HKSAR v. Hong Tsz Yin

CAC C 189/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 189 OF 2010

(ON APPEAL FROM HCCC NO. 293 OF 2009)

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BETWEEN

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Before: Hon Stock VP, Hartmann JA and Tong J in Court

Date of Hearing: 18 March 2011

Date of Handing Down Judgment: 26 September 2011

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J U D G M E N T

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Hon Stock VP:

1.The facts of this case and the grounds of appeal are set out in the judgment of Hartmann JA.

2.We can safely start with the following uncontentious propositions from Archbold (Hong Kong) 2011 para 4-190A:

“It is the duty of the judge to identify the defence; how this is done will depend on all the circumstances of the case; where the judge had invited the jury to read the whole of the summary of an interview with an accused who had not given evidence, and had then referred them to the salient parts in relation to each count, he had done all that he could reasonably be expected to do in placing before the jury what was being advanced as giving rise to a defence: R v Soames-Waring (unrep., The Times, 20 July 1998), CA (Eng). Where the accused neither gives nor calls evidence, but has been extensively interviewed, it is of particular importance that the summing up should at least summarise the main points made by the accused in the interview; only rarely, if ever, would a conviction be judged safe notwithstanding a failure to sum up the defence: R v Akhtar [2000] 1 Archbold News 2, CA (Eng). Where, however, there is no evidence from the defence and the accused said nothing in interview, it has been said that the judge is under no obligation to remind the jury of the defence case: see R v Briley [1991] Crim L R 444, CA (Eng); R v Hillier & Farrar 97 Cr App R 349, CA (Eng); and HKSAR v Suen Yung Yung & Another [2003] HKEC 976 (no part of a judge’s duty to build up the defence of someone who has chosen not to give the jury the benefit of seeing him in the witness box, although he should remind them in summary form of any version of events given by the accused prior to the trial and of any assistance provided to the accused by the prosecution’s witnesses). Where the approach of the defence was to deny the offence and to discredit the prosecution witnesses, the judge needs only to remind the jury of that approach and does not have to do anything else: R v Kwong Chiu (unrep., Cr App 250/1985), CA; R v Lam Tsz Wah [1984] HKLR 54, CA.” (Emphasis added)

3.In this case, the applicant did not testify. But he was the subject of no fewer than four lengthy interviews.  They constituted not merely a denial of an intention to kill either victim but, importantly, his exculpatory explanations for those acts relied upon by the prosecution as evidencing an intention to kill; exculpatory in the sense that he was saying that the acts were consistent with other intentions.

4.In her summing-up, the judge made frequent reference to the fact that the defence case was that there was no intention to kill or cause serious harm.  To this extent, the nature and extent of the defence was made clear to the jury.

5.But that, with respect, was, in the circumstances of this case, not enough.

6.What the learned judge did not do was to summarise what it was that the applicant asserted in his interviews as to what his intentions in fact were and the basis upon which he said that his conduct was consistent with absence of an intention to kill.  Nothing elaborate was needed; but a succinct analysis of the thread of the interviews insofar as they sought to render his actions consistent with his suggested lack of relevant intent was called for and, no matter how implausible it might be said his explanations were, it is not acceptable in a criminal trial – let alone a murder trial – where somewhat complex explanations are advanced by way of defence, to say no more in this regard than was said by the judge in this case and to which Hartmann JA refers at para 51 below; effectively, to leave them simply to look at the records of interview.  The result was a failure to draw to their attention the essence of the applicant’s explanations for his conduct and how it was said that those explanations went to his defence.

7.That is the first basis upon which I would allow this appeal.

8.The second is the judge’s repeated reference, as if it were an undisputed fact, to the soaking of the towels in chloroform, whereas in his interviews the applicant was at pains to emphasise that he placed but a little chloroform onto the towel on each occasion so that the towel was only “slightly wet”.  However unhelpful or implausible at the end of the day, this was an assertion that was important to his defence of no intent.  Yet the contrary notion, namely, that the towel was soaked in chloroform appeared as a central plank of the prosecution case in the summing-up.  So, for example, the judge said:

“The prosecution simply put its case in this way. A person does not apply a towel soaked with chloroform on another person’s face intending to do anything else but to kill the other person or to do that other person really serious bodily harm and if his intention had been no more than to stop, as he alleged his interviews, the deceased from shouting out, from screaming, he would not have used a towel which he had soaked with chloroform that he had brought all the way that shortly before entering the flat.”

9.The judge then told that the jury that what they had to decide was whether “at the material time … the time when he applied towel soaked with chloroform to obstruct the deceased’s respiratory opening on each occasion – he intended to kill her or he intended to do a really serious bodily harm.”

10.The rest of the summing-up was littered with repeated references to the towel being soaked with chloroform – repeated on no fewer than about 10 occasions – as if that were an accepted fact from which the jury could proceed.  Yet, there is not a single reference to the defendant’s emphasis in the last of his four interviews upon only a small amount being placed on the towels so as to render the women “dizzy”.

11.For these reasons I would grant leave and allow the appeal.

Hon Hartmann JA:

Introduction

12.On 26 May 2010, following a trial in the Court of First Instance before Madam Justice Poon and a jury, the applicant was convicted by unanimous verdict of two counts of murder.  In respect of each count, he was sentenced to life imprisonment.

13.The first count of which the applicant was convicted alleged that on or about 9 January 2009, in an apartment in the Kwun Tong area, the applicant murdered a woman by the name of Kwan Suk Yee.

14.The second count alleged that about three weeks later, on 31 January 2009, in an apartment in the Hung Hom area, the applicant murdered a woman by the name of Wong Amporn.

15.The applicant sought leave to appeal his conviction of both counts.

16.Both Kwan and Wong were sex workers.  At trial, it was an admitted fact that the applicant had visited both women in their apartments and that both women had been killed by him.

17.By way of an overview, the uncontested evidence revealed the following.

18.First, while they were still partially dressed, the applicant had had sexual intercourse with both Kwan and Wong.  No condom was used.  This was proved by the fact that the applicant’s DNA was found on vaginal swabs taken from the bodies of both women.

19.Second, when the applicant had gone into the apartments of both Kwan and Wong, he had taken with him a small towel to which he had applied chloroform.

20.Third, when the bodies of both women were discovered lying on their beds, the towel to which chloroform had been applied was found placed over their faces.  Forensic tests proved the presence of chloroform in the blood of both women.

21.Fourth, the ingestion of chloroform, while it may have been a contributing factor, was not the cause of death.  In both cases, death was caused by the application of sufficient force to obstruct the victim’s mouth and nose for a sufficient period of time to result in suffocation.  In this regard, the autopsy reports revealed the presence of multiple abrasions and similar injuries caused by the application of blunt force.

22.Fifth, before leaving the apartments of both Kwan and Wong, the applicant, who was in debt at the time, had searched for and stolen certain of their property.

The issue for the jury

23.When he was arrested, the applicant asserted that he had not intended to kill either woman.  Thereafter, in a series of seven video-recorded cautioned interviews and in two recorded re-enactments, the applicant went on to explain how it was that each woman had died as a result of his actions even though he had had no intention to kill either of them or to cause either of them serious bodily harm.

24.At trial, the video-recorded interviews and re-enactments were put into evidence.  The applicant chose not to testify.

25.It was never in dispute that the applicant had unlawfully killed both Kwan and Wong.  The issue for the jury to determine was therefore succinct.  It was one of intention.  Could the jury be sure that, when the applicant caused the death of each woman, he intended at that time to kill them or to cause them serious bodily harm in which case (in respect of each count) the verdict would be one of murder?  Or, in the light of the various assertions made by the applicant in his video-recorded interviews and re-enactments, may it have been that he had no such intention in which case (in respect of each count) the verdict would be one of manslaughter?

The prosecution case

26.It was the prosecution case that the applicant’s intention to kill both women or to cause them serious bodily harm was to be inferred from all the circumstances: principally –

27.First, the violent application of force sufficient to cause the deaths of both women by suffocation, death on each occasion being caused by the obstruction of both the mouth and nose.

28.Second, the fact that on each occasion, before entering the apartments of the two women, the applicant had applied chloroform to a towel, chloroform being a substance long used for the purpose of anaesthesia, that is, for the purpose of bringing about unconsciousness.

29.Third, that, on his own admission, the applicant had applied the towels to the faces – although he said it was only to the mouths – of both women, holding it there even though, on a reading of his various recorded interviews, he knew, or must have known, that each woman was attempting to resist him doing so.

30.Fourth, that on each occasion the applicant had left the towel covering the face of his victim.

31.Fifth, that on each occasion, when he had rendered each victim unresponsive, the applicant had left them in that state and, being in need of money at the time, had stolen certain of their property.

The defence case

32.On behalf of the applicant, Mrs Panesar, his counsel at trial and before us, urged the jury to find that the applicant’s various assertions advanced in the course of his interviews should be accepted as reflecting a true account of the events that led to each killing and the applicant’s state of mind at the relevant times.

33.In his interviews, the applicant asserted that he went to the apartments of both Kwan and Wong with the intention only of enjoying unprotected sex.  He had intended to make payment for the services rendered to him and at no time had any intention to steal.

34.In respect of the first victim, Kwan, it was the applicant’s original explanation that there had been an initial episode of sexual intercourse which passed off without incident other than the fact that Kwan had criticised him for being overly rough.  When a second episode of sexual intercourse took place, said the applicant, Kwan had again criticised him for his roughness, a fact which irritated him, and it was during this second act of intercourse that he placed a towel over Kwan’s mouth.  He did so, he said, because he was afraid that the neighbours may hear the noise Kwan was making and may come to the door.  His purpose therefore was simply to keep her quiet.  The applicant admitted that he held the towel to her mouth with some force until he had completed the act of sex.  By then, however, Kwan had fallen still and was unresponsive.

35.In his initial explanation as to how the second victim, Wong, had come to meet her death, the applicant said that he had placed a towel over her mouth in order, in part, to increase the level of his own sexual excitement.  However, as with the first victim, he said that his principal reason for doing so was to prevent her making noise that may disturb the neighbours.  When asked what sort of noise caused him concern, he replied to the effect that she called out as if she was being robbed.  The applicant made no attempt to explain why – at that moment in time – Wong may have thought she was being robbed.  The applicant said that he held a towel over Wong’s mouth and continued to do so even though he was aware that she was struggling.  Again, as with Kwan, the applicant said that by the time sexual intercourse was completed, Wong had fallen still and was unresponsive.

36.In a later interview (his third), the applicant was more explicit in his reference to a desire to obtain sexual pleasure.  Seemingly when speaking of both victims, he admitted that he enjoyed sex that he described as ‘vigorous’.  He made the further admission that seeing victim’s struggle gave him a degree of sexual excitement.

37.In a further interview (his fourth) the applicant admitted for the first time that, before going into the apartment of each woman, he had applied chloroform to the towel that he carried with him.  He had applied the chloroform, he said, because he was hoping that the ingestion of the substance would add in some way to his sexual enjoyment and also that of his partner.  He commented that he was “prepared for the worst” in that he could use the towel to cover the mouth of the woman if she yelled out but could also use it to increase their mutual sexual pleasure.

38.During the course of the interviews, the applicant admitted that a day or so after he had caused the death of his first victim, Kwan, he had learned of her death from media reports.  When visiting Wong, his second victim, the applicant explained that, in order to try and avoid the same result, he had been sparing in his application of chloroform to the towel that he took into the apartment.

39.The applicant denied any intention to suffocate either of his victims.  It was always his intention, he said, to keep the towel over their mouths.

40.As to the theft of property from both apartments, although there was evidence that the applicant was in debt, he denied any plans to steal.  On both occasions, he said, when the women became unresponsive, he panicked and fell victim to sudden greed.

41.The defence case was not therefore the simplest to comprehend.  A multiplicity of intentions had to be identified and a determination made as to the degree to which, if at all, they drove the applicant’s actions.  In her final submissions to the jury, Mrs Panesar recognised the difficulties:

“… we cannot be sure whether the defendant intended to kill or cause serious harm to the two deceased, or merely to quieten them because they were too noisy, or to quieten them and see them struggle to get a sexual excitement which was greater than ejaculation, or to get a sexual high himself, to give the two deceased a sexual high as well by making them dizzy [with the chloroform applied to each towel ] so that they didn't know what they were doing, or merely to quieten them so that the neighbours were not affected, or maybe it was all four of them.”

42.However, it was central to Mrs Panesar’s final submissions that the placing of the towels over the mouths of the two victims had two primary purposes neither of which involved any intent to cause death or serious bodily harm: first, to keep each woman quiet and, second, to seek a greater level of excitement in the completion of the sexual act, excitement for himself and, in the application of the chloroform, perhaps for his victim too.

43.It was further central to her final submissions that, while objectively the applicant’s actions may be considered dangerous, the jury should accept that the applicant did not consider them so or simply did not put his mind to that fact.  At worst, therefore, the jury should find that the applicant was reckless as to his conduct but, in respect of each victim, formed no intent to kill or to cause serious bodily harm.

The grounds of appeal

44.On behalf of the applicant, Mrs Panesar raised a number of grounds of appeal.  One was formally abandoned during the course of the hearing while it was accepted that two were of no substance and were not pursued.  The remaining grounds may be summarised as follows.

45.First – this being the principal ground – the judge’s summing-up to the jury was unfair and unbalanced.

46.Second, throughout the summing-up the judge described the towels to which the applicant had applied chloroform as being “soaked” in the substance.  This description was not only inaccurate but was emotive in tenor and prejudicial to the applicant.

47.Third, the judge wrongly referred to two matters of uncontested evidence on the basis that both were capable of giving rise to the inference that, at the time he caused the death of the two deceased, the applicant had intended to kill them or to cause them serious bodily harm.  The first matter was the applicant’s admission that, before leaving each apartment, he had stolen certain property.  The second matter was the fact that, immediately prior to his arrest in his own apartment, the applicant attempted to dispose of a container of chloroform.  The judge was in error because neither matter was capable of assisting the jury to determine the true intent of the applicant at the time of each killing, both matters being equally capable of supporting the necessary intent for murder and manslaughter.

48.Fourth, the judge failed to direct the jury as to the evidence capable of supporting a defence in accordance with R v Nendrick [1986] 1 WLR 1025; namely, that the applicant could not be convicted of murder unless the jury was satisfied in respect of each killing that the applicant must have appreciated that, by his actions, it was a virtual certainty that he would cause the death or serious bodily harm of the victim.

The first ground: the summing-up was unfair and unbalanced

49.In this respect, it was submitted that the judge fell into error in two respects.  First, she failed to assist the jury in their analysis of the evidence by setting out the nature and extent of the defence case.  Second, when in the course of the summing-up she did make reference to aspects of the defence case, it was almost inevitably for the purpose only of their systematic demolition.

50.As to the asserted failure of the judge at any time during the course of her summing-up to set out the nature and extent of the defence case in terms that were accurate and fair, Mrs Panesar pointed to the fact that the judge’s first substantive reference to the defence case, while unobjectionable in itself, went no further than informing the jury that no burden of proof lay on the applicant:

“… the defence put forward in this case in relation to the two counts that the defendant faces is that, although he had applied a cloth or a towel soaked with chloroform to the deceased in each case, as a result of which each of them died, it was not his intention at that time to kill her or to do each of them really serious harm. As I say, members of the jury, it is not for the defendant to prove that he did not intend to kill each of the deceased or to cause each of them really serious bodily harm. On the contrary, it is for the prosecution to prove that that was his intention.”

51.Mrs  Panesar accepted that later in the summing-up a fuller reference was made to the defence case but said that, for all intents and purposes, it was no more than a reference to where details of the defence could be found:

“Members of the jury, you will no doubt vividly recall the contents of the videos which you saw and the two re-enactments. You have got transcripts and translations of each of those and they set out in considerable detail the account of matters which the defendant gave to the police. Remember, it is the video interview that is the evidence. The transcripts and translations are no more than aide-memoires to assist you in watching the videos. You may wish to see them, or part of them, again when you retire to consider your verdict. Both counsel have addressed you about some of the content of those video interviews, and in particular about what the defendant had said about the two incidents and you will give that matters such attention as you think it merits.

Beyond that it serves little purpose, I think, for me to deal at great length with the interviews and re-enactments because, as I say, they are self-evident. You have got them in front of you.”

52.Mrs Panesar complained that this was not a summary of the defence case, no attempt being made to describe its nature and extent.  

53.The judge did go on in the balance of the summing-up to make numerous references to particular aspects of the defence case.  The judge did this by way of ‘highlighting’ various matters raised by the defendant in the course of his interviews to explain his actions.  The purpose of ‘highlighting’ these matters was to assist the jury in determining what weight, if any, could be given to them in determining the true intention of the applicant at the time of each killing.  Mrs Panesar accepted that this was of itself permissible.  Her complaint, however, was that, when read as a whole, it is apparent that the judge proceeded to set up these aspects of the defence case for the specific purpose of demolishing them.  In the result, so it was submitted, the judge thereby fatally undermined a defence case that had not in the first place been adequately or fairly put before the jury.

54.The observations of the judge that are the subject of complaint are lengthy.  By way of illustration, however, one section requires to be summarised.

55.As the transcript of Mrs Panesar’s final submissions to the jury made clear, it was central to the defence case that the jury accept that the various assertions made by the applicant in the course of his video-recorded interviews were, or may be, true.  In support of this Mrs Panesar laid emphasis on what the jury may consider to be the spontaneity of the applicant’s various admissions, this being an indication of his desire “to come clean” and tell the truth.  Emphasis was also laid on the fact that many of his admissions were later found to be supported by other evidence.

56.The judge duly reminded the jury of this in her summing-up.  Mrs Panesar’s criticism, however, was that the judge used this as a launch pad to begin a sustained and systematic criticism of the various aspects of the defence case, the effect being to make clear to the jury that none of them could be given any weight.  

57.In this respect, the judge’s directions begin with her comment that the jury may find her observations useful in deciding whether the applicant had told the truth in his various interviews.  First, said the judge –

“… it was not until the fourth – the fourth – interview that he mentioned the use of chloroform. It was not until after he was shown the exhibits, when he was shown the black carrier bag seized from his flat, that he revealed the use of chloroform for the very first time. Even then, in the fourth interview, he only mentioned chloroform was used in the [Hung Hom] case. It was not until much later in that interview did he unfold the fact that he had also used chloroform in the Kwun Tong case.”

58.Second, said the judge –

“… you may wish to consider whether the defendant, in the interviews, had given a consistent explanation as to why he should apply a towel on the prostitutes. You will recall, in the earlier interviews, when he spoke of the [Hung Hom] case, before he ever revealed that chloroform had been used, he said he used the towel to cover the mouth of the second deceased to stop her from shouting, as she thought that he was trying to rob her. He later changed to say that he did so because when he saw her struggle, he felt “more excited than ejaculation”. Yet still in subsequent interviews, after he had mentioned the use of chloroform, did he not change again to say that he thought that by using the chloroform, he intended to make the prostitute more excited? Has he been consistent?”

59.To this the judge added –

“Counsel for the prosecution drew your attention to other inconsistencies such as that the defendant initially claimed that the second deceased had taken a shower with him, in the first interview, but he later quickly changed his version to say that the second deceased did not take any shower and he merely pulled up her top and her skirt and took off her underpants to have sex with her.

Members of the jury, carefully consider these inconsistencies, consider whether he was changing, making up or perfecting a story as he went along. If you should find that the defendant was amending his version as he went along, you may wish to consider whether he was telling you the truth in the interviews, whether he was telling the truth as to the lack of intent in both cases.”

60.Third, the judge made mention of the applicant’s assertion that, in respect of both of his victims, he had only applied the towels to their mouths. She continued by reminding the jury that, according to the admitted facts, both victims were discovered with a folded towel covering their full faces and not just their mouths.  She then reminded the jury of the evidence of the forensic pathologist that both victims had died as a result of suffocation by the forceful obstruction of both mouth and nose.  The judge continued by making reference to the photographic evidence showing the bodies of the two deceased as they were found on their beds –

“Note the position of the towels. Consider whether the photographs, the Admitted Facts and the evidence of Dr Ng [the forensic pathologist] assist you in deciding whether the defendant was telling the truth when he said that he only applied the towels to the mouths of the deceased to stop each of them from shouting out.

Members of the jury, do you think the defendant had come clean and told the police everything about the circumstances and the aftermath of the killings? Was he telling the truth when he said that he had no intention to kill or cause serious bodily harm?”

61.Fourth, the judge made mention of the applicant’s admission that he had learnt of the death of the first victim just a day or two after he had caused her death.  In light of this she asked –

“Then why would you think did he engage in the same practice with the chloroform towel on the second occasion, some 20 days later? He did give an explanation to the police. He explained that he did not think that chloroform might cause the death of a person because he only used a small quantity, despite the first deceased had died as a result from whatever small quantity he had used, some 20 days earlier. Members of the jury, was he telling the truth?”

62.Fifth, the judge went on to ask the jury to consider the nature of the applicant’s actions after each of the deceased, so he said, had fallen still and was unresponsive –

“… you may wish to take into account that on each occasion, although he said he guessed that the deceased had passed out, or even died, no effort was made whatsoever to feel her breath or to make any attempts to call for assistance. Not only did he not do that, he went on to ransack the flat, to take away properties, and what did he do afterwards? He went to pick up his girlfriend from work.”

Considering the summing up in light of the applicable principles

63.It is fundamental that in a criminal trial before a jury, every defendant is entitled to have his defence – however implausible, even if it appears to be an affront to common sense – fairly and accurately put to the jury for its consideration.  In the context of this present appeal, the principle has been forcefully stated by the Court of Appeal of England and Wales in R v Marr (1990) 90 Cr App R 154 at 156 per the Chief Justice:

“No one could doubt that if the allegations made by the prosecution were true, this was a singularly unattractive crime, earning the offender no sort of sympathy. Likewise the nature of the defence was, to say the very least, most unimpressive. It is however an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury both by counsel and by the judge.”

64.R v Marr was cited with approval by the Court of Final Appeal in Lin Ping Keung v HKSAR (2005) 8 HKCFAR 52.  In so doing, Chan PJ said (para 24):

“A trial judge is under a duty to summarize the issues and the evidence relating to these issues clearly, accurately and fairly to the jury.”

65.As Chan PJ emphasised, what the judge says to the jury in his summing-up is almost invariably the last word they hear before they retire.  As such the summing-up carries considerable weight and places on the judge a duty to ensure that what is said in the summing-up both truly and accurately reflects the evidence and constitutes a fair and balanced analysis.

66.A balanced summing-up means one that, on objective consideration, contains a fair statement and analysis of the case for both sides.  Determining whether a summing-up is balanced in this sense is often the most difficult of matters especially when, as in the present case, the judge had the unenviable task of dealing accurately and fairly with a defence that was confused, shot through with implausibilities and, in many of its aspects, distasteful in the extreme. Ultimately, whether a summing-up, when read as a whole, is balanced is a matter of impression and ‘feel’.

67.In the present case, however, it was simply not sufficient for the judge to leave the records of interview to the jury to make of them what they thought best without any real attempt to summarise the nature of the defence case.  I do not suggest for a moment that a slavish recitation of every aspect of the records of interview had to be conducted.  Patently, that would have been of no assistance to the jury.  But, as the authorities to which I have referred make clear, an overview of the essential elements of the defence case presented in an impartial way, no matter how implausible that defence, was required.

68.Concerning the present case, I believe this was of particular importance for two reasons.  First, the records of interview constituted the entirety of the defence case.  Second, the factual issues arising out of the various records of interview were multi-layered and complex, sometimes seemingly contradictory, sometimes coloured with ambiguity.  This was very much a case which demanded, insofar as it was possible, a clear summary of the defence case, a summary that would have constituted a reference point for the jury when considering matters going both to support that case and to undermine it.  I would suggest something to the following effect at least was required:

“The defendant’s responses to the two charges of murder are contained in the seven video-recorded interviews and the two video-recorded re-enactments that he made.

Concerning his visit to the first deceased on 9 January 2009, the defendant insisted that he had no intention to kill her. Nor did he have any intention to cause her serious bodily harm. It was his intention to do no more than have sexual intercourse, albeit of the kind that gave him particular pleasure, to pay the woman for her services and then to leave.

Concerning his visit to the second deceased some three weeks later, the defendant again insisted that he had no intention to kill her or to cause her serious bodily harm. Again, he intended to do no more than have sexual intercourse, again of the kind that gave him particular pleasure, to make payment and to leave.

The defendant admitted that, when he made his second visit, he knew that the first deceased had died at his hands. He said, however, that at the time it was his belief that the first death must have been caused by the inadvertent use of too much chloroform. That was why, on this second occasion, he was careful to apply less of the substance in order to avoid the same tragic consequence.

But how was it that on each occasion the women did die as a result of his admitted acts?

Defence counsel has suggested that, as the interviews progressed, the defendant became more willing to explain the particular type of sexual connection that he was seeking and which motivated him to make his visits.

The defendant wanted unprotected sex for which he was willing to pay. More significantly, you will recall him saying that he enjoyed sexual intercourse when it was forceful and rough. You will further recall him indicating that it gave him heightened pleasure to sense the woman struggling.

That was the kind of sexual connection that he wished to play out: dominant and to an extent sadistic. But it was never his intention, said the defendant, to play out that connection so that he killed his partner or caused her any serious harm.

Concerning the towel that he carried on each occasion to which, on each occasion, he applied chloroform, it would seem on a consideration of the later interviews given after he had admitted the use of chloroform that he put forward two motives. First, he needed to place a towel over the mouths of the women to prevent them crying out and arousing neighbours. Second, it was his belief at the time that the chloroform, once ingested, would act as some form of drug, enhancing the excitement of the sexual act both for his partner and for himself.

The theft of the belongings of each woman, he said, happened after they had fallen still. He said that they were not pre-planned. It was his explanation that on each occasion, in a state of panic, he had fallen victim to momentary greed.

In summary, as defence counsel has urged upon you, while objectively you may find that the defendant’s actions were repugnant and inherently dangerous, it is for you to put any prejudice out of your mind and to consider his intention at the time he made each visit. In this respect, defence counsel has urged that you accept that the applicant had no intention to kill either victim or to cause them serious bodily harm. In addition, seeking no more than to play out his sexual desires, he did not appreciate that it was a virtual certainty that his actions would result in the death of each victim or cause them serious bodily harm.”

69.Regrettably, there were no directions of this kind.

70.Mrs Panesar’s second complaint, namely, that when, later in the summing-up, the judge did make numerous references to the defence case it was for the purpose only of advising the jury that no weight was to be given to it, presents more difficulties.

71.It can be said with some force that all of these comments, when considered in the context of all the evidence, were justifiable.  It can also been said that no defendant has the right to demand that the judge conceal from the jury such difficulties and deficiencies as are apparent in his case.  As was said in R v Nelson [1997] Crim LR 234, per Simon Brown LJ:

“Of course, the judge must remain impartial. But if common sense and reason demonstrate that a given defence is riddled with implausibilities, inconsistencies and illogicalities – as plainly this appellant's defence was – there is no reason for the judge to withhold from the jury the benefit of his own powers of logic and analysis.

Why should pointing out those matters be thought to smack of partiality? To play a case straight down the middle requires only that a judge gives full and fair weight to the evidence and arguments of each side.”

72.These observations of the English Court of Appeal are of course specifically predicated on the basis that the judge must remain impartial and that he must give full and fair weight to the evidence and arguments of each side.  Earlier in his judgment in Nelson, Simon Brown LJ cited the words of Lord Lane CJ in the judgment of the Privy Council in Mears v R 97 Cr.App.R. 239, at 243:

“Comments which fall short of such a usurpation [short, that is, of withdrawing in terms an issue from the jury’s consideration] may nevertheless be so weighted against the defendant at trial as to leave the jury little real choice other than to comply with what are obviously the judge’s views or wishes.”

73.In the present case, the judge did remind the jury that questions of fact were for them only.  However, her observations as to the defence case were inexorably critical.  As has been observed in HKSAR v Umali (unreported) CACC 116/2010, “it is one thing for a judge to offer for the consideration of the jury key apparent illogicalities and implausibilities so as to assist them in their analysis but quite another to devote almost the entire summing-up to a topic by topic destruction of details of the defence case so as to render almost otiose the reminder that the decision is that of the jury’s”.

74.If at an earlier point in the summing-up the defence case had been summarised in the manner I have suggested, the strong impression of partisanship on the part of the judge would have been materially dissipated.  In the result, however, on a reading up of the summing-up as a whole, the impression gained is that the jury were given a wholly one-sided view of the case.

The second ground: describing the towels as being “soaked” in chloroform

75.This ground was advanced to lend further weight to the principal ground that the summing-up was unfair and unbalanced.

76.It was to the effect that during the course of the summing-up to the jury, when referring to the presence of chloroform on the towels, the judge constantly referred to them as being “soaked” in chloroform.  Mrs Panesar submitted that, in light of the applicant’s interviews, this description was not only inaccurate but was an unnecessarily emotive one that prejudiced the applicant.

77.During his interviews, when speaking of the application of chloroform to the towels, the applicant used a Cantonese expression the equivalent of which in English is the word ‘dip’.  This word implies only a partial and brief immersion.  The word ‘soak’ implies a greater form of immersion, equivalent to saturation.

78.During one of his re-enactments, the applicant described how, before entering the apartment of his second victim, he applied chloroform to a towel.  He spoke of adding just a small quantity of chloroform to the towel.

79.There is therefore strength in the criticism that the regular use of the word “soaked” by the judge was not accurate.

80.The use of the word takes on particular significance in the present case because it was central to the applicant’s defence, going to the issue of his intention.  In the circumstances, I have been drawn to the conclusion that the constant use of the word “soaked” has added to the impression of an unbalanced summing-up.

The third ground: wrongly referring to matters on the basis that they were capable of supporting an inference of intent to commit murder

81.During the course of her summing-up, the judge referred two particular matters of evidence to the jury.  She did so on the basis that a consideration of those matters in the context of the evidence as a whole may assist the jury to determine the true intent of the applicant at the time of each killing.

82.The first matter was the uncontested evidence that the applicant was in debt and, before leaving each apartment, had stolen certain property.  The second matter was the uncontested evidence that, immediately prior to his arrest in his apartment, the applicant had attempted to dispose of incriminating evidence, that is, a container of chloroform.  The complaint made was that neither matter was capable of assisting the jury to determine the true intent of the applicant at the time of each killing as both were equally capable of supporting the necessary intent for murder and manslaughter.

83.Concerning the theft of property, I am satisfied the judge was correct to give the direction she did.  It was the prosecution case that the applicant was motivated by two desires: sex and greed.  It was accepted that he was heavily in debt at the time.  It was central to the prosecution case that theft from the two women was therefore pre-planned by the applicant, part of his strategy.  Indeed, in an early interview the applicant spoke of attempting to silence his second victim, Wong, because she was calling out as if she was being robbed.  The evidence further showed that it was only after sexual intercourse and after each victim had been suffocated that the applicant then looked for property to steal in each apartment.  Causing the death of each victim would be consistent with not wanting them to be able to identify him.

84.In respect of the second matter, however, I am satisfied that Mrs Panesar was on stronger grounds.

85.In this regard, in the course of his interviews, the applicant admitted that, when the police came to his apartment to arrest him, he attempted to dispose of a container of chloroform.  He did so, he said, because he was afraid that he would be accused of keeping dangerous goods in his apartment.  In respect of this evidence, the judge directed the jury to the effect that –

“…you are entitled to consider whether this evidence assists you in deciding the intent of the defendant at the time of the two offences.”

86.The difficulty with this direction was that the applicant had at all times admitted being responsible for the death of the two victims but had denied any intention to kill them or cause them really serious harm.  Indeed, he had made a protestation to this effect at the time of his arrest, shortly after he had attempted to dispose of the chloroform.

87.Even when considered in the context of the evidence as a whole, on the basis of those primary facts, while it was open to the jury to reject the explanation given by the applicant and to infer that the applicant had attempted to dispose of the chloroform because he knew it had been used in the death of each victim, I do not see how it was open to the jury to further refine the inference.  The primary facts were simply not capable of allowing for an inference to be drawn as to the exact intent of the applicant at the time of the killing of each victim.

88.After the jury had retired to consider its verdict, prosecuting counsel expressed his concern in respect of the direction.  He said that, with the applicant admitting the unlawful killing of both women, it was not possible for the jury to draw an inference either way as to the applicant’s true intent at the time of each killing.  Prosecuting counsel therefore suggested to the judge that the jury be re-directed on the issue and this was done, the corrected direction being to the following effect:

“The fact that he [the applicant] threw away incriminating evidence is not of itself evidence of guilt, because there are many innocent reasons why a person may do so. So if you think his explanation in the interview is or may be true, then you should take no notice of the fact that he chose to throw the bottle of chloroform down the balcony, because what he said was he was afraid that the police would accuse him of possessing dangerous substance in his home.

It is only if you are sure that he did not do so for the innocent reason, that he disposed of incriminating evidence in realisation of his guilt of the offence of murder, then you should consider whether this evidence assists you in deciding the intent of the defendant at the time of the two offences.”

89.This direction, however, did not recognise the fundamental problem, namely, that, in light of the fact that the applicant always admitted the unlawful killing of the two women – that itself being a serious crime and reason enough to attempt to dispose of incriminating evidence – the primary facts were simply not capable of supporting an inference either way as to the applicant’s true intent at the time of each killing.  In terms of the direction, however, the jury were told that it was capable of supporting such an inference, indeed an inference that at the time of each killing the applicant had the necessary intent to commit murder.

90.Accordingly, in my view, both the original direction and its corrected version constituted material misdirections.

The fourth ground: that the judge failed to direct the jury as to the evidence capable of supporting a defence in accordance with the principles set out in R v Nendrick

91.Although this ground of appeal was raised, it was not pursued by Mrs Panesar, the basis being that in fact the required direction was given.

92.When directing the jury on the single issue for their consideration, that is, whether the defendant, at the time that he killed each victim, intended to kill her or to cause her really serious harm, the judge said the following:

“… you are not entitled to infer the defendant intended to kill the deceased in each case, or to do her really serious bodily harm, unless you are sure that death or really serious bodily harm was a virtual certainty as a result of what he did to each of them, and that the defendant appreciated that such was the case.”

93.The judge went on to remind the jury of the various submissions made by the applicant to the effect that he appreciated that chloroform could cause people to lose consciousness and that he knew that the substance was dangerous. She further reminded the jury of the evidence of the forensic pathologist to the effect that both victims had suffered injuries consistent with the application of blunt force to their faces.  The judge continued:

“… carefully assess whether this evidence assists you in deciding whether the defendant appreciated or knew at the material time that by forcefully, forcefully, using a chloroform soaked towel to obstruct the respiratory openings of the deceased, and according to him in the interviews, he said that the period is for about one to two minutes. Whether that would result in death or really serious bodily harm, whether that he appreciated it.”

94.In my view, while a Nendrick direction was required, the directions to which I have referred met that requirement.

Conclusion

95.For the reasons given, I find that the jury’s two verdicts of guilty of murder cannot stand.

96.This leaves the issue of a retrial.  On behalf of the applicant, Mrs Panesar submitted that this was an appropriate case in which to substitute convictions for manslaughter.  I do not agree.  A retrial is required because the facts warrant a trial for murder. 

Hon Tong J:

97.I agree that the two convictions of murder must be quashed. I further agree that this is a proper case in which to order a retrial.

Hon Stock VP:

98.Accordingly, we grant the applicant leave to appeal each conviction, treat the hearing of the application as the appeal, allow the appeal and quash the convictions.  We order a retrial in respect of the two counts of murder and remand the appellant in custody pending determination of that retrial.

Mr Simon Tam, SADPP and Ms Monica Chan, PP, of the Department of Justice for the Respondent

Mrs Panesar, instructed by Messrs C.O. Yu & Co., assigned by Director of Legal Aid, for the Applicant