Chow Suk-sang v. The Queen

CACC000950A/1982

BETWEEN

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

Date: 10 December 1982

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JUDGMENT

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McMullin V.-P:

1. Lai Tak-sum, a boy of 14 years, was abducted while he was on his way to school, at about 7:30 a.m. on the morning of the 5th January 1982. He was abducted by two men and taken to an area in the district of Shatin. He was there taken up a hillside sometime between 8:00 a.m. to 9:00 a.m. He received injuries at the hands of one of the men which caused his death. Death was caused, according to the doctor's evidence, by strangulation.

2. The boy's body was subsequently buried and on the evening of that same day, the father of the boy received a phone call, the caller demanded a ransom of US$200,000.00. The father recognised the voice of the caller as that of the present applicant, Chow Suk-sang. Chow Suk-sang was arrested on the following day and another man was also arrested. They were subsequently charged in one indictment with the murder of the boy and also with his forcible detention upon the same occasion.

3. The case for the Crown rested almost entirely upon a series of statements made by the applicant to the police on the subsequent days. It may be said that these statements commenced with what amounts to a denial of any complicity in the killing of the boy and an admission only of having demanded the ransom after the event. In subsequent statements, fuller details are given, and between 6th January and 11th January, there were various interviews in the course of which the appellant, according to the prosecution case, took the police to the place where the boy's body was buried. It was then recovered and it was subsequently examined by the pathologist with the result which I have already referred to.

4. The latest statement was taken on 11th January.  The Judge, in directing the jury, rightly referred to this as the statement in which the applicant came closest to a full admission of taking part in the abduction and killing of the boy. He pointed out however that none of the statements amounted to a full confession to murder

5. In that final statement the applicant repeated some parts of the story which he had given in earlier statements but he added significant details in the earlier statements he had put himself in such a position in relation to what was being done by his co-accused as would leave open the conclusion that he was not in the immediate vicinity when he observed his co-accused knocking the boy's head against the ground and subsequently using his arm around his throat to strangle him.

6. In the final statement however he said that he drove the vehicle in which the boy was abducted to Mui Tsz Lam Road in Shatin. The boy was being taken to a house which he and the other man had earlier decided upon as a place for detention. They found the door was locked when they got there. The boy as then taken to the back of the house. In his own words what then happened is as follows: At that time as there were dogs barking in the village, we were afraid that we might be discovered by people. Ming Chai, that is the other accused person, then took him uphill from the back of the house I at once drove the vehicle to a farther place for parking, after that I went up the hill from the back of the house to look for him. When I went up the hill I found that Ming Chai was grabbing him round (something in the statement then is illegible) beside the withered tree. At that time I asked Ming Chai what to do he, said ha didn't know. We said to the deceased: "If I let you go back can you promise not to tell your parents about today's matter?" Then I crunched him twice and threatened him that he would be beaten again if he spoke it out on return After that I said to Ming Chai to let it be as there was no other way Ming Chai then said what could be done if he spoke it out after he had been released. What should I do at that time if he were released Lai Tak-sum might be very frightened at that time and wanted to get off and Ming Chai grabbed him round tighter. At that time I did not know what to do. When Ming Chai got his hands off I saw Lai Tak-sum lied on the ground with blood at the corner of his mouth. I did not know whether he was dead or not at that time because I was very frightened. Then Ming Chai told me to touch him. I found that he had no reaction at all tong Chai then told me to go down the hill to drive the car back to the round junction. After I had driven the vehicle back I went up the hill and found Ming Chai had taken off his clothes, shoes, etc. Then we put leaves onto the body of the deceased and at once ran down the hill. Then I drove to Tai Wai. Ming Chai took away his school bag, got out of the vehicle and threw it away. Then I was told to throw away the clothes, shoes etc on the way. After I threw out all the clothes I returned home about 10 o'clock.

7. That is the material part of that statement which describes the immediate circumstances surrounding the death of the boy. The statement went on to say that later in the same day the applicant disposed of some of clothing of the boy by throwing it in a waste place beside the road and later at 7 o'clock, made the telephone call to the boy's father to which reference had already been made.

8. At the trial, following upon investigation in voir dire proceedings into the statements of the co-accused, Ming Chai, the Crown was unable to proceed further on these charges against him and he was discharged. The trial proceeded against this applicant only and the evidence consisted mainly of the father's testimony as to how the boy had left home and as to how he receive the phone call and, together with that, police evidence relating to the investigation which resulted in the arrest of the two men, the discovery of the body and some clothing and the charging of this applicant and his companion.

9. The father also gave evidence saying that he had been acquainted with this applicant for several years. They had in fact worked in the same firm at one time, both were drivers. There had been a series of meetings prior to this tragic event. Three of those meetings were in the month of December 1981 and the final one was on 4th January 1982, the day before the killing of the boy.

10. Upon the appeal, Mr. Payne takes two points (I will take what we regard as the stronger point first). He objects to a passage in the summing-up which is in the following terms: "But as Counsel has told you it is not murder if he just stood by and watched the boy being killed, provided he did not intend it and was not providing support and encouragement. But if this is what in fact happened, then that is not consistent with what the defendant has said in his last statement. He would have observed the whole process of strangulation and it also makes it extremely doubtful, you may think, that he had no intent to kill.,"

11. That passage came at a late stage in the summing-up. Earlier the judge had given full directions on the evidence to which no exception is taken. He had also given the customary warning to the jury that the facts were in their province solely and that comments by the Judge or counsel could be disregarded.

12. Mr. Payne nevertheless argues that in the passage which I have quoted, the Judge was effectively taking away one possible line of defence. Counsel puts the matter this way. He says that the statement and in particular those portions of it which I have already referred to did leave open two possible inferences to the jury. One was the inference that his participation was a full participation including an intent to stand over what was being done by the other man, and a thorough approval of what we then being done.

13. But there was another inference, Counsel says, which was open to them although the applicant had up to a certain point in the proceedings been a fully complying party to the abduction of the boy. His story which included an abortive attempt to enter the house where the boy was to be detained, and his parking the car some distance away while the other man took the boy up the hill and which concluded with an account of how he had punched the boy and thereafter saw his companion seize the boy and strangle him, left open, Counsel says, the possibility that what was done by the other man was a sudden intervening act which broke through any possible common intent which they may have had up to then.

14. It may be said that Counsel makes a point of substance here. The language used by the Judge at that point does suggest that he was telling the jury that the allegation by the applicant that he was not a party to the killing was not consistent with what appeared in the applicant's final statement. Mr. Jennings for the Crown concedes that that was not correct, and that in fact the statement does leave open the possibility, even if it was not a very strong one, that the applicant had been overtaken by events which had got out of control and to which he was not a consenting party.

15. Nevertheless we cannot think that that misdirection can have had the effect of leaving the jury under the impression that they were compelled to regard the statement end the allegation of innocence as mutually inconsistent. The direction must be taken, like all such directions, in the context of the surmning-up as a whole. The jury had been carefully instructed that standing by and mere observation would not be enough, and we think that in using the terms that he did, the judge simply omitted something that must clearly have been in his mind, that is, that the statement contained an admission by the applicant that he had assaulted the boy. That assault, even on the applicant's statement, must have occurred a very brief time before the strangulation. Immediately prior to the passage of which complaint was made, the Judge said: “But in this statement the defendant admits a much closer involvement with the boy. He admits threatening him and punching him which is consistent, as I said, with the medical evidence. He says he wanted to release the boy while Chan did not. Yet apparently he did nothing when Chan killed him. In other words he stood there doing nothing for at least one minute, may be longer. He says the next thing he saw was the boy on the ground with the blood in his mouth."

16. Those were the circumstances which were obviously in the Judge's mind when he referred to the inconsistency as he saw it between the statement and the claim of innocent presence put forward by the applicant. The final phrase "He would have observed the whole process of strangulation and it also makes it extremely doubtful you may think that he had no intent to kill" makes the whole purport of these directions clear. The observation of the process of strangulation taken with the fact the applicant had admitted assaulting the boy is there being put to the jury who are then told that those circumstances might leave them with no doubt that there had been an intent to kill.

17. Conjoined with that passage, Counsel takes exception to an earlier passage in the summing-up, where in dealing with the onus upon the Crown, the Judge said A doubt - a reasonable doubt is a doubt for which a reason can be given. I am not talking about a fanciful or whimsical doubt, something that would justify you in bringing in a verdict so you could all go home, you must be able to give a reason for the doubt that you have"

18. Mr. Payne takes exception to this direction and cites in support of his objection a passage in the judgment of Lord Justice Edmund Davies in the case of Stafford 1968 Crim. App. R., p.2. The trial Judge, in the case then being considered by the Appellate Court, had addressed the jury in the following way: "Remember that a reasonable doubt is one for which you could give reasons if you were asked.” The learned Lord Justice goes on to say: "We dislike such a description or definition." He added that in the circumstances of that case the topic had been clearly and accurately expounded and the jury cannot have been in any doubt as to the proper standard of proof.

19. We would not wish to introduce any further element of uncertainty into an area which has been sufficiently uncertain for some time. The present trend of authority would seem to favour leaving the idea of reasonable doubt to the good sense of the jury, but other expressions by ray of explanation continue to be used.

20. We note that a direction to the effect that a reasonable doubt is the sort of doubt that might" affect you in the conduct of your everyday affairs"(R. v. Gray) ⁽¹⁾ has been disapproved by the Court of Appeal in England; whereas in Walters v. Reg. ⁽²⁾, it was said that if the jury asks for an explanation of that term, they should be told that reasonable doubt is the sort of doubt that might affect the mind of a person in dealing with matters of importance in his own affairs.

21. Mr. Jennings points to the passage in the judgment in Gray where Lord Justice Megaw (at p.,182) quotes from the summing-up of the trial Judge, where the latter had said, in relation to reasonable doubt,: "That means simply a doubt based upon good reason and not a fanciful doubt. It is the sort of doubt which eight affect you in the conduct of your everyday affairs." Lord Justice Megaw went on to disapprove the latter sentence in that passage, while apparently approving the former, that is to say, a doubt based upon good reason".

22. Nevertheless we think that the phrase used by the Judge in this case was stronger than that used in Gray, inasmuch as he said it was a doubt for which the jury must be able to give a reason.

23. We are prepared however to say no more in respect to this point than that this particular form of direction is one to be avoided. It is, in the form given to it by the Judge, a positive injunction rather than an explanatory note.

24. Mr. Payne seeks to join these two grounds of appeal. He says that the direction on the inconsistency of the applicant's statement which in his contention had the effect of removing a line of defence from consideration by the jury, must have been exacerbated by being told that they must have a good reason for their doubts. That is an ingenious conjunction but while we are indebted to Counsel for a very able address on the matter do not think in the final analysis that taken singly or together, either of these objections can be said to be such as to have misled the jury into bringing in an unfair or unsatisfactory verdict.

25. And Mr. Payne also sought to rely upon grounds presented by the applicant himself. The grounds are contained in a fairly extensive document but they really amount to one point. He suggests that he was in fact only charged with the crime because the police contended that he had led them to find the place where the body was buried. Mr. Payne concedes that this point is answered if the final statement is taken at its face value, for in that statement the applicant had clearly admitted to taking the police to find the body. For these reasons therefore we are satisfied that the verdict was not unsafe or unsatisfactory and the appeal must therefore be dismissed.

Representation:

Ian Payne (D.L.A.) assigned for appellant.

Michael Jennings for Crown/Respondent.