Au-yeung Ping Keung v. The Queen
|
CACC000966/1975
-----------------
----------------- Coram: Huggins & Pickering, JJ.A. & McMullin, J. Date of Judgment: 24th March 1976. ----------------- JUDGMENT ----------------- Huggins, J.A.: McMullin, J. is unable to be present today but the judgment which is about to be read has his approval. I will ask Pickering, J.A. to read the judgment of the Court. 24th March 1976. Representation:
-----------------
----------------- Coram: Huggins & Pickering, JJ.A. & McMullin, J. Date of Judgment: 24 March 1976. ----------------- JUDGMENT ----------------- Pickering J.A. The Appellant appeals against his conviction on an indictment for murder. On the morning of 17th December 1974 the body of a 16-year-old girl was found, in a carton designed to contain a television receiving set, on the pavement in Wong Nei Chong Road. The girl was naked and the forensic pathologist gave evidence that she had died of strangulation. From scratches on the neck and face he suggested that strangulation had occurred by pressure from a forearm which the Deceased had made desperate efforts to pull away. A very thorough examination of fibres and other debris on the body and in the carton by chemists from the forensic laboratory led the police to search for a workshop in the neighbourhood. Such a workshop was found inside the premises of the Americana Company, only a few yards from the spot where the carton was discovered. A microscopic examination of debris from that workshop indicated a very high degree of probability that the body and the box had at some time been inside this workshop. The Appellant was an employee of the Americana Company and had been on duty, alone, in the shop on the preceding evening. According to the punch card recording his attendance he was in the shop from 5:45 p.m. until 10:13 p.m. In the first instance the pathologist estimated the time of death as between 9 p.m. and 12 midnight but he later amended that to between 6 p.m. and 12 midnight. The Deceased had left her home in Shaukiwan at about 5:30 p.m. en route to an evening school in Causeway Bay, which commenced at 7 p.m. On the way she planned to call at a newspaper office to insert an advertisement for her elder brother. At about 6:30 p.m. she telephoned to a friend and asked her to make a rendez-vous at the tram terminus in Wong Nei Chong Road - a few yards from the place where the carton was eventually found - and indicated that she was then at the train terminus. There is no telephone at the tram terminus and the suggestion was made to the jury that the Deceased might have gone to the Americana Company to make use of their telephone. The friend kept the appointment and waited for a considerable time but the Deceased did not appear. On examination of clothing in the Appellant's home there was found a suit the fibres of which matched some fibres found on the body. There was, however, no evidence that the Appellant had worn that suit on the material day. Two green fibres of unknown origin were found on the Appellant's suit and these matched other fibres of unknown origin found on the body and on the workshop floor. The chemist was of opinion that they all came from the same source. There was then evidence that after the death someone had burned the victim's public hair with a hot object, and a soldering iron was found in the workshop, which could have caused this burn. 2. The first grounds of appeal all relate to the testimony of two witnesses who were called to give evidence of "similar facts". On two separate occasions about a year prior to the offence charged the Appellant was said to have burned holes in the skirt of one of these witnesses with a lighted cigarette when she was travelling on a ferry. The Appellant contends that this evidence was wrongly admitted because there was no real similarity and that, even if it was admissible, the judge should in the exercise of his discretion have excluded the evidence on the ground that its prejudicial effect far outweighed its probative value. Counsel for the Crown submits that the similarity lies in two directions, first in that heat was used and second in that there was a sexual characteristic involved. Mr. Niamatullah, on the other hand, argues that these similarities are altogether too remote, since on that occasion fire itself was used several times on the clothing of a living person while in the present case a hot object was used once directly on to a dead body. The case is not an easy one and it is possible that one or more of the members of this Court would have taken a different course, but we are unable to say that the trial judge was wrong. The evidence of the girls did tend to establish a particular kind of aberration despite the differences of detail. Indeed, some of the cases to which we have been referred where similar fact evidence was admitted seem to us to show no "underlying unity" beyond what one might reasonably expect in any case of its kind. Morris (1969) 54 Cr. App. R. 69 is one of such cases, but in Reg. v. Twomey 1971 Crim. L.R. 277 the "hallmark" evidence tended to establish aggressive homosexuality and we think that it is comparable to the present case. In our opinion the evidence was admissible and we are unable to say that it was not open to the trial judge to exercise his discretion in the way he did. 3. In the alternative various complaints were made of the summing-up in relation to the evidence of the two girls. First it was said that the judge failed to direct the jury on the danger of accepting that part of their evidence in which they identified the Appellant as the person involved in the previous incidents. They came forward as a result of having seen in a newspaper during the trial a photograph alleged to be of the Appellant. It was inevitable that any evidence of identification which they gave thereafter would be open to attack on the basis that they were identifying the Appellant with the photograph rather than with the person they had seen on the ferries. It is therefore particularly unfortunate that the first step taken by the police was to show them four photographs, including one of the Appellant which differed from those of the other three subjects in that it was in colour. It was, apparently, the only picture of the Appellant they had available, but by the following day they had obtained another photograph and were able to conduct a more satisfactory test of identification with eight black and white prints of approximately the same size and showing in each case the head and shoulders of the subject. The judge did tell the jury they would have to consider whether the girls were mistaken in their identification of the Appellant and pointed out that one of them, the friend of the victim in the incidents, was not absolutely positive in her identification. He did not give them any special warning but there is no authority requiring a special warning. We think the jury was sufficiently alerted to the possibility of a mistake, and it should be mentioned that counsel for the Crown at the trial expressly said in the presence of the jury that he accepted "that the value of this parade [i.e. the identification using the eight photographs] is minimised very considerably" because these witnesses had seen a previous photograph. He could, perhaps, have said previous "photographs", but the jury would not have been misled by that. They could hardly have failed to appreciate the possibility of a mistake. Nor - and this was the next matter argued - could they have failed to understand that the evidence of the girls was entirely irrelevant unless they were satisfied that the Appellant was the man who burned the skirts. 4. The third alternative complaint as set out in the Notice of Appeal was that the judge erred when referring to the evidence of the Appellant. The judge said: "At all events you must take it that he is saying that he certainly never deliberately burned the skirt of Miss Yip" The judge was led to make that comment because, as he said, there were two ambiguous answers given by the Appellant in his examination-in-chief which were never clarified. The argument of counsel was that the judge did not at this stage in the summing-up point out that there was a possibility of accident, but it must be remembered that the main line of defence in respect of the incidents on the ferry was that the witnesses were mistaken as to the identity of the man responsible. Having regard to the terms of the Notice of Appeal the question we have to ask ourselves here is whether what the judge said was wrong: we shall have to consider later whether the defence as a whole was adequately put before the jury. We do not think it was wrong. It has to be read in the context of the entire summing-up and, so read, it was in our view a fair and proper comment. 5. The third ground of appeal is in the following terms:
In presenting its case the Crown was confronted by the fact that there was a total absence of direct evidence to show that the Deceased had gone to the Americana shop on the night upon which she died. There was also no direct evidence of any motive for the killing other than might be inferred from the curious circumstances surrounding the discovery of her dead body in the vicinity of those premises. It was, indeed, originally a ground of appeal that the judge should not have addressed the jury in a manner which implied that there might be some evidence of motive but we found no substance in that for all that he said was, what was patently true, that in view of those circumstances, imagination could readily supply an element which it was, in any case, no part of the Crown's duty to prove. This ground of appeal extends that objection somewhat further for there is no doubt that the passage in the summing-up which is complained of does introduce an element of speculation into an area in which it plainly was the duty of the Crown to adduce positive proof. The passage complained of is in these terms:
Mr. Niamatullah complains, firstly, that there was no positive evidence to support the Crown's suggestion and that for that reason the judge should have discounted it altogether in addressing the jury. It would however not be true to say that there was nothing in the evidence to justify the putting of that suggestion to the jury whether by counsel or by the judge. There was, firstly the scientific evidence which, if the jury accepted it, was sufficient to show that the girl's dead body at least had been within those premises and secondly there was the fact that she had telephoned at 6.30 from a place which she identified to her friend as the tram terminus. The Americana shop is a matter of 15 yards from that terminus and there is no phone at the terminus itself. It cannot be said therefore that the suggestion of the Crown was wholly without foundation and Crown counsel's comment was clearly put to the jury as being merely a suggestion. Where the element of pure speculation enters in is in the words: "was she killed because some sort of attack had been made upon her and she was starting to scream?". Assuming that the jury were prepared to infer that the girl had gone in to telephone from the Americana Company it is obvious that a variety of things might have happened thereafter to account for her naked body ultimately being found bundled up in a cardboard carton outside a nearby shop. In making the single suggestion which he did we think that the learned judge ran the risk of introducing an unnecessary complication not only into the jury's task but into his own. If the truth was that the girl had been killed because she resisted advances made to her by her killer who, upon her resisting, panicked and strove to cut off her screams by putting his arm round her neck then clearly the question of whether the killing was accidental or intentional would fall to be considered. Mr. Caird in replying upon this point referred to the decision of this court in CHAN Hon-tong v. Reg. 1973 H.K.L.R. 216, a case of homicide, in which the former Chief Justice, Sir Ivo Rigby, had refused to act upon the suggestion of counsel that he ought to leave the question of manslaughter to the jury. That case is not of great assistance to him since the injuries inflicted upon the girl victim in that case showed that an extraordinary and indeed bizarre degree of violence had been employed. Although death was due to strangulation not only was the hyoid bone broken but there was evidence that immediately thereafter four knives had been violently driven into the girl's neck, each one of which would, in any event, have caused her death. In these circumstances it is not surprising that the learned Chief Justice took the view that it would have been absurd to leave the jury to ponder on the possibility that the killer had intended anything less than fatal harm. But in the present case the injury which caused death was not so extreme as to be inconsistent with an intention to do something less than kill. We think however that the answer to Mr. Niamatullah's contention that, having made this suggestion, the judge should then have left it to the jury to consider whether or not there had been an intention to kill is simply that there were not the materials upon which such a verdict should have been left to them. The doctor's evidence was that death might have ensued as much as four minutes after the application of force to the neck and no point appears to have been made either in cross-examination of the doctor or else in the evidence as to the possibility that a panicky man might not realizo that such a manner of treatment might prove fatal. The case was, in other words, one in which it would have been quite proper for the learned trial judge, had the suggestion of manslaughter been made, to withdraw that issue from the jury on the ground that there was no evidence to support it. The learned trial judge did not expressly withdraw the issue but clearly from the manner of the summing-up he did not think that it was alive. The only fault we can find in this part of the summing-up is that, in one brief sentence, he had introduced the possibility of an issue which clearly it was not his intention to leave to them and which upon the evidence could not justifiably have been left to them. 6. The seventh ground of appeal, which was to the effect that the learned trial judge did not adequately put the defence to the jury, had specific reference to the following passage in the summing-up:
Mr. Niamatullah points out that there were numerous matters in the evidence which should have directed attention away from the Appellant as the strangler of the girl and complains that the judge, in the passage above, mentioned only four such points all of which, with the exception of the matter of the meal, were minor. 7. Other matters which counsel suggested the learned judge should have brought to the attention of the jury include the fact that the Appellant bore no scratches on his face or his hands whereas the police clearly expected the killer to have borne such marks since, after the forensic experts had advised the police to concentrate their search upon premises in the nature of electrical workshops, the police made search for people working in such premises who were bearing scratch marks. The likelihood of the killer having in fact been scratched was considerable, counsel contended, since the evidence was that the girl had pointed nails, that the operation of strangling her must have occupied on the medical evidence, some three to four minutes, that the doctor said she must have put up a violent struggle and that he would be prepared to accept that she could have inflicted scratch marks over the face, the palm and the hand of her killer. It was counsel's contention that the absence of such marks upon the Appellant was significant and should have been specifically brought to the attention of the jury in the summing-up. 8. Again, it was said, upon medical evidence the latest time of which the deceased girl could have eaten the meal found in her stomach was 1 ½ hours before her death and the probability was that the meal had been consumed some 2 ½ or 3 ½ hours before that event; the evidence pointed strongly to the fact that she had eaten no meal between lunchtime and leaving her home at 5:30 p.m.; yet the prosecution's theory was that she had been strangled at about 6:30 in the premises of the ice-cream shop, a theory the validity of which was rendered extremely dubious by the evidence of the meal which she had clearly taken, yet the judge's reference to the meal had been only casual. A further aspect of timing which might well have been put before the jury in the summing-up, counsel said, was that if the girl had been killed at around 6:30 p.m. her body must have been placed in the box between 9:30 and 10:30 p.m. since the medical evidence was that such positioning occurred between three and four hours after death. It was in evidence that there was no box of the type into which her body was placed on the premises where the Appellant worked and in the workshop of which premises her body is alleged to have been dealt with; so that if the Appellant had in fact killed her in those premises it was apparent that he was then faced with the necessity of going and getting the box, but the likelihood of his having been able to do that in a brightly lit and busy area near a tram terminus without observation was slight; yet despite the glare of publicity which was immediately given to the bizarre finding of the girl's body in the cardboard container upon the pavement of a busy public street, nobody came forward to say that he or she had seen such a cumbersome container being taken into the premises. 9. A further matter which counsel said should have been brought to the attention of the jury was contained in Dr. Dailly's evidence and was to the effect that the witness had taken seven fibres from the girl's body and two from beneath her nails, and that a suit, found hanging behind a door in the Appellant's home, was the probable source of these fibres. What should have been pointed out to the jury was that literally hundreds of thousands of fibres found in the workshop were subjected to inspection but not one was found to have come from that suit which, indeed, the Appellant swore he had never worn at his work in those premises; moreover the fibres, Dr. Dailly said, were not unique though he would not go so far as to say that they were of common occurrence. It was the doctor's evidence that if the suit had been worn in that workshop it was likely that some fibres therefrom would have remained in the workshop and this was the purpose of the minute but fruitless examination of the hundreds of thousands of fibres found there; this should have been pointed out to the jury as corroborative of the Appellant's assertion in evidence that he had never worn that suit to work. Counsel further complained of the judge's comment in regard to the Appellant's denial of ever having worn the suit in the Americana Company. The judge's actual comment was ''the accused told you in cross-examination, though he had never mentioned it any earlier, that he had never worn that particular suit at work in the On Mei Company". The objection was to the phrase "though he had never mentioned it any earlier". The On Mei Company is of course, the Americana Company. 10. Again, counsel commented, it was not pointed out to the jury that although there was found in the workshop a roll of white paper similar to a small piece of paper adhering to the girl's forearm, that small piece contained Chinese characters the writer of which had never been found but who was proved to be neither of the two mechanics employed in the workshop; that being so, it was urged, there is no evidence that the paper adhering to the girl's forearm came from the workshop. 11. Other matters which pointed away from the Appellant as being the murderer were that there was no evidence of any association between himself and the dead girl. She had on some four or five occasions met the girlfriend with whom she failed to keep an appointment upon the night of her death, at the tram terminus hard by the shop and workshop. The girl friend lived nearby and neither were unfamiliar with the vicinity; had there been any evidence of association between the Appellant and the Deceased, the girl friend would be likely to have known it. Again the sales record of ice-cream sold in the shop on the night of her death showed no inconsistencies to suggest that business had not been carried on very much as normal; the Appellant himself had been subjected to questioning by the police on some ten occasions whilst his relatives and colleagues were also questioned thoroughly without any sort of admission being elicited or any direct involvement of the Appellant with the girl or with her death being demonstrated; a small matter was that the attendance register of the evening school which she normally attended but failed to reach on the night of her death. was found after her death to be missing, a matter minor in itself but possibly pointing a finger at somebody else rather than at the Appellant who had no association with her school; further there was no evidence of any tendency on the part of the Appellant to sexual assault his former girl friend and the girl accountant at the shop testifying to this. Another point was that if the Appellant was to be suspected it first had to be assumed that the door of the workshop was not locked and the evidence was that the door bore a combination lock and was frequently kept locked though sometimes left unlocked. Finally, a glaring omission on the part of those investigating the crime was that the clothing of other employees in the shop and workshop had not been analysed, the investigations having been focused exclusively upon the Appellant once he came under suspicion; there had been a failure to employ the elimination method and this in the face of Dr. Dailly's admission that the fibres in the Appellant's suit were not unique. 12. We think the jury can have been in no doubt on the basis of the scientific evidence that the girl's body was dealt with in the workshop of the Americana and the various matters which counsel complains were not put before the jury would, if so put, have related to the identity of the Appellant as the killer rather than to the location of the killing and cartoning of the body. It is counsel's contention that, accepting the medical evidence to the effect that the latest time at which the girl could have been killed was midnight, on the basis of the time-card which the Appellant punched at 10:13 (there being no evidence to suggest that the card did not tell the truth about the time at which he left the premises) there was an interval of one hour and forty-seven minutes during which somebody else could have obtained access to the building with the girl and there killed her. 13. There is, of course, no obligation on the part of a judge in his summing-up to review the whole of the evidence nor yet to survey counsel's arguments in their entirety - and indeed so to do may in many cases confuse rather than assist the jury. It is always necessary however to put the defence to the jury and this is all the more important where the defence is of a technical nature such as self-defence, provocation or alibi. 14. But in a case such as the present where the defence is simply "I didn't do it and I know nothing about it" there is little that need, or indeed can, be said to the jury as to the basic nature of that defence for its essence is plain to see and the jury is well aware of the fundamental denial. 15. Such an unvarnished defence may, of course, be put forward in many different circumstances. Where, for example, the defence is "I didn't do it" but there are eye-witnesses to suggest the contrary, the matters to be put before the jury would present no difficulty. Where, however, such a defence can be refuted, if at all, only upon the basis of circumstantial evidence particular care may be needed to ensure that a truly balanced picture is placed before the jury; that is to say that not merely is the accused's denial laid plain before the jury for assessment against the circumstantial evidence pointing to him as a possible culprit, but that all the circumstances which might point in the direction of guilt residing in somebody other than the accused should also be placed squarely before them. 16. We have recited the litany of such matters which defence counsel complains was not put before the jury in the summing-up and there can be no doubt that, having regard to the circumstantial nature of the evidence in this case, the omission - if omission it were - was highly prejudicial to the Accused. No actual "defence theory" was put up for there was none to be put up and there can be no complaint that the summing-up did not mirror any such specific theory - but so many factors point away from the Accused, in addition to those which point towards him, that grave uncertainty must exist as to whether, had these matters been placed before the jury, the jury would have reached the verdict which it did. 17. After very anxious consideration we have reached the unanimous conclusion that the verdict is unsafe and unsatisfactory and must be set aside. We have hesitated long over the decision whether to order a retrial. The original trial occupied 17 working days and involved the evidence, frequently lengthy, of many professional experts. The extent of time and money involved in a retrial will be considerable but, nevertheless, we have come to the conclusion that just as in justice to the Accused we could not let the verdict stand, so in justice to the community we cannot set him free. The verdict of the jury was not so patently wrong that it may not in fact have been a correct verdict: but in the absence (so far as we can tell) of any reminder to the jury at a late stage of the trial of so many factors throwing doubt upon the guilt of the Accused, we cannot be sure that that verdict did in fact reflect the truth of the matter. The conviction is quashed, the sentence set aside and the Appellant remanded in jail custody pending a retrial. 18. We have earlier expressed some reservation as to whether there was in fact any lack of reminder to the jury at a late stage of the trial of the matters which we have enumerated but which were certainly not the subject of comment by the learned judge in the summing-up. That reservation high-lights a vital omission in the court record supplied to us for the record contairs nothing of counsel's final submissions to the jury, it being no longer the practice for court-reporters to take down either those submissions or counsel's opening speeches to the jury. Could we have been certain that in defence counsel's final address to the jury the omissions in the summing-up which have so exercised our minds were in fact covered, we should not have hesitated to have dismissed the appeal. But in the absence of any knowledge as to whether that was so or not we were unable to let the verdict stand. The former Full Court in recent months, has not infrequently been embarrassed by the lack of any record of counsel's final speeches to the jury. It is the first occasion upon which this Court has been so embarrassed but no member of this Court can recall such acute embarrassment from this source being caused to the former Full Court. It could be that had we had before us the full record of the proceedings in the court below, a retrial would have been avoided. Accordingly we intend to seek a direction that in future the opening and closing addresses of counsel to the jury be recorded by the court-reporters. We would add that it is not only the Court which feels the lack of this material for in this case counsel both for the Crown and for the Defence put forward a heart-felt plea that the former system whereby these addresses were recorded. and transcribed, should be restored. Representation: Niamatullah (D.L.A.) for Appellant Caird, C.C. for Respondent. |