HKSAR v. Tang Sau Ling

HCCC 396/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 396 OF 2011

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Before: Hon McWalters J in Court

Date of Hearing: 28 February 2012

Date of Ruling: 2 March 2012

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R U L I N G

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Introduction

1.This is an application under s. 16 of the Criminal Procedure Ordinance Cap 221 for discharge of the defendant on the ground that the evidence in the committal papers, as supplemented by additional evidence since filed with the court, is insufficient to establish a prima facie case against her for the offence of murder with which she is charged or for any other offence for which she might be convicted upon that charge.  The murder occurred in circumstances where the deceased was strangling his 12 year old son and the defendant came to the aid of her son.  This application is based upon the assertion that the prosecution evidence is insufficient to prove beyond reasonable doubt that the defendant did not act in defence of her son when she struck the blows that ultimately led to the death of her husband. Even though the actions of the defendant are concerned with the defence of another I shall refer in this ruling to the defence as self-defence.

The Law of Self-Defence

2.Archbold Hong Kong summarises the law of self-defence at para 20-44 of its 2012 edition as follows:

“The test of whether or not a person had acted in self-defence is partly objective and partly subjective. The jury must decide whether the defendant actually and honestly believed that he was compelled to act as he did in order to defend himself, and then must decide whether, in all the circumstances, his response was reasonable.”

3.Once raised the defence of self-defence has to be rebutted by the prosecution.  That is, the prosecution has the burden of proving beyond reasonable doubt that the actions of the defendant in assaulting her husband were not done in defence of her son.  The prosecution accept that the defence is raised in the present case and is raised on the very evidence the prosecution itself will adduce.  The key witness in the prosecution case is the son who was being strangled.  He will say that he was being strangled and that the defendant was coming to his aid.  The prosecution will present its case on this basis though it will also adduce expert medical evidence which may call into question the seriousness of the son’s peril.

4.Essentially the prosecution’s response to this application centres around the forensic evidence which it says is, when taken at its highest, capable of satisfying a jury beyond reasonable doubt that the defendant did not act in defence of her son.  Its case is not that the defendant did not actually and honestly believe that she was compelled to act as she did in order to defend her son but rather that the force employed by her in defending her son was unreasonable in that it was excessive and disproportionate to the circumstances which she was facing.

5.Whether the response of a defendant is reasonable will depend upon the circumstances of the case as the defendant honestly believes them to be.  In R v Man Wai-keung [1992] 1 HKCLR 89 the Court of Appeal said at page 95, lines 29-36:

“ The test of the reasonableness of the response remains objective but the objective assessment must be made in the light of the seriousness of the attack as the defendant honestly believes it to be and it is not material that his belief was a mistaken one as long as it was honestly held.

The focus is now upon the honesty of the belief of a defendant as to the seriousness of the attack and, in the light of that belief, the reasonableness of the response must be judged. The critical factor is whether the person being attacked honestly, perhaps “genuinely” is a better word, believed the attack to be a serious one against which he had to defend himself. If he did, then the reasonableness of his response must be judged in accordance with that belief.”

6.In coming to this conclusion the Court of Appeal referred to the judgment of the Privy Council in Palmer v R [1971] AC 814 where, in an often quoted passage, it was said by Lord Morris at page 831:

“If there has been an attack so that defence is reasonably necessary it will be recognized that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken.”

The Legal Principles Underlying a S 16 Application

7.The relevant legal principles in respect of s. 16 applications are now well settled.  In Attorney General v Li Fook Shiu Ronald [1990] 1 HKC 1 the Court of Appeal, in referring to the role of the  trial judge, said at page 12 H to 13D:

“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.

If elaboration of the approach explained in Galbraith is called for we are of the opinion that a judge faced with a submission of ‘no case’ or an application for discharge in circumstances where the Crown's case depends, as it usually does, upon an inference or inferences from primary facts, may ask himself:

(1) is there some evidence that the crime has been committed? If not, the judge will rule no case or discharge the count in question. If there is;

(2) is the evidence of primary facts of a quality permitting a jury to accept it? If not, the judge will stop the case or discharge the count. But, if such evidence is of appropriate quality;

(3) could, may or might a jury properly directed be satisfied beyond reasonable doubt of such inferences as have to be drawn if all the elements of the prosecution case are to be established?  If he concludes that a jury could, may or might so be satisfied, he will rule against the submission or application.”

8.This case makes it clear that in determining a section 16 application I am not concerned with what findings of fact I would make or even with what findings of fact a jury would make, but rather with what findings a jury could, may or might make.  In making this determination I do not assess the quality of the evidence for that would be to usurp the function of the jury.  I assume that all evidence that is admissible and probative of the issue in dispute will be accepted by the jury and decide whether, given that evidence, a properly directed jury could, may or might find that issue proven by the prosecution.  The jury could only properly find that issue proven if the evidence is capable of satisfying them of that issue beyond reasonable doubt. (See also The Queen v Tin Sau-kwong [1996] 1 HKCLR 9).  By “capable” I am not referring to the quality of the evidence but rather the sufficiency of it.

The Prosecution Case

9.The prosecution will present evidence from family members and a video interview of the defendant.  This is the only direct evidence of the crime.  In addition there are medical reports on the son who was being strangled, and the pathologist’s evidence.  Essentially the evidence of self‑defence comes from the family’s evidence and the evidence to rebut it comes from the medical and pathology evidence.

The evidence from the family

10.The only eyewitness was the son who was being strangled.  An older daughter was present in the flat and could hear what was taking place but did not actually see what transpired.

11.The evidence of the son is that his father got into a quarrel with him in the course of which the father lost his temper.  He picked up a wooden stick, perhaps intending to beat the son, but put it down and using one hand grabbed the son by the neck.  The son said that he felt he was going to die. The defendant then ran from the kitchen to help her son but what alerted her to his situation is not clear from the son’s evidence.

12.The defendant tried to pull the deceased away from her son but he didn’t release his hold of the son’s neck.  The mother then picked up the wooden stick and started hitting the deceased over the head with it.  The son can’t recall precisely the number of times the mother hit the father with the stick but makes it clear that the father did not immediately release his hold on the son’s neck and that it took several assaults by the mother before finally the father released his hold of the son.  In his video witness statement the son says of his mother’s actions in hitting his father with the wooden stick:

“But mum did it to save me” (see Counter 339) and

“At that time she did (it) to save me.” (see Counter 377)

13.The blows to the head of the deceased did not kill him then and there. After getting her husband to release his hold of the son’s neck, the defendant bandaged the wounds of her husband and offered to take him to a doctor. However he refused and went and lay down instead.  The assault upon the deceased probably took place at around 9 am on the 12^th February 2011, although the son gives a time of around 11 am, and he survived until the morning of the 13^th February when he was found dead in his bed.  He died from loss of blood from the lacerations to his head.

14.There is other evidence to corroborate the son’s claim that he was being strangled by his father.  The assault left marks on the boy’s neck and these were observed and queried by the second-born sister who was absent at the time of the attack but returned home later that day.  The son was also examined by a doctor who concluded that what he observed on the son’s neck was consistent with the claim of strangulation.  A forensic pathologist, Dr. Ying Ho-wan also expressed the expert opinion that the fingertip bruise and fingernail marks “would be considered as signs of manual strangulation”.  However, there was an absence of signs of asphyxia and this indicated to him that “the amount and duration of force applied on neck would not be significant”.  The prosecution seize on this latter opinion as evidence that the son’s situation may not have been as perilous as he thought at the time and that the father may simply have been holding the son by the neck rather than actually choking him.

15.The son also spoke of his father’s irrational behaviour which seemed paranoia-like in nature.  He would lose or misplace his possessions and accuse his family of having stolen them.  He was a gambler and would lose his money through betting on horse races and then accuse his family of having stolen his money.  The son at one stage says of his father:

“It was because he always s..seemed to have treated us like enemies.” (Counter 1119)

16.The son also describes him as becoming a changed man after the family moved to Hong Kong from the Mainland.  But despite these occasional rows family life seems to have been predominantly happy and the son only mentions one previous occasion where the father had become physically violent.  On this occasion, as with the present occasion, the father’s mood and temperament changed suddenly and for no real reason he took offence at a comment the son made.  The son repeatedly describes the father as becoming, on such occasions, “another person”.

The defendant's evidence

17.In her first explanations of how the deceased came by his injuries the defendant falsely asserted that he was involved in a fight at a Jockey Club outlet where he had gone to gamble on horseracing.  She also said that he had fallen down when he tried to remove a Chinese New Year poster.  Such an incident in fact took place about an hour after the defendant had assaulted the deceased but this event did not cause the laceration to his head which led to his death.  The prosecution say that this conduct of the defendant, which preceded her full confession, throws doubt on her credibility, especially in relation to her claims as to her belief as to the seriousness of the attack and the need for the level of force that she used to respond to it.

18.The defendant gave two interviews which are mixed in that they contain admissions to assaulting her husband but raise a defence of self‑defence.  The prosecution rely upon a contradiction between the defendant’s claim that she hit the deceased only 3 times, after which she says the deceased let go of his son’s neck, and the pathologist’s evidence of there being five lacerations.  The prosecution say that if there are five blows then two of them must have been administered after the deceased had desisted from strangling his son.

19.However this is not realistic.  It is clear that what the defendant is saying is that she hit the deceased a number of times but to no effect and so she hit him a final time much harder.  When asked how she was holding the rod she answers:

“(As) it was chaotic at that time (I) don’t quite remember.” (2nd V.I.R. Counter 299)

This I have no doubt more accurately reflects her ability to accurately recollect the incident.  Nevertheless I accept that what weight should be put on this point is a matter for the jury and I accept that it is some evidence that could be used to rebut the defence of self-defence.

20.However, I do not see anything in the records of interview that throw doubt on the genuiness of her claim that the reason she assaulted her husband was in order to save her son i.e. the first limb of the self-defence test.

The evidence of the autopsy

21.The same pathologist who examined the son conducted the autopsy.  He identified five injuries to the deceased’s head which were “highly consistent with head bash injuries being inflicted with rod-like objects”.  These injuries were all lacerations and one was a “full‑thickness laceration” which is a laceration involving all the layers of the scalp, including skin and underlying soft tissues.  These lacerations were, in the opinion of the pathologist, “the lethal injuries that resulted in profusely bleeding (i.e. massive blood loss) and cause his death slowly”.  The pathologist does not say how many blows caused these injuries, simply saying that they were “typical of blunt force trauma being inflicted by hitting with or bumping against hard object in multiple directions”.  However, I have seen the photos of these injuries and I am of the view that an inference that can be drawn from them and the pathologist’s report is that they were caused by five separate blows.

22.I have also seen a photo of the wooden stick that was used to cause these injuries and I note the description of it in the statement of the pathologist i.e. an object weighing 720 grammes with dimensions of 67 cm in length and 3 – 3.5 cm in diameter.  There does not appear to be anything inherently dangerous in this object in that it has no pointed ends and is a rounded rather than sharp object.  What made it lethal appears to have been the force with which it was wielded.

23.In addition to these wounds to the head the deceased suffered injuries to his upper limbs which the pathologist described as “typical of defensive injuries, as the deceased used his forearms and hands to protect himself by warding off or grabbing the weapon”.  Three of these injuries were quite severe involving extensive bruising, dislocation of the first metacarpal joint of the left hand and an oblique fracture of the right inner forearm bone, indicating that “there was considerable force being applied on the upper limbs”.  The prosecution argue that these injuries must have occurred after the deceased released the son’s neck and show that the defendant’s attack upon him continued after he had desisted from strangling his son and evidence the ferocity of that attack.

24.Essentially the prosecution rebuttal of self-defence is a forensic evidence based one.  The prosecution say that the number of blows to the head and the force that must have been behind them in order to cause the injuries evidence an unreasonable and disproportionate response to the danger with which the defendant was dealing.  Furthermore, the fact that the defendant continued to assault the deceased, with considerable force, after he released the son evidence an intent to attack the deceased rather than merely causing him to release their son.

Discussion

25.The starting point for a consideration of this issue is to have regard to the context – the context as proven by the son’s evidence and therefore the context on which the prosecution will base its case.  The first contextual element is that this is not a case of an uninvolved bystander coming to the aid of a victim of whom he has no prior knowledge.  This is the case of a mother coming to the aid of a son who is only 12 years of age and whose life is at risk.

26.The second contextual element is that the attacker is not behaving normally.  This is not a person that one can simply tap on the shoulder, speak calmly to and exhort to behave sensibly.  The deceased is known to have episodes where he is emotionally unstable and behaves irrationally and sometimes violently and he was clearly having one such episode at this time.

27.The third contextual element to take into account is that the defendant’s response to the attack on her son is an escalating one.  She commences her efforts to aid her son by first trying to pull her husband away from the son but this fails.  She then picks up the wooden stick and hits him on the head with it a number of times – but that also fails.  Finally she strikes him a much harder blow and this causes him to release his grip on the son’s neck.  It was presumably this blow which caused the “full-thicknesses laceration” of the scalp.

28.The final contextual element is that the defendant’s reaction is not a premeditated one.  The defendant is responding spontaneously to immediate events which are unfolding rapidly in front of her eyes.  She has no time for considered, objective deliberation.  She is reacting to an emergency which is becoming increasingly desperate.

29.In this situation with these contextual elements, any person, more especially a mother, is going to become increasingly frantic and inevitably to resort to increasingly desperate measures.  That there may have been an element of frenzy or ferocity to the defendant’s response is a natural consequence of her relationship to the victim, the behaviour and temperament of the deceased and the failure of her initial efforts to free her son’s neck from the deceased’s grasp.

30.The same considerations impact upon the probative force of the defensive wounds, although I accept that ultimately what weight should be given to that evidence is a matter for the jury.  But it must be remembered that even on the son’s evidence, which is the core of the prosecution case, the son was in peril and in need of assistance and the initial efforts of the defendant to assist him failed.  That he needed help from his mother and that she was unable, by her strength alone, to save her son and had to resort to other means to do so, are facts that are unaffected by the evidence of the defensive wounds.

31.The evidence that there was no sign of the son having suffered asphyxia is of some, but only small probative value to the prosecution.  The reason I say this is because there could be an explanation for this such as the action of the defendant inhibited the deceased in his efforts to strangle his son. But be that as it may it must be remembered that the law focuses on what the victim, or in this case the person aiding the victim, believes the situation to be, not what the situation may actually be.  Here the son believed he was being strangled and believed he was going to die.  The defendant says that belief was communicated to her by the son and the deceased was uttering threats to do precisely that.  That the deceased may not have intended to carry out his threat or may not have yet started to choke the son does little to undermine the genuiness of the defendant’s belief.  This piece of forensic evidence cannot prove that the defendant must have known that the son was not in fact in imminent danger of losing his life and therefore was responding excessively to a non‑life‑threatening situation.

32.The defence of self-defence is clearly raised on the papers and that is not disputed by the prosecution.  The prosecution seek to rebut that defence by saying that in the circumstances she was facing, the degree of force that the defendant employed in response to the attack was unreasonable and to this end rely on the forensic evidence as being capable, in terms of its sufficiency, of satisfying a jury beyond reasonable doubt that the defendant was not acting in self-defence.  The focus of this application has therefore been on the second limb (excessive force) of the self-defence test.  In so far as the written submission of the prosecution suggests that there is evidence that, in respect of the first limb, the defendant did not hold the requisite belief as to the peril of her son and the need for her to respond to it, I reject that entirely.  In my view all the evidence, on the papers, is entirely one way and on this limb there is undoubtedly insufficient evidence to enable a jury to conclude otherwise.

33.I now turn to the second limb – to the contention by the prosecution that the defendant’s response, in terms of the level of force she employed, was unreasonable.

34.To my mind there is an air of unreality to the prosecution’s response to this death and to this application.  It is almost as though it was trying to reconstruct what happened through the forensic evidence when it knows what happened because it has the son as its eyewitness to these tragic events. There would have been nothing wrong with the prosecution re‑interviewing the son and eliciting from him, so far as it is possible, further details of the argument with the father and its aftermath, putting to him any queries that the forensic evidence might raise or for that matter are raised by the defendant’s two video interviews.  But it has not chosen to do this.  Instead it has suggested there are question marks about the son’s evidence in a way which borders on seeking to impugn its own witness.  This is not an appropriate way to proceed and is contrary to the prosecutor’s role as minister of justice.  The prosecution is putting the son forward as a credible witness worthy of belief and as the only eyewitness to the events he becomes, in effect, the prosecution case.

Conclusion

35.Given the son’s evidence and the contextual matters to which I have referred I find it surprising that a prosecution is taking place at all.  To my mind this is a classic case for the application of Lord Morris’ comments in Palmer that I have quoted earlier of recognizing that a person defending himself cannot be expected to weigh to a nicety the exact measure of his necessary defensive action.  Bearing those comments in mind and taking account of the contextual matters I have mentioned I conclude that each of the pieces of forensic evidence on which the prosecution relies to rebut the defence of self-defence is very weak.  Individually they are not capable of proving beyond reasonable doubt that the defendant did not act in self‑defence and nor can their cumulative effect do so.

36.On the basis of this evidence, taken at its highest and on the assumption that a jury accepts it without qualification, I am of the view that the answer to the question of whether a properly directed jury could, may or might be satisfied beyond reasonable doubt that the defendant did not act in self-defence is “No”.

37.I therefore grant the application and direct that the accused shall not be arraigned on the charge she faces and that she be discharged.

Mr Arthur Michael John Bruce and Mr Ian Brown, Counsel on Fiat of Department of Justice, for the respondent

Mr Frederic Charles Whitehouse, instructed by Messrs Cheung, Chan & Chung (assigned by D.L.A.), for the applicant

Please refer to CACC93/2012 for the relevant appeal(s) to the Court of Appeal.