Ng Kin-keung and Another v. The Queen

CACC000831/1982

BETWEEN

________

Coram: Hon. McMullin, V,-P., Li and Silke, JJ.A.

Date: 27th January 1983.

__________

JUDGMENT

__________

McMullin, V.-P. :

1. The appellants were convicted by a jury on two counts of murder and one count of robbery. It is undisputed that the deceased husband and wife, that is, Mr. Leung and his wife, were found dead in their flat on the 26th October 1981. They were bound hand and feet, the throat of each of them had been cut, showing a series of wounds of the gravest kind inflicted with a sharp instrument which not only cut the major vessels of the neck but also cut the windpipe and chipped some of the vertebra as well.

2. The 1st defendant was arrested on the 23rd November in Macau when he was in a pawn shop endeavouring to redeem a camera which he had pawned there. He was interrogated in Macao. and also later in Hong Kong when he was returned to this territory.

3. The 2nd defendant was arrested on the 1st December at a construction site in the New Territories and he too was interrogated. Both of the defendants at various stages thereafter made statements including confessions to the crimes charged, relied upon by the prosecution, which were admitted in evidence.

4. The defendants gave evidence. The second defendant's evidence amounts to an admission to being the cause of the death of the two deceased persons. He put before the court a story of having been assaulted by the female defendant.  In response he had disarmed her by seizing a chopper which she was endeavouring to use against him. He said that he had overpowered her and inflicted some injury upon her although he never went so far as to admit that he had inflicted the grave injuries which were discovered later. His evidence included the allegation that this had happened in the absence of the 1st defendant.

5. The 1st defendant also gave evidence and his evidence to a large extent coincided with that of his co-accused in describing how the affair had come about. The story was briefly as follows.

6. The first defendant had been acquainted with Mr. Leung, the male deceased, for some time and had indeed been introduced by the latter to the restaurant job in which he was then engaged. Leung owed him a sum of $4,500 which he had lent to him on a previous occasion. He had been contacted by the 2nd defendant who had fairly recently come to Hong Kong and, on the 25th, they had a meal together in the course of which they discussed their mutual difficulties. The 2nd defendant had hoped to borrow money from the 1st defendant but was told by the 1st defendant that he had none. Nor was there any available from the other companions of the 1st defendant who were present with them at the time.

7. The 1st defendant however mentioned the debt owed to him by Mr. Leung. At the 2nd defendant's instance the 1st defendant contacted Mr Leung at his restaurant and asked about the money. He was asked to come and see Mr. Leung the next day. That night the 2nd defendant spent the night with the 1st defendant.

8. On the morning of the 26th he and the 2nd defendant went to Mr. Leung's premises in Holland Street, which they had previously identified upon a former expedition in the area. They were admitted by Mrs. Leung and some conversation ensued between Leung and the 1st defendant. The 2nd defendant told the court that he did not understand Cantonese and a great part of what transpired was not made known to him. The 1st defendant mentioned the loan to Mr. Leung. Mr. Leung suggested getting him a government job. Mrs. Leung took part in this conversation and some documents were fetched which had relevance to that. Mr. Leung was agreeable to making the loan at this point and certain documents were produced including passbooks and cash withdrawal slips.

9. Mr Leung had gone into an inner room where his wife was and then there arose a quarrel. It appeared that Mrs. Leung took the view that the 1st defendant and his companion were causing trouble for her husband and there had been some trouble in relation. to her husband's job which was referred to She became very angry and abusive and was slapped in the face by her husband who then dragged her into the bedroom.

10. Thereafter the 1st defendant and Mr. Leung left the flat leaving the 2nd defendant there, the purpose being, as it was said, to keep an eye on Mrs. Leung in case she did something foolish.

11. The 1st defendant's account of the matter finished by his describing how he went to the bank, which was very close to the flat, in the same street, and how money was drawn by him upon withdrawal slips made out by him at the request of and in the presence of Mr. Leung.

12. These slips were produced later and they contained the signatures of both the husband and the wife and writing in the handwriting of the 1st defendant.

13. According to the 1st defendant, he parted from Mr. Leung after this money was drawn and he went off and had a meal and went to a cinema and returned home.

14. Lateron the 2nd defendant came there and he asked the 2nd defendant what had happened at the flat and he was told that nothing had happened. He gave the 2nd defendant $1,000.00 and was given in return two gold rings. He asked about the rings and he was told that these were rings which the 2nd defendant had previously purchased for a girl friend. They spent the night together. On the following day, the 2nd defendant saw the 1st defendant off to Macau, on his way to his home place in China.

15. The 2nd defendant said that after the departure of the 1st defendant and Mr. Leung, the wife had come from the inner room and had abused him verbally and then tried to make a phone call.  He thought she was making trouble and he seized the phone from her and thereafter she went to fetch the chopper and attacked him. She punched him and tried to strike him with the chopper and in fact inflicted the slight wound upon one leg. She also seized him by his private parts and he was in great pain. He struggled to free himself. He had managed to knock the chopper from her hand and in the struggle he managed to repossess himself of the chopper and being afraid that she would assault him again in the same way, he waved the chopper in her direction and she fell down. He was afraid she might attack him again so he bound her hands and feet. Then he found two rings upon the floor (It was part of the story of both the defendants that Mrs. Leung in the course of her angry outburst had taken off one ring and had thrown it upon the floor.) The 2nd defendant took up these two rings and was about to depart from the premises when Mr. Leung arrived and, seeing what had happened to his wife attacked the defendant with his fists and feet and then ran and got a chopper and returned to attack him with that. The defendant, the and defendant, managed to get the chopper away from him and because he was being throttled by Leung he was forced to strike him with it.' Leung fell down and he then tied his hands and feet and ran from the flat with the two rings and later joined the first defendant.

16. The pathologist who was called to the scene to examine the dead body of Mr. and Mrs. Leung was able to testify positively that the ligature found upon their hands and feet had been put in place prior to death. It was readily established that the many and ...(illegible) wounds which they had received would have caused their death in a matter of minutes. These are findings which were not, and indeed could not, have been challenged upon the trial. They made it abundantly plain, at least in the case of the 2nd defendant, that he had killed the two deceased while they were helpless.

17. The evidence of the 2nd defendant must evidently have been disregarded by the jury as being absurd and Mr. Payne who represents both defendants here has not sought to argue the case of the 2nd defendant inasmuch as the facts upon the record including the findings of the pathologist and the 2nd defendant's own admissions made in the course of his evidence have eliminated all possibility of defence by way of self-defence, provocation or want of the necessary intent.

18. The case of the let defendant was evidently also rejected by the jury. That that case too could hardly have beenoother than rejected in view of the extraordinary elements it contains-the manner in which the 2nd defendant was left, as it was alleged, with Mr. Leung's wife, to look after her, he being a total stranger; the fact that the withdrawal slips bore the wife's signature as well as Mr. Leung's signature disposing of the idea that she was hostile to both the defendants and had tried to drive them from the flat; the fact that he had accepted two gold rings from the 2nd defendant, a person who had, the previous night, represented. himself as penniless and in dire need of money; the fact that he gave an absurd explanation for blood which was found upon his shirts. That blood was never typed, it was too old for that purpose, but the explanation was that this was menstrual blood with which the shirt had become soiled on an occasion when he was with his girl friend. The manner in which this was said to have come about was scarcely coherent, let alone convincing. There was also the fact that there was a total difference between what he said in evidence and in statements which he had made after arrest.

19. Finally there was the very significant fact concerning a telephone call which the first defendant mentioned in his confessional statement. This call was made to the flat in Holland. Street at about 11:30 a.m. on the 26th. He referred to this in his statement as something which he himself was present to observe when it occurred, at a point of time which would have been, on the agreed evidence, about half an hour after the money had been withdrawn from the bank.

20. In his police statement he made a number of admissions. The account he there gives begins in much the same way as his evidence.

21. In it he tells how he encountered the 2nd defendant in much the same as he recounted it to the court. He refers to the debt owed to him by Mr. Leung. But then he goes on to describe how the 2nd defendant upon hearing about the debt, suggested that he would try and help him to get that money from Mr. Leung. He gives a description of how they went together on the 25th to try and find the place where Mr. Leung lived, and how, on the following day, he went in the company of the 2nd defendant and bought some nylon string and thereafter went to Leung's residence with the 2nd defendant.  He describes how there was conversation concerning the repayment of the debt which was unsatisfactory and how, upon a prearranged signal given to him by the 2nd defendant while the two Leungs were present together with him in one of the rooms of the flat, the 2nd defendant, who had briefly absented himself and returned, produced a knife and threatened the two Leungs. Mr. Leung was asked to pay the money. There was discussion with Mr. Leung about the large sum of money which the 1st defendant had supposed was in Mr. Leung's possession and which had indeed been the inspiration of this venture. Bank passbooks were produced which did not seem to show a very considerable sum, in fact something under $4,000.00, but according to this account the 1st and 2nd defendants having gone thus far were prepared to take this money. They got the bank slips signed by, the wife and the husband. These were the withdrawal slips which had been obtained prior to the entry into the flat upon a visit to several different banks. When these had been signed the first defendant was about to leave when the 2nd defendant suggested that the Leungs should be tied up, He agreed to this. Mr. and Mrs. leung were tied up and certain remarks were made to the general effect that the 2nd defendant would not be kind to them if the money was not forthcoming. The arrangement, apparently, was that the 1st defendant would go down with the necessary documents, get the money and that before returning to the flat he would phone and announce that he had got the money.

22. He did get the money from the bank and tried to phone but was unable to do so and then returned to the flat. He said that when he got back to the flat he discovered that Mr. and Mrs. Leung had been dispatched by the 2nd defendant and were already dead. He found the 2nd defendant washing his hands and he decided that they had better get out quickly. They went together and boarded a bus and later a taxi and then went together to the home of the 1st defendant.

23. The following day, according to this account, the 1st defendant went to China via Macau, having taken the finger rings with him. These rings were later pawned by him in Macau. That, in outline, is what he told the police. The statement was made the subject of challenge in court and was eventually admitted.

24. The Crown was relying upon this statement for the admissions that it contained. Clearly the body of evidence upon which the jury convicted was the circumstantial evidence to which I have referred and also the admissions made in the course of the statement.

25. The objections to these convictions are contained in the Grounds of Appeal presented by Mr. Payne on behalf of both defendants. Although, in effect, he has been unable to urge the case of the 2nd defendant on the facts which I have recounted, he asks that the objections which he makes should be held generally in support of the appeal of the 2nd defendant as well insofar as that may be prescribed.

26. Firstly he objects that the judge in the course of the summing-up made a comment which, it is said, may have caused the jury to give an undue weight to the Judge's opinion. What the Judge said was:

"But of course if you do think that I have a view and it co-incides with yours, then of course you would probably feel a little bit more confident about having formed that view yourself independently. But if you did not have that view, if your own impression was not in accord with the one that you thought I was expressing, about a witness, or about any inference to be drawn from his evidence, then you would ignore that view that I expressed unless it persuaded you using your own common sense to adopt my particular view.  But if it did not have that effect, then you are duty-bound in accordance with your oath to ignore the view which you think I have expressed, or which I have in fact expressed."

27. The reference there to his own view is said to have unnecessarily weighted that direction so that if the jury were tentative about their findings in respect of either of the defendants they might have resorted to the Judge's opinion as a matter clinching the view that they took. We do not think there is substance in this objection. Perhaps the reference to feeling a little more confident if they adopted his view was unhelpful and unnecessary but we are satisfied that read as a whole, and in particular in conjunction with a number of other directions given by the Judge at various places in the Summing-up, what was there said was unobjectionable and cannot have unduly influenced the jury. The Judge did tell them on a number of occasions that the facts were for them and that if they did not accept his views they were entitled to reject them.

28. This ground is urged in conjunction with a further ground as to the strong opinions expressed by the Judge, which are said to have been to the prejudice of the appellants, in the course of dealing with the evidence generally.

29. The second ground is that the Judge misdirected the jury in respect of the matter of such inferences as they were entitled to draw. What he said was:

"Again in drawing inferences you use your common sense and your knowledge of the world to decide whether the existence of fact A can only co-exist because fact B has been proved, just as simple as that. But that is a typical jury function and where I might suggest that there is an inference to be drawn from a fact, again you don't draw that inference unless your common sense tells you "Yes, that is the inference which I also draw."

30. This direction is said to be dangerously misleading, as it may have led the jury to draw inferences in favour of the Crown where such inferences were not inevitable. Mr. McNamara concedes that the matter might have been better expressed. It is preferable when giving the jury a direction upon what inferences may be drawn from accepted facts that the prescription of Lord Diplock in Khan Hing Bong [1979] H.K.L.R.I should be followed. This is to the effect that an inference should not be drawn unless it is the only reasonable inference that can be drawn. We think  however that construing the passage closely, it is evident that that is what the Judge has done when he puts it that they should only draw an inference if it Is done on the basis that fact A can only co-exist because fact B has been proved. He is virtually saying that they can only draw the inference if it is the only inference which can be drawn. It is however better that the clearer and simpler formula be used.

31. Then it is said that the Judge in summing-up on the facts criticised the evidence as to the 1st defendant's statements in such a manner as to exceed the limits of proper comment. The defendant had given evidence as to how he was ill-treated by the arresting officers when he was seized in Macau. The Judge referred to this evidence in a tone which was generally sceptical. We think however that the evidence did justify that manner of comment to a great extent. He referred to the fact that there were various immaterial matters put down by the recording officer which might seem to ill accord with the idea that the police were concocting a statement. Again, he commented that, on the defendant's account of how he had been treated, it would be surprising if he was in a position to make such a coherent statement, and in particular to make the logical and sharp distinction upon which he had insisted when making the statement between the use of the word "killing" as against the use of the word "murder" in one part of the statement.

32. All of this though sceptical in tone did not, we think, exceed the limits of proper comment. Counsel for the appellants does not suggest that by itself that ground would be enough, but he asks that this should be joined together. with the objection made in the first Ground, which I have already dealt with, and that it also should be taken together with the final Ground which is that the Judge failed to put the Appellant's case as to the events of the 26th October properly or at all before the jury.

33. On this latter point it is said that the judge failed to remind the jury that the two defendants had given evidence on affirmation that this appellant was not present at the time of the killing of either of the victims. It is true that the direct reference to the defence, what one might call the specific direction upon the nature of the defence, is within a very small compass, where the Judge says:

"So the 1st and 2nd accused have given evidence and their evidence is that there was no such plan, that there was no plan, no plan to use violence. So if you believe that, the 1st accused is not guilty, if you disbelieve them, he is not necessarily guilty. If you disbelieve them, you have to consider the evidence which you do accept, to see what inferences you draw. To see whether you draw one or other of those inferences, or they are not available at all."

34. We think however that Mr. McNamara's answer to this objection is sufficient. He has pointed out several other places in which, in dealing with one or other aspect of the evidence of the 2nd defendant, the Judge does so within a context of fact which necessarily reminds the jury that the 1st defendant's case was that he was not present when either of the killings occurred.

35. In particular, at p.262 of the record, we find the following direction. It is a direction in relation to the robbery charge but its purport is general.

"The 1st accused says that he went to the home merely to discuss a money problem which existed between himself and Leung, and that Leung accompanied him to the bank. If you accept what he says about that, there was never any robbery. The worst that could be said against him, if you accept that his story is that he received the two rings from his confederate, and he pawned them. Since he received them on the day that the 2nd accused said he took them, and he said that in evidence, so you have got evidence by the 2nd accused in the 1st accused's case that the 2nd accused stole the rings. The 1st accused received them some hours later under circumstances which you may think, if that happened, he certainly knew they were stolen. In that event, if you came to that conclusion, if you found them not guilty of robbery, you would find them guilty of handling, but if you have any doubt about it you would give them the benefit of it and find him not guilty completely."

36. In that passage the jury are clearly reminded of the fact that the defendant said that he was not present at the time of the killings and there are other passages which appear at other places in the summing-up when, in dealing with the defence, the same understanding of the case of the 1st defendant must have been present to the mind of the jury.

37. Mr. Payne of course asks that these several points should be considered together and that giving them what weight we think proper, they amount to the fact that the defendant was deprived of a fair trials.

38. Taken singly or together we do not think that these objections amount to anything like so much. The evidence, both circumstantial and confessional, was of an overwhelming character as against the 1st defendant.

39. So far as the 2nd defendant is concerned, I have already commented on the fact. that only his evidence was in itself sufficient to establish that he had killed without lawful excuse. He too had made a statement which was admitted in evidence. In that he had alleged, that he had killed one of the two Leungs and the 1st defendant had killed the other. That was not evidence against the 1st defendant but it was certainly evidence, and damning evidence, against the 2nd defendant.

40. For these reasons the appeals of both the 1st and the 2nd defendants will be dismissed.

Representation:

Ian Payne (D.L.A.) assigned for both Appellants.

John McNamara for Respondent/Crown.