HKSAR v. Ho Hoi Shing

cacC 359/2008

in the high court of the

hong kong special administrative region

court of appeal

criminal appeal no. 359 of 2008

(on appeal from hccc NO. 172 of 2008)

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BETWEEN

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Before: Hon Yuen JA, Hartmann JA and Saw J in Court

Date of Hearing: 19 August 2009

Date of Judgment: 19 August 2009

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.On 16 October 2008, following a trial in the Court of First Instance before Mr Justice McMahon and a jury, the applicant was convicted by a unanimous verdict of the crime of murder and sentenced to life imprisonment.  He now seeks leave to appeal that conviction.

Background

2.On the morning of 24 April 2000, the body of a woman, semi-naked, was discovered in the store room of a seafood restaurant in Kowloon.  She was identified as Madam Chung Koi Wun, the sister of the owner of the restaurant and its chief cashier.  The cause of her death was manual strangulation, the estimated time of her demise being about two o'clock that morning.

3.The police suspected that the applicant was responsible for the killing.  Just two or three days earlier, after a number of years of service, he had been dismissed from his employment as a deputy manager at the restaurant and on the morning of the discovery of the body he had left Hong Kong via Lo Wu.

4.Some five years later, in July 2005, the applicant was returned to Hong Kong and surrendered by the Mainland authorities.  Upon his arrest in Hong Kong, the applicant admitted to the police that he had killed Madam Chung and gave his version of how it had happened.

5.At trial, the applicant elected to testify and, broadly speaking, gave evidence to similar effect.  The applicant said that he had been very distressed at his dismissal and on the night of 23 April 2000 he had returned to the restaurant hoping to get Madam Chung to persuade her brother to take him back into employment.  Knowing that she often slept at the restaurant premises, he had waited until the early hours of the morning until the restaurant was closed and had then approached her.

6.Madam Chung, however, had shown him no sympathy.  She had spoken to him in abusive terms, saying that one of the things she most disliked was people like him going out during working hours to bet on horses.  She demanded that he leave immediately or she would call the watchman.  Seeing that he still wished to plead with her, she had pushed him with her hands.

7.As the applicant said in the course of his testimony, he then became angry and pushed her to the floor.  Madam Chung, however, remained defiant, saying that she would never help him.  It was then, said the applicant, that he lost his senses and, kneeling over her, grabbed her around the neck.  Although Madam Chung struggled, he was, to use his description, in a “fit of anger” and continued to apply pressure with his hands until there was no further response.

8.As to his state of mind at the time of the killing, the applicant said that he had never intended to kill Madam Chung, that he did not know what degree of force he had applied to her neck as his mind at the time was a “complete blank”; he said that he was confused and did not know what he was doing.  When asked by the judge to explain what he meant when he said his mind had gone blank, the applicant said that he had lost control of himself completely.

9.The applicant said that, realising that Madam Chung was dead, he dragged her body to a store room and, for reasons which he admitted he could not fully explain to himself, he removed some of her clothes.  He then covered her body with tablecloths.

10.According to the applicant, seizing an opportunity which presented itself to him, he took a set of keys from Madam Chung’s body, using the keys to gain access to the accounts office where he was able to break into some cash boxes.  Taking what money he could find, he then fled to the Mainland.

11.As the judge directed the jury, although the applicant admitted killing Madam Chung by strangling her to death, it was his evidence that his state of mind at the time was such that he neither intended to kill her nor to cause her really serious harm and that accordingly he was not guilty of murder but only of manslaughter.  In the alternative, even if the jury was sure that he had the necessary intent for murder, he had been provoked into a fit of rage by the abusive manner in which his plea for help had been rejected by Madam Chung, that provocation reducing what would otherwise have been the crime of murder to one of manslaughter.

12.By contrast, it was the prosecution case that the killing of Madam Chung had been premeditated, that the applicant had waited until the early hours of the morning when he was able to confront her alone, that he had deliberately killed her and, taking her keys, had stolen the restaurant’s money before fleeing.

The grounds of appeal

13.Mr Marray, who has represented the applicant before us but not in the court below, has advanced just two grounds of appeal.  The first ground asserts a material misdirection by the trial judge as to the applicant’s state of mind at the time that he strangled Madam Chung, the second ground asserts a failure on the part of the judge to adequately direct the jury on the defence of provocation.

The first ground

14.In the course of directing the jury as to the elements of murder, the judge said there was no issue that -

“ … the [applicant] deliberately applied pressure to the neck of the deceased with his bare hands.  In other words, it is not disputed that the defendant intended to put his hands around the neck of the deceased and squeeze her neck.  In other words, it is not disputed that his act in that regard was an intentional act.  

Nor is it disputed that that act caused the deceased’s death….

So it may well be that you have very little difficulty in deciding this first matter, that is, that the [applicant] intentionally did an act, or acts, which caused the deceased’s death.  Nevertheless, even though this first matter is not in dispute in this trial, it is still for you to decide whether it has been proven by the prosecution.” (Summing-up pp 13-14).

15.This direction, Mr Marray has said, ran directly contrary to and materially undermined the applicant’s defence that he had no such intention.  In this regard, he emphasised the applicant’s testimony that, when he had climbed over Madam Chung and put his hands around her neck, he had been unable to control himself and that his mind at the time had been a complete blank.

16.In our view, however, this submission misunderstands the nature and limitations of the direction.

17.First, it is to be remembered that the applicant was asked by the judge what he meant when he said that his mind went blank.  To this question the applicant did not say that he lost all idea of what was happening or what he was doing.  There was no suggestion of a lack of a conscious mind.  The applicant remembered in detail what he had done, indeed he acted out a video reconstruction in which he demonstrated how he had knelt over his victim and strangled her.  He was aware of the nature of his acts.  In answer to the question, the applicant explained that, to say that his mind went blank, was another way of saying that he had lost control of himself; in short, that he acted under an uncontrollable impulse brought about not by some abnormality or disease of the mind but by anger.  In law, such acts are not involuntary; they do not amount to a defect of reason sufficient to negative intent: see Pang Bang Yee v R [1984] HKLR 298 (CA).

18.Second, the direction was limited to the objective issue of causation, to the fact that the applicant, by conscious volition, put his hands around the victim’s neck and applied pressure and that it was these acts, whatever the applicant’s true intent, which caused death.

19.Third, as the judge directed the jury in the clearest of terms, the fundamental issue was whether, when the applicant placed his hands around Madam Chung’s neck and applied pressure, the prosecution had proved beyond a reasonable doubt that his intention at that time had been to kill or to cause really serious harm to his victim.  In this regard, the judge reminded the jury of the applicant’s evidence that he had never intended to kill Madam Chung or indeed to cause her any harm and warned the jury that –

“If you think, as the [applicant] says in his statements to the police and in his evidence before you, that he did not intend to kill or to seriously harm the deceased, then you must find him not guilty of murder.”

20.In our judgment, therefore, there was no misdirection as to the applicant’s state of mind at the time when he strangled Madam Chung.

The second ground

21.The issue of provocation was central to the applicant’s defence.  But this was not a case, Mr Marray has submitted, where the evidence supporting a conclusion that the applicant was provoked was self-evident.  In the circumstances the judge was obliged not only to explain what amounted to provocation in law but to assist the jury by setting out those aspects of the evidence which may support the defence of provocation.  While Mr Marray has accepted that the directions as to the law concerning provocation were beyond criticism, he has complained that the jury were not appraised of the particulars of evidence which may support the defence of provocation until the end of the judge’s general summing-up of all the evidence given by both the prosecution witnesses and the applicant.  In the result, he has submitted, those aspects of the evidence capable of supporting the defence of provocation were unduly dispersed.  This failure, he has said, was compounded by the failure of the judge, when he did come to consider the applicant’s evidence, to highlight for the benefit of the jury those aspects of the evidence which may be relevant to the issue of provocation.

22.During the course of his submissions, Mr Marray has accepted that this is not the strongest point.  We agree.  Not only did the judge give a full direction as to the law of provocation he then went on to explain in the clearest terms the task facing the jury.  As he said:

“… when considering this question, you must take into account everything which was done and/or said according to the effect which, in your opinion, it will have on an ordinary person.  If you are sure that what was done and/or said by the deceased would not have caused an ordinary sober person of the [applicant’s] age and sex to do as he did, that is, strangle her, the prosecution will have disproved provocation.  Then, providing the prosecution has made you sure of the ingredients of murder, your verdict will be guilty of murder.  If, on the other hand, your answer is that what was done and/or said would, or might, have caused an ordinary, sober person of the [applicant’s] age and sex to do as he did, your verdict will be not guilty of murder but guilty of manslaughter by reason of provocation.

In considering whether the [applicant] was, or may have been, provoked into killing the deceased, you are entitled to take into account the background to the [applicant’s] attack upon the deceased, including his belief, if you find that to be so, that the deceased was instrumental in having him dismissed and the history of friction between them.  You take those matters into account and decide whether any such belief or friction existing between the [applicant] and the deceased may have made the [applicant] more prone to lose his self-control when he confronted the deceased….” (Summing-up pp 24-25)

23.The judge then went on in respect of provocation to deal with broader issues of relevance, for example, the evidence, or lack of it, concerning premeditation and the manner in which the jury should approach the matter of the applicant’s flight to the Mainland.  These directions lead to further specific directions as to the defence of provocation.  For example, the judge instructed the jury that, when they considered the question of provocation, they were, among other matters, to take into account the detailed nature and extent of the confrontation between the applicant and Madam Chung.

24.Importantly, the judge warned the jury that he would at a later time in his directions remind them in detail of the applicant’s evidence concerning that confrontation and this he did.

25.Each judge is the architect of his directions to the jury, each set of directions are tailored to best assist the jury as to the matters of law and fact.  In our view, there is nothing confusing in the directions given by the trial judge concerning provocation.  To the contrary, they were clear and full.

Conclusion

26.For the reasons given, therefore, the application for leave to appeal must be dismissed.

Mr John Patrick Marray, instructed by Messrs Haldanes, assigned by Department of Legal Aid, for Applicant

Mr John Reading SC, DDPP and Ms Jasmine Ching, SPP of the Department of Justice, for Respondent