and later I also left. That was the last time I saw Siu-kin alive.’

That was the day [PW10] went to Tsui Hung and took a bus to Tseung Kwan O. After that, she describes coming back to the flat. She saw the stool in the living room was knocked over and the fruit peelings were placed in the kitchen not in the litter bin. Her suspicions were aroused when she could not open the bedroom door and her sister was not at the flat so she decided to have the lock broken. After that, Mr Chu came, broke open the door and the body was found. We have other evidence in relation to the finding of the body.

So a very important area of her evidence is the evidence of what happened immediately prior to the day of the killing. … She confirmed that Siu-kin [the deceased] used to wear a rucksack. She said that the defendant had no money, though she said that she was sure that Siu-kin had money. She said:

‘The defendant didn't tell me from where he got the money. On return, I saw the stool knocked over. It was a round, folding stool. I'm sure it was knocked over. The living room was not tidy, banana skins were not in the bin.’

So her account of the room being untidy appears to be confined just to the stool and to the banana skins.”

15.The judge dealt in some detail with aspects of the cross-examination of PW10 including the suggestion by counsel for the defence that both PW10 and the deceased were working in Hong Kong as prostitutes.  The judge said:

“It was put to [PW10] that she came to Hong Kong to make money as a prostitute but she denies working as a prostitute. She said she did not know about her sister doing that and suggested that her husband probably would. It was put to her that her sister was arranging prostitution and she said that she did not know that. She does not deny it. She just says she does not know.

She was challenged as to whether the incident had occurred about the defendant kneeling down and begging her to bring her sister back home again, but she was adamant that she had been asked to do that by the defendant. …

It was put to her that she was attempting to blacken the character of the defendant to substantiate the charge against him, and she denied that as well.”

16.PW10’s evidence about the applicant’s visits to Shenzhen was summarised as follows:

“[PW10] said that, on occasion, the defendant had been present when her sister had complained about the fact that the defendant had a woman in Shenzhen. She was aware that the defendant was going off to Shenzhen. In that regard, you might just like to look at - not now, I will just refer you to it, PB3, which are the records of the trips to Shenzhen. This list of movements runs from 21 September to the time the defendant left Hong Kong on the 17th. On the first page, there are about 10 occasions on which he travels to Shenzhen between 21 January 1997 and 5 March. Most of those are for overnight stays, a couple are for two or three nights.

On the second page, there are a further nine trips between 5 March and 19 March. Most of those are overnight, except for one or two nights' stay. Then from 19 March 1997 to 21 November 1997, there are another nine. Here is the five nights' stay. Most of them are overnight; some of them are for two nights. Then from 23 November 1997 to 17 December, there is one overnight stay, and then, on the 14th, there are two same-day visits, two return trips took place on the 14th.”

17.The third matter, which might also have had a bearing on the question of motive, related to evidence given by the applicant’s landlord, Mr Lui, who visited the flat from time to time to collect the rent.  He had seen a woman who the applicant referred to as his wife.  She was, he said, dressed “rather sexily”.  He had also seen other women at the flat on one occasion.  This created a sufficiently strong impression in his mind for him to have warned the applicant not to carry out illegal activities at the flat.  He had in mind prostitution or overstayers and those who had illegally entered Hong Kong when he spoke to the applicant on this point.  He had never thought that the lady the applicant called his wife was a prostitute but he said he felt embarrassed on an occasion he had tried to collect the rent when she scolded the applicant and told him he was “useless”.  He noticed, also, that the applicant’s temperament changed over time to someone who had become dull and sullen.

18.More was to emerge in the course of the defence case about the way the deceased may have been earning a living.  We will return to this in due course.

19.Turning to the video-recorded interviews of the applicant, conducted shortly after his arrest, we can adopt in large measure the summary provided on the respondent’s behalf.

20.In his first interview, the applicant described what he claimed had happened on the morning of 17 December 1997.  The applicant said that he was provoked that morning by a man who repeatedly called the deceased on the landline telephone number after they arrived back at the flat together after taking breakfast. 

21.Pausing here, one of the findings of the pathologist, which it is appropriate to mention at this stage, was that no food was found in the deceased’s stomach contents.  The stomach was practically empty.

22.Returning to the first interview, the applicant told the police that he snatched the telephone from the deceased and hit her face with the palm of his hand.  When the deceased retaliated by picking up a chair to hit the applicant, he warded off the chair with his left hand and then, as the applicant described it, he “forked” his wife’s throat with his right hand.  The deceased kept on kicking at the applicant but then she lapsed into unconsciousness.  The applicant told the police that he became scared when he noticed that his wife was no longer moving.  He carried her to the bedroom and attempted to resuscitate her. When this failed, he covered her with a blanket and later took a belt from an article of the deceased’s clothing and tied two circles or loops around her throat with the belt.  The applicant then took his Home Visit Permit and went to the Mainland.

23.The applicant told the police that he had killed his wife by accident and had left Hong Kong immediately because he did not know for how long he would be sentenced to imprisonment.  The applicant said that he sold an apartment in the Mainland and used those funds to support himself.  He later worked in quarries for four years and after that he worked in a plastics factory for three years.  He also worked for a time in Macau.

24.When summing up in regard to this interview, the judge stated that the applicant veered:

“… between saying that he did not have the intention to kill his wife and that he was provoked into killing her”.

The judge also reminded the jury that Dr Lai had conceded that he was unable to exclude the applicant’s claims of “forking” as a medical possibility.  It was left to the jury to decide what actually happened, including whether there had been any preliminary “forking” by the applicant of the deceased at all.

25.The judge not only made reference to the applicant’s attempt to paint a harmonious picture of events on the morning of 17 December 1997 such as by saying they had taken breakfast together at a cooked food stall which the post mortem findings seemed to contradict, but also to his account of purchasing the morning newspaper to take home to read.  The only recent newspaper at the flat was found in the living room, dated 16 December 1997, the day before the incident.  This newspaper bore the handwriting of PW10 who testified that she had made those entries on 16 December 1997.

26.In his second interview, the applicant went into greater detail about the events at his flat on the morning of 17 December 1997.  He said that he was provoked by four calls from a male caller and he grabbed the deceased by the neck and held her until she did not move.  He claimed that he had held the deceased’s neck for five to six minutes and that he had done this because he was very angry and emotional.  He described the deceased as wearing high-heeled shoes.

27.However, as the judge reminded the jury:

“… She was wearing in fact boots with a thick heel and a rounded toe and the boots were unmarked.”

The judge continued:

“[The defendant] has described this return after breakfast as being quite quiet and friendly.  She was watching television, he was reading the paper.  He does not explain why she was wearing her rucksack, apparently, while she’s sitting there, watching television …”

28.The applicant claimed that he used two loops and a knot to tie the belt around the deceased’s throat because he wanted to make it look like a robbery and he feared that his fingerprints would be on the deceased’s neck. 

29.On this aspect of the case, the judge commented:

“You might find that rather improbable because of the way nothing was disturbed and the way the money and items of value were left intact.  So if he did intend to make it look like a robbery, it was not a very convincing attempt.”

30.In the second interview, the applicant also spoke about “old quarrels” he had had with the deceased and he said that after divorce had been mentioned, he told the deceased:

“If you don’t – don’t want to do it with me, we’ll die together in due course.”

As to this remark, the judge observed:

“It’s not clear whether this is a threat, or whether he’s foretelling of what’s going to happen, or whether it’s a suggestion that they had a suicide pact.”

31.The applicant told the police that he had no motive or reason for killing his wife and he then gave a different description about how long he had pressed the deceased’s neck from the account he had just given.  The judge remarked that he said:

“‘… I just pressed her a few times and she became not alright.’  That is different from the account that he gives of forking her throat for five to six minutes.” 

32.The third interview was a reconstruction of the incident arranged by the police in which the applicant had agreed to participate.  As to this, it is plain that the jury rejected the applicant’s attempt to downplay his use of the belt which had been knotted so tightly that it had to be cut with scissors.

33.The fourth and final interview was conducted at the applicant’s own request a day after the reconstruction.  This time, he proceeded to give more details about how his wife had been engaged in prostitution.  The prosecution suggested that this was done either to make a stronger claim that he was provoked into killing her or to weaken the evidence of the deceased’s sister (PW10) as he was aware at that stage that PW10 had given a statement to the police which was likely to be in conflict with his own version of events.

34.The judge observed, in regard to the final interview, that the applicant appeared to introduce new material into his account.  Having repeated that he had no motive or reason to kill his wife, he then developed in greater detail what, as the judge expressed it:

“…might be considered an exculpatory account of what happened.”

The judge observed that a lot of the material in the last interview had never been mentioned by the applicant before and she continued by saying:

“… His allegations appear to become wilder and more serious and more detailed as he goes through this particular interview.  He denies having a girlfriend.  He says he could not afford one, although he does not explain why …”

A little later, the judge observed of the applicant that:

“… he talks about the deceased standing up and grasping his face, apparently retaliating.  He has not mentioned that before in any of his earlier interviews.”

Later again, the judge said:

“… He says he thought the relationship was a good relationship and this is despite, by this time, his suspecting that she was a prostitute.”

Defence case

35.The applicant did not give evidence, relying instead on the accounts he had given to the police.  When summing up, the judge said:

“Here, although the defendant has chosen not to give evidence in court, he did, as you know, surrender voluntarily to the police. He also admitted in his video interviews and the video reconstruction that he killed his wife and explained in detail how and why he had done so. He did not have to give the video interviews because he had the right to remain silent. However, because he did give them and took part in the video reconstruction, it does mean that you have heard what he had to say about the killing, even though he has not been questioned by the prosecution about it.

The prosecution does not accept that the accused told the whole truth in those interviews. They pointed out to you what they say are lies about the events. You are entitled to consider the various explanations given to the police by the accused, bearing in mind that there is no obligation on him to prove anything at all in front of you. He is not required to prove his innocence. As I told you, the burden remains on the prosecution throughout to prove that he is guilty.

It is a matter for you [to] consider the explanations he gave and decide what, if any, weight you should give to them. You may feel that his denials or excuses are not to be relied on, in particular because they have not been repeated, on oath, in front of you and he has not been cross-examined about them. You may find that some of his admissions, for example, where he accepts the blame for some action, can be relied on. If, after considering what he has said in those interviews, you find that his explanations are true, or might be true, then he has succeeded in casting doubt on the prosecution case and, in that case, it is your duty to acquit him.”

36.A little later, the judge said:

“The prosecution put these video interviews and the reconstruction before you. As I said, it does not mean that they accept the explanations given by the accused are true. It is submitted that the accused gave untruthful or misleading explanations of certain matters: that he tried to blacken his wife’s name to support his claim that he was provoked into killing her; that he deliberately omitted some information; and that remorse for killing his wife was not the motivation for his return and his admission of the killing, but because he was tired of life on the run in China and wanted to see his family again. The defendant has chosen to adopt those statements as his evidence.

It is a matter for you to assess the content of the statement as a whole, both in the context of the circumstances in which they were given and also in the light of what each counsel has submitted to you about the content of those statements, as well, of course, as in the light of the evidence as a whole, the evidence given by the witnesses. …”

37.The defence called a single witness, Mr Chan, whose testimony the judge summarised in this way:

“The defence witness was, as you know, Mr Chan. He talks about what happened in mid-1996 when he received the call, made an arrangement to meet a girl and found that it was the deceased who was the person who had brought him the girl. He did not pay any money to her, he paid money to the girl and he paid for the hire of the premises where the intercourse took place. Then later, he made a second arrangement about the same time, or not long afterwards, with the woman and again it was the deceased who attended and brought the girl to him. So if that was the case and if you accept his evidence, it appears that the deceased was engaged at least in pimping, if not involved in prostitution directly herself.”

Jury’s questions

38.There came a time during the jury’s deliberations when they informed the judge that they had “a few questions”.  These were eventually reduced into writing.  We are, in these proceedings concerned only with the first of the questions asked by the jury which was in the following terms:

“Q1   some of us concern that what is the motive or reason of the Accused if he intended to kill, is it relevant that the jury must find such motive or reason?”

39.The reply given by the judge was as follows:

“We’ve discussed your questions. In respect of the first question, I would remind you that the question of the motive or reason for killing is not something you have to concern yourselves with. What you have to be satisfied of is what the intention of the accused was at the time he killed the deceased.

And I've told you, in this statement of the definition of ‘murder’ that you were given, you have to be sure about three things: that the accused committed the act or acts which caused the death - you probably don’t have any problem with that; that the killing was unlawful; and that, at the time of that act or acts which caused the death, the accused either intended to kill her or intended to cause her serious bodily harm.

But if you're not sure of any one of those ingredients, then the accused is not guilty of murder and you'll go on to consider the question of manslaughter.” (Appeal bundle pp. 819-820)

The ground of appeal

40.Mr Ross submitted that the direction on motive, by way of the reply the jury were given to their question, was in error in that the jury should have been told that the “absence of a motive was relevant in determining whether the applicant intended to kill the deceased”.

41.When Mr Ross developed this argument in his written submissions, he placed reliance on two authorities in both of which there was an established absence of motive.  In the first, R v Sharmpal Singh [1962] AC 188, the defendant was convicted of the murder of his wife.  There was, to adopt the phraseology of the Privy Council, “a complete absence of motive”, as all the evidence revealed a “new and happy” marriage.  Equally in Griffiths v R [1994] 125 ALR 545, a 16-year old schoolboy killed his best friend and was later convicted of manslaughter.  The High Court of Australia stated (at page 548):

“In so far as the evidence failed to disclose a motive for the appellant to kill [the victim], it was right to say that the Crown did not have to prove the existence of a motive to kill or to do grievous bodily harm.  However, in this case the evidence pointed to an absence of a motive.  That was a factor which was relevant to the jury’s determination of the appellant’s guilt of manslaughter:  See R v Sharmpal Singh. …”

42.Mr Ross argued that the evidence in the present case revealed a relationship between the deceased and the applicant which was generally harmonious, with a positive suggestion to that effect coming from the replies given by the applicant in his interviews.  As to this, Mr Ross was able to point to some evidence to support the contention that the marriage was sometimes harmonious but, equally, there was strong evidence to suggest that at times it was acrimonious.

43.In our opinion, this was not a case in which the jury had to be directed that the absence of a proven motive on the applicant’s part for killing the deceased was a factor to be considered in his favour.  That would have applied only if the evidence as a whole suggested that he had no reason to kill the deceased.

44.Here, the applicant had actually spoken to the deceased on the subject of death resulting from the state of their relationship and, depending on the extent to which PW10’s evidence was believed by the jury, the applicant had even spoken a day or so before the killing about a belt with which to strangle the deceased in order to “scare” her.  This was not the kind of harmonious relationship between two people envisaged in Sharmpal Singh or Griffiths. In those cases, not only was any motive for killing absent altogether but there was also positive reason to believe that the appellant in each of those cases would not have intended to kill.

45.Evidence of motive, on an allegation of murder, is admissible to show that the defendant on trial is more probably the killer than anyone else.  If such can be shown, it is evidence which plainly strengthens the case for the prosecution.  Equally, if the evidence is all the other way, and there is not only no motive but every reason to believe that the defendant could not have intended to kill the victim, it is a factor which will considerably weaken the prosecution.  The facts in the present case fell into neither of these starkly contrasting categories.

46.The situation with which we are presently concerned was touched upon in De Gruchy v R [2002] HCA 33 (and [2002] 190 ALR 441), where the High Court of Australia (at 446-447 in the latter report) expressed in clear terms how the issue of motive should be approached.  There, it was stated that:

“[29]  Although absence of motive is relevant, the appellant’s argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive.

[30]   The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of ‘positive significance’, either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive.

……

[32]   Neither prosecuting counsel’s reference to a disturbed mind nor anything else in the case required any specific direction with respect to motive other than that motive was not an essential element of the crime charged and, thus, did not have to be established by the prosecution.  Indeed, had the trial judge gone beyond that, it would have been necessary to direct the jury that there was no evidence of motive on the part of the appellant, rather than an absence of a motive on his part.  Such a direction would not have assisted the defence case.”

47.Later in their judgment, the court in De Gruchy provided guidance as to when it may be appropriate to give directions to a jury about motive which we adopt.  The following was stated:

“(1)    No general direction can be formulated to accommodate all the different circumstances that can arise. If any directions are given on the subject of motive, they should be brief because the consideration of the relevance of motive (or lack of it) is quintessentially a task for the jury, viewing questions about motive on the context of the evidence as a whole.

(2) Where the prosecution has not sought, or has failed, to prove a motive on the part of the accused for the crime, the judge may consider whether it is appropriate to make it clear to the jury that the prosecution has no obligation to show a possible motive, and that the absence of a proved motive cannot as a matter of law be fatal to its case. Sometimes the precise motives of individuals (if any) will never be known to anyone other than themselves. In such circumstances, it would be completely unreasonable to require the prosecution to prove a motive and the law does not impose that obligation.

(3) Where a motive of some kind is proved by the evidence, but it appears a trivial one, disproportionate to the crime alleged, it may be proper for the judge to draw such disproportion to the notice of the jury, in fairness to the accused, given that ‘[t]he stronger the motive the more influence it is likely to have [on the jury]’ On the other hand, the judge may also point out that proportion in such matters will sometimes be absent. To reasonable and law abiding citizens many serious crimes appear to have been committed upon trivial motives, wholly disproportionate to the gravity of the wrong.

(4) Where the prosecution has established strong evidence of a motive, it will often be necessary to warn the jury that they must look at all the circumstances of the case and not be unduly affected by the evidence that the accused had a motive to commit the crime. This is because of the fact that many who have powerful motives to offend never do so. Motivation is simply one item of the evidence in the case that may tend to show that a particular person committed an alleged act. The jury may therefore need to be reminded that allowance should be made for the fact that having a motive, and even expressing it, does not, as such, constitute proof of involvement in a crime.

(5) Where there is no evidence that the accused had a motive to commit the crime alleged, that is ‘always a fact in favour of the accused’. There is some authority to suggest that a trial judge need not draw that fact to the notice of the jury. However, especially in circumstances of a heinous crime, if a judge gives any direction about motive, it would generally be fair and prudent to draw to the jury’s notice the absence of proved motive as a consideration favouring the accused. As Griffith CJ observed: ‘the more heinous the act … the more important becomes the question of motive.’ If none is proved, that is a consideration that the jury will need to weigh in judging whether the prosecution has proved the guilt of the accused to the criminal standard.

(6) Nonetheless, if any such comment is made, it should be balanced by drawing attention to the obvious fact that, in a particular case, ‘there may be a motive, and perhaps a strong one, but no evidence of it available’. In Pointer v United States [151 US 396 (1894) at 414], the Supreme Court of the United States put it this way: ‘The absence of evidence suggesting a motive for the commission of the crime charged is a circumstance in favor of the accused, to be given such weight as the jury deems proper; but proof of motive is never indispensable to conviction.’”

48.Returning to the present case, the judge’s directions to the jury about motive were brief.  Early in the summing up, the judge said:

“In respect of motive, there have been hints throughout the trial of a girlfriend in Shenzhen and the alleged quarrels that occurred about that.  That is a possible motive. Again, you do not have to concern yourself with that matter.  What you have to concern yourself with is the question of intention.”

49.In the circumstances, we consider that the judge, by keeping this direction extremely brief, had been as fair to the applicant as she could be.  Such motive as the applicant may have had to kill the deceased was given no emphasis at all.  However, neither was this a matter in which an absence of motive had been established on the evidence.

50.The somewhat late addition by Mr Ross to his argument that the applicant had “lost [his] chance of acquittal because the directions on provocation were undermined by the direction on motive” at the stage when the judge answered the jury’s first question was, with respect, misconceived.  Provocation, as a partial defence to murder, had been fully explained to the jury and, rightly, no criticism of those directions is made in these proceedings.

51.In our opinion, the directions as to motive given by the judge were well within her discretion to give having regard to the circumstances of the case.

Conclusion

52.Accordingly, this application is dismissed.

Mr P S Chapman, SADPP and Ms Laura Ng, SPP, of the Department of Justice, for the Respondent.

Mr Phillip Ross and Ms Debora Poon, instructed by Messrs Peter K H Wong & Co., assigned by Director of Legal Aid, for the Applicant.