HKSAR v. Du Yancan

CACC35/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 35 OF 2009

(ON APPEAL FROM HCCC NO. 219 OF 2008)

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BETWEEN

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Before : Hon Cheung and Yeung JJA and Saw J

Date of Hearing : 28 August 2009

Date of Judgment : 28 August 2009

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JUDGMENT

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Saw J (giving the judgment of the Court) :

1.On 21 January 2009 the applicant was convicted of murder after a trial before Madam Justice Barnes. 

2.He was sentenced to be imprisoned for life. 

3.This is his application for leave to appeal against conviction.  On 9 March 2009 a Legal Aid Certificate was granted to the applicant to prosecute this application.  Messrs Cheung, Chan and Chung Solicitors were assigned as was Mr Peter Cahill barrister.  Mr Cahill having considered the matter has declined to file grounds of appeal on the applicant’s behalf.  He is present today to assist the court if necessary. 

4.There are no grounds of appeal contained in the Notice of Application for leave to appeal filed on 3 February 2009.  

5.The applicant was convicted of the murder on 24 April 2008 of Lok Yuk Kuen (“Madam Lok”).  Madam Lok was his wife.  The particulars in the indictment alleged that the applicant murdered Madam Lok at the Rear Lane, Ground Floor, Chung On Building, Nos. 301-309 Sha Tsui Road, Tsuen Wan, New Territories. 

6.It was an admitted fact in the applicant’s trial that he, Madam Lok and their 12-year-old son lived at premises on the 5^th floor, Tak Fam Building, 20 Tak Wah Street, Tsuen Wan.  

7.Late in the evening of 24 April 2008 police officers had been instructed by their radio console to attend to a report of “injured person found” at the rear lane of Tower Pub which was located on the ground floor of the Chung On Building in Sha Tsui Road.  There they found the body of a badly injured woman who had suffered major head injuries and was covered in blood.  By the time the ambulance officers arrived on the scene shortly after this she was dead.  That person was Madam Lok, the applicant’s wife. 

8.During the course of a search of the area where Madam Lok’s body was located a blood stained 2-pound hammer was found.  This was subsequently determined to be, and this was not in issue in the trial, the hammer which had been used to inflict the injuries from which Madam Lok had died.  The evidence established that the applicant had purchased this hammer on 8 April 2008. 

9.A post mortem examination established that Madam Lok had suffered several concentrated blows to the head, some of which had been delivered after she had fallen to the ground.  By the time the matter came to trial there was no issue that it was the applicant who had delivered the blows to Madam Lok’s head with the hammer.  It was an admitted fact that the call to the police to alert them to the presence of the body of Madam Lok in the laneway was made from the applicant’s mobile telephone. 

10.A witness who lived in a nearby building to where the body of Madam Lok was found told of overhearing an argument between a man and a woman at about 9:40 p.m. on 24 August 2008.  The man’s voice, he said, was loud and angry whereas the woman rarely spoke.  The quarrel, he said, lasted 2 to 3 minutes, was then quiet for 2 to 3 minutes but resumed.  The man he described as getting more and more agitated. 

11.After the voices ceased he heard the woman exclaim “Ai Yah” twice.  It was about 5 minutes after this that he heard the sound of the siren of a police car or fire engine arriving. 

12.Another witness who worked at a nearby restaurant described how the applicant came rushing out of the lane where Madam Lok’s body lay claiming that his wife had been robbed and was lying injured in the laneway. 

13.Initially when interviewed by the police the applicant maintained the story that Madam Lok was the victim of a robbery.  However once police enquiries established that he had earlier purchased the hammer he admitted in video recorded interviews that he had attacked her with the hammer. 

14.In the video recorded interviews the applicant told the police that he had attacked Madam Lok on that night because she had nagged and cursed him to the point where he simply lost control.  He had told the police about earlier confrontations and friction between Madam Lok and himself which included references to his inability to provide financially for the family due to his ill heath and difficulties in their sexual relationship. 

15.The applicant elected to give evidence in the trial. 

16.The judge summarized the evidence of the applicant as follows :

“      The defendant gave evidence and told you how he found life difficult after coming to live in Hong Kong, how his wife, Lok, constantly nagged him and scolded him, made him feel interior when he could not satisfy her sexual needs.  He told you how he was annoyed when Lok made him go with her to buy fruit when he was tired after work.  The version he gave in court differed in some respects from the version he gave during the video-recorded interview.  I will refer to them in greater detail later.

In his evidence in court, while admitting he brought the hammer down from his home and later hit his wife with it, he said, when he took the hammer, his intention was only to scare her, not to hit her.  He described how Lok continued to nag him and scold him.  He said Lok suddenly pushed him over and his back was painful and numb when he fell to the ground.  When his wife lowered her head as if looking for something to hit him with, he used the hammer to hit her on the head.  He could not remember how many times he hit her.  He told the passer-by and the police that his wife was robbed as he was frightened and did not have the courage to face up to what he had done.”

17.In the trial the only real issue was whether the applicant had been provoked by Madam Lok so as to reduce the charge from murder to manslaughter.  The jury had been told that he had pleaded not guilty to murder but guilty to manslaughter. 

18.The summing-up commenced with an accurate and succinct statement of the issues for the jury’s determination.  The judge said :

“A lot of the matters relating to this case were either agreed or not challenged.  There was no dispute about the date, the place, the persons involved, the cause of death or the weapon used.  The main issue for you to decide is whether there was provocation, which is a partial defence reducing the offence of murder to manslaughter.”

19.Having given the jury clear and precise directions on the burden and standard of proof and the roles of the jury and the judge respectively, the jury were directed as to the elements of the charge of murder and the partial defence of manslaughter.  Those directions were tailored to accommodate the circumstances of this case and no exception can properly be taken to them. 

20.When providing the jury with a summary of the evidence the judge did so in a fair and balanced way.  She reminded the jury in some detail of the evidence of the witnesses who overheard the applicant and Madam Lok arguing that night (which was directly relevant to the partial defence of provocation). 

21.When reminding the jury of the applicant’s evidence she fairly emphasized that the applicant had a limited education, suffered from a spinal injury and had only recently arrived in Hong Kong from China and was at the time of the killing having difficulty adjusting to living here. 

22.The judge was at pains to emphasize that the applicant bore no burden of proof generally nor specifically with respect to the partial defence of provocation.  She said this :

“      You will appreciate that these allegations of nagging, scolding, being pushed over, losing control so he could not stand it any more, all came from the defendant.  But I must remind you, the defendant does not have to prove anything.  It is not for him to prove that he was provoked.  It is for the prosecution to make you sure that this was not a case of provocation.”

23.We have considered the summing-up and are satisfied that the directions given and the summary of the evidence cannot be criticized.  There is nothing in the summing-up or the matters raised by the applicant which gives us any cause for concern.  The application is refused. 

Mr John Reading SC, DDPP and Andrew Cheng, PP of the Department of Justice, for the Respondent

Mr Peter Cahill, instructed by Messrs Cheung, Chan & Chung, (to assist the court if required). 

The applicant, in person