The Queen v. Yuen Kwok Hung

CACC000068/1984

BETWEEN

Coram: Hon. McMullin, V.-P., Li, J.A. & Power, J.

Date: 6th June, 1984

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JUDGMENT

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McMullin, V.-P. :

1. A young woman, So Pui-ha, lived in a flat on the 1st floor of Yan Wing House, Yan Tsui Court, Chai Wan.  The estate, Yan Tsui, it would appear, comprises two blocks, Yan Wing House, which is Block A, and Yan Wah House, which is Block B.  The defendant Yuen Kwok Hung was employed as a security guard by Universal Security Co. who supplied security officers for the Yan Tsui Court complex.  On the 20th of July, at 8:20 p.m., the defendant took over at Yan Wing House from another security guard called Shun Shing. His period of duty being from 8:00 p.m. on the 20th of July to 8:00 p.m. on the 21st of July. At some time between 8:00 p.m. and 11:00 p.m., under circumstances of which we know nothing, the defendant encountered the deceased, at the landing on the first floor close to the rear stairway of the premises, and close to the door of her flat.

2. It is not in dispute that she was attacked and overpowered by him; that he dragged her either from the lift or an area near the lift, to the back stairs where she was eventually found; that he overpowered her, removed all her clothing, and raped her.  It is not in dispute that he was the cause of the injuries which resulted on her death.

3. The cause of death was a ligature which had been applied around her neck.  She also had some injuries to the sculp, injuries from which there had been a fairly copius flow of blood.  There were some marks upon the walls of blood and a trail of blood to the place where her body was eventually found.  She was found lying on her back, naked, the head somewhat drooped down from the top-most stair of the flight leading from the first floor down to the ground.

4. She was wearing at the time of the attack a gold necklace and a watch. These were removed from her at the time of the assault.  A man called Tso Kwong-on, who was employed by the Universal Security Co. to organise security patrols, became, in some underclosed manner, aware that the defendant was not on duty that night, as he should have been, at Yan Wing.  He fetched another person called Heung Addey, another of the employees of the company, to take up the duty which should have been performed by the defendant.

5. Addey was fetched from the other block and taken by TSO to Yan Wing House where, upon the arrival, the defendant was found, seated upon a chair, without his shirt and showing blood upon his face.  They questioned him as to what had happened and he gave some story about having been attacked by several persons because of some affair with women.  He said that this had occurred in the street and it was a trivial matter.  He asked Heung Addey to phone his wife and to ask her to fetch some clothing to his work place by 7:00 a.m. or 8:00 a.m. the following morning.

6. He asked Heung Addey to sign himself on in the Register left at that place at 9:30 p.m. instead of 11:30 p.m., the time at which Heung had actually arrived at Yan Wing House, and to sign him - the defendant - out correspondingly at the sane time.

7. This Heung Addey did. The defendant then went off, and had a bath.  He then left and returned to his own home where he was seen by his father-in-law at about midnight.

8. A cleaning woman, Madam Leung, discovered the deceased's body sometime about 8:00 a.m. in the morning of the 21st. The police were informed and enquiries led to the discovery of the fact that the defendant had not been on duty and the company was informed of this and asked to watch out for his return.

9. On the 21st, the applicant did go to the Universal Company's headquarters and told them that he was resigning.  He gave as the reason that he had been attacked by certain persons and was in fear of them. By that time, the company had been apprised of the fact that the police were interested in his movements and he was detained there, in the company office, until the arrival of a couple of police officers who remained with him for an hour until a sergeant came, and subsequently an Inspector of police.

10. To the sergeant, he repeated the story that he had been attacked by certain persons and that he had resigned because his father-in-law had found for him an alternative occupation.  Eventually, however, somewhat later on the same day, to the Inspector, he made a statement. In that statement for the first time he admitted to having done something wrong.  He referred to the fact that he had dragged a girl by putting his are round her neck, stating that at the time that he did so, he felt that he was possessed by a ghost.  He said that he realised at a certain point that the girl had fainted and he returned home being very scared.  He went on to say that he had gone back to the company to return the uniform with the intention of surrendering himself to the police.

11. Thereafter he was taken to his own home and on the way there, he revealed to the police that the property taken from the girl had been disposed of by him by being put down the toilet.  This necklace and the watch and a lanyard from his uniform were eventually recovered from a drain outside the premises where the applicant was living.

12. He was charged with the murder of the young woman, So Pui-ha, with the robbery of her property and with rape.  He pleaded guilty to the rape but did not plead guilty to the robbery or to the capital charge.

13. He was prepared to tender a plea of guilty to manslaughter but that was not accepted and the case proceeded on the charge of murder.  He was found not guilty of the robbery but guilty of theft.  The jury found him guilty of murder by unanimous verdict. He did not give evidence at the trial.

14. Upon the application for leave to appeal, Mr. Bell, counsel for the applicant, takes two points. He says, firstly, that the trial Judge wrongly prevented the defence from adducing expert evidence of the defendant's state of mind and in particular of his intent at the time he committed the offence.

15. Although the defendant did not give evidence, a psychiatric expert, Dr. Singer, was called for the defense to give evidence as to the applicant's state of mind.  The doctor's evidence was to the effect that the applicant was suffering from a certain aberration or abnormality of mind which may perhaps most conveniently and shortly be referred to as a sado-masochistic tendency which he said, was of a regular or permanent nature.

16. At a certain point, it was sought, on behalf of the defense, to put a question to the doctor arising from something which appeared in the doctor's report.  Before I refer to that further, I should say that the doctor's opinion as to the mental condition of the applicant was based upon an interview which he had with the applicant and the only such interview. It took place at the conclusion of the prosecution case.  The doctor also consulted the statements which had been made by the defendant to the police and the depositions of witnesses who had given evidence at the trial.  He also took account of an interview with, or examination of, the applicant by another psychiatrist, Dr. Wong, who had examined the applicant on the evening of the 21st of July at the forensic laboratory. Dr. Wong told the court that the applicant had behaved strangely, when being examined.  He had claimed that the dead girl was sitting by the doctor and was staring at him.  He screamed and cried out that she was following him and made other remarks of the same general character. This was observed at the same by an Inspector of police who was nearby.  These were the matters which were taken into consideration by Dr. Singer in giving his evidence on behalf of the defense.

17. The question which counsel for the defendant proposed was in this form:  "Again on the basis of the hypothesis which I have put to you earlier and your findings concerning the condition of the defendant's mind, are you able to say whether at the time he raped this girl he would have intended to kill her or cause grievous bodily harm?"

18. Mr. Moorfoot who then appeared - as he has appeared today - on behalf of the prosecution, took objection to that question being put, and the Judge disallowed this question.

19. Mr. Bell asks us to say that the Judge was in error in not allowing the doctor to give an answer to the question so framed.  He refers to the ruling made by the Judge in which the trial Judge referred to a passage from Archibald and to the case of Chard which was cited in that passage.

20. Now it is clear that the passage upon which the Judge was relying is to the effect that such evidence should not be given since it directly tends to answer the question which is for the jury to decide, the question of intent.  Mr. Bell asks us to say that the present case differs from the case of Chard in as much as, in that case, it was not alleged that the defendant was suffering from an abnormality of mind, whereas in the present case, the doctor's evidence was that this applicant was suffering from such abnormality.  Again in Chard, he points out, the issue of diminished responsibility was not raised.  Nevertheless we are satisfied that the Judge correctly excluded this question, and any possible answer that might have been given to it, from consideration by the jury. We must reintegrate that the weight of authority is to the effect that a specialist witness may not be asked to decide the very question which it is for the jury to decide.

21. It is suggested that because the evidence showed that the defendant suffered from some abnormality of mind, the jury were thereby deprived of specialist evidence which would have assisted them in deciding that question.  We cannot agree that that is so.  Dr. Singer had given his opinion of the condition of this man's mind.  He did consider that he was not a normal person because of his curious sexual deviation. But the doctor also told the Court that he could not say that the defendant was suffering from the condition of diminished responsibility.  It was to that condition that the doctor's expert opinion was directed and it was his assistance in respect of that condition that had been sought by the defence. Once he had said that he could not be permitted to go on to assert that the defendant was not morally responsible at the time that he had committed the act.  It would have been quite wrong for the court to permit him to say that the defendant did not have the intent necessary to commit the crime charged.  The intent was the basic question which the jury had to consider. Since the doctor's evidence was that the applicant's condition was not such as to impair the power of his mind to achieve responsibility for his actions then, apart from any other considerations, it would be wrong to admit in evidence a statement directed to disposing of the question of intent - itself a function of the mind - when in the doctor's opinion the defendant's mind was functioning so well as to leave unimpaired his perception of what he was doing and his responsibility therefor.

22. The second point taken by Mr. Bell on the appeal concerns the alleged failure of the Judge to give a proper direction on the right of the jury to form inferences from facts proved before them. In the course of the Summing-up, the Judge used the following words:

"Perhaps I should explain that an inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence."

23. It is said that this is insufficient inasmuch as he should have advised them that they should not draw any inference unless that inference was the only inference that could reasonably be drawn. Counsel has relied upon the decision of the Privy Council in Kwan Ping Bong.  In that case, Lord Diplock, giving the opinion of the Board, said: "The requirement of proof beyond all reasonable doubt does not prevent the jury from inferring from the facts that have been the subject of direct evidence before them, the existence of some further fact such as the knowledge or intent of the accused which constitutes an essential element of the offence.  But the inference must be a compelling one and the only one that no reasonable man would fail to draw from the direct facts proved."

24. It is not denied that the Judge in the present case gave perfectly correct direction as to the standard and burden of proof and Mr. Moorfoot for the Crown has referred us to a passage on page 155 of the record where, in relation to the burden on the Crown and the jury's duty in relation thereto, the Judge said: "You must decide whether you think there is any other reasonable explanation for these injuries other than a deliberate intention to kill or to cause grievous bodily harm."  He suggests that the strength of that direction, and the clearness with which the necessity to draw inferences beyond reasonable doubt is put, cures any possible weakness that there may inhere in the initial directions which I have set out. In the case cited by Mr, Bell, Liu Bo Tai, Cr. App. 923 of 1982, a similar usage by a trial Judge was criticized and, although the appeal was dismissed, it was suggested by the Court that it may not be enough simply to say that an inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts.

25. That was obiter and it must be borne in mind that the circumstances of each case have got to be taken into consideration in respect of any alleged weakness in any such or similar direction.  The inference which the jury must draw beyond all reasonable doubt is the final inference of guilt.  This would seem to be the ratio of McGreevy v. DPP. (1973) 57 Criminal Appeal Report 429. It seems unlikely that Lord Diplock, in the later cases was purporting to lay down a different or more stringent principle.

26. Provided interim inferences are drawn which are reasonable, and provided the circumstances are such that it is clear that the Jury have, on proper directions, drawn the final inference beyond reasonable doubt, any such expression taken in isolation would never be enough to upset the effect of the Summing-up as a whole.

27. For these reasons we are not satisfied that anything has been shown in the course of the argument which would oblige us to disturb the verdict of the court below and the appeal must be dismissed.

Representation:

A. Bell (D.L.A.) assigned for the Appellant.

B. Moorfoot for Respondent/Crown.