HKSAR v. Li Sui Heung

CACC 304/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 304 OF 2009

(ON APPEAL FROM HCCC NO. 4 OF 2009)

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BETWEEN

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Before: Hon Yeung VP, Lunn JA and McWalters J in Court

Dates of Hearing: 15 August 2012

Date of Judgment: 15 August 2012

Date of Handing Down Reasons for Judgment: 11 September 2012

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1.On 8 December 2006 and 7 March 2008 respectively, two elderly ladies Madam Ng (aged 81) and Madam Yen (aged 87), who both had to walk with walking sticks and lived alone, were found dead at their respective homes, namely Room 504 Shek Fong House in Shek Wai Kok Estate (Room 504) and Room 1139 Mei Choi House in Shek Kip Mei Estate (Room 1139).

2.They both had serious injuries to their heads.  Their hands were tied up and Madam Yen’s mouth was covered with adhesive tapes.  Their head or body were covered with a towel or a blanket and it appeared that they were left to die after the injuries were inflicted.

3.The pathologist opined that Madam Ng died on or about 7 December 2006 and the examination revealed broken upper dentures caused by one of the blows to her head.  There were many bruises and serious lacerations to her head.  There was also extensive deep bruising underneath the skin extending to the muscle layers over the scalp and face with particularly serious bruising on the cheeks, the front, the sides and the back of the head.  There was also a bruise at the back of the outermost layer of the brain.

4.There were eight broken ribs on Madam Ng’s right ribcage.  One of her teeth had been loosened.  The expert further opined that Madam Ng had been subject to severe violence with repeated forceful blows to her head while she was on the floor.  There were bruises consistent with the application of pressure on Madam Ng’s neck.  However, she did not die from strangulation, but from a combination of acute blood loss from the lacerations on the scalp and the brain damages.

5.Madam Yen died on or about 5 March 2008 from injuries inflicted a day before. When her body was examined on 7 March 2008, open wounds on the right side of her head were found.  Further examinations revealed a large number of lacerations and bruises.  There were deep bruises at both sides of the head, particularly on the left side.  There was a thin layer of subdural haemorrhage at the top of the brain with diffuse axonal injuries.

6.The presence of aspiration of the lungs suggested that Madam Yen had breathed in her own vomit which had caused an accumulation of the material in her lungs and she died about 12 hours after she had inhaled her stomach contents into her lungs.

7.Madam Yen did not die from strangulation as there was no sign of asphyxia and the cause of death was head injuries with substantial blood loss.  The pathologist opined that the force required to cause the head injuries was substantial and that there were at least four blows to Madam Yen’s head.  The expert further opined that Madam Yen was attacked when she was on the floor.

8.The CCTV of Mei Choi House captured the applicant (Li Sui Heung) travelling up and down in a lift at about 11 am on 4 March 2008.

9.Madam Kwok, who travelled together with the applicant and Madam Yen in the lift, testified against the applicant.  She said the applicant helped Madam Yen to walk up one floor as only the even-numbered-floor lift was in operation and upon arrival at Room 1139, the applicant asked Madam Yen for the keys.  Madam Yen gave the keys to the applicant and she opened the door and helped Madam Yen inside before taking Madam Yen’s food from Madam Kwok. The applicant then went inside Room 1139 with Madam Yen and Madam Kwok left.  That was the last time Madam Kwok saw Madam Yen.

10.Madam Yen’s godson confirmed that when he tried to call Madam Yen on 6 and 7 of March, he could not get in touch with her.  He found Madam Yen dead when he visited Room 1139 with his wife on 7 March 2008 and he called the police.

11.When the applicant was arrested on 14 May 2008 for killing Madam Yen, she said, “I didn’t mean to kill the old woman.  I merely wanted to go to the old woman’s place to pursue a debt.”

12.The applicant’s admission was recorded in the police notebook and the applicant further wrote down that she wanted to say there was another case that occurred at Shek Wai Kok Estate.  The applicant then wrote down: “I hit an old woman to death by mistake.  I wanted to turn myself in.  I killed the two old women by mistake.”

13.The applicant was subsequently identified by Madam Wong, Madam Yen’s neighbour that she was with Madam Yen at about 11 am on 4 March 2008.

14.The applicant was charged with the murders of Madams Ng and Yen.  She pleaded not guilty to the charges and stood trial before McMahon J sitting with a jury.

15.On 28 August 2009, the applicant was unanimously found guilty of both counts of murder and sentenced to two concurrent terms of life imprisonment.  Represented by Mr Philip Ross, the applicant sought leave to appeal against conviction.  The applicant, acting in person, also sought leave to appeal against sentence.

16.At the end of the hearing, we dismissed the applications and indicated that we would hand down our reasons in due course.  This we now do.

The Prosecution Evidence

17.The evidence relating to the discoveries of the bodies of Madams Ng and Yen was agreed, and so were the autopsy examinations.  Relevant photographs and sketches of Rooms 504 and 1139 were also produced by consent. 

18.The applicant’s right ring fingerprint was found on the inner surface of the main door of Room 1139.

19.CCTV record confirmed that the applicant, Madam Yen and Madam Kwok entered a lift at Mei Choi House at 11.01 am on 4 March 2008 and one minute later they left the lift on the 10th Floor.  At 11.42 am, the applicant entered the lift alone and one minute later, she left Mei Choi House.

20.The arrest of the applicant, her admissions under caution at the time of the arrest and her identification by Madam Wong were all admitted by consent.  It was also agreed that the applicant was interviewed by the police on 7 separate occasions between 14 May and 19 May 2008.  In the course of the interviews, the applicant drew sketches of Room 504 and Room 1139 as well as the size of the adhesive tape that was used to cover Madam Yen’s mouth.

21.A cloth bag carried by the applicant at the time of her arrest was proved to have had contact with Madam Yen’s clothing.

22.On 14 May 2008, the applicant led the police to “Yue Man Gold and Jewellery Limited” on Nathan Road Mongkok where the applicant claimed to have sold the earrings of Madam Yen.  It was subsequently found out that the earrings were sold to the adjacent shop “Man Fook Jewellery” at 12.30 pm on 4 March 2008 for $496.

23.In the video recorded interviews, the applicant reiterated that she did not intend to kill Madam Ng or Madam Yen.  Initially the applicant said Madams Ng and Yen both owed her money and when she tried to press them for repayment, they attacked her first and that she fought back and killed them accidentally.  She described how she struggled with Madam Yen and how she stuck up Madam Yen’s mouth with a piece of adhesive tape and tied her up with a piece of string.  She also said she was annoyed when Madam Yen tried to resist and therefore kicked her a few times.

24.The applicant also said that when Madam Ng refused to repay the debt and attacked her, she got angry and used a rod to strike her on the head.

25.Later the applicant admitted that she was lying in her earlier statements.  She confessed that she did not know Madam Ng or Madam Yen and that they did not owe her any money. The applicant said she met them both in the street and befriended them by trying to be nice to them.  She then followed Madams Ng and Yen to their respective homes for the purpose of asking them for loans.

26.The applicant claimed that not only did Madams Ng and Yen refuse to lend her money, they started to hit her and she just fought back and in the course of the fighting, she killed them accidentally.

The Defence Case

27.The applicant did not dispute that she had killed Madams Ng and Yen, but claimed that she did not have the necessary intent.  The applicant also relied on self defence and provocation, saying that both Madams Ng and Yen had attacked her first.

28.In her evidence, the applicant said she was in serious financial difficulty when she lived on $4,000 a month of Social Security, yet owed others, including the Housing Department, a lot of money.

29.The applicant described the killing of Madam Ng. She said she went to Tsuen Wan in the morning, looking for Ah Mui who owed her money and she happened to see Madam Ng outside a bank, walking home from the market.  When Madam Ng fell on some steps, the applicant helped her and indicated that she would help Madam Ng to her home, carrying her things.

30.Madam Ng gave her the password code to enter the building and they went up to Room 504 where they chatted for about two hours before the applicant left, saying that she would return the next day.

31.The applicant further said that on 6 December 2006, she returned to Room 504 and had a chat with Madam Ng for about half an hour.  Madam Ng then got up to make some tea when the applicant asked her for a $2000 loan.  However, Madam Ng refused and got angry, saying that she did not know the applicant and she should not be so bold as to ask for a loan.  The applicant alleged that Madam Ng then poured warm water onto her face and started to hit her.  The applicant said she felt painful and hit back as she was very angry.

32.According to the applicant, when she gripped Madam Ng’s neck, Madam Ng bent her thumb and she therefore got a pole from the altar to hit Madam Ng once or twice on the head or the arm.  She said she noticed Madam Ng’s head bled and she was screaming, so she covered her mouth with some adhesive tape and tied up her hands.

33.The applicant claimed that when she was hitting Madam Ng, she was not thinking of anything.  She said she did not intend to kill or cause Madam Ng any grievous bodily harm.  She said she was hitting around at random, not aiming at any part of her body because of the pain from the twisting of her thumb.

34.After it was all over, the applicant said she was very frightened.  She washed her hands, put on Madam Ng’s slippers, put the bloodstained shoes in a bag along with the pole and the adhesive tape and then left Room 504.  She said she dumped the bag with its contents before returning home.

35.The applicant said she did not clean up the blood near the altar.  She also said that the position of Madam Ng’s body was different from that depicted in the photographs.  The suggestion appeared to be that something must have happened in Room 504 after the applicant’s departure.

36.The applicant said things were very confusing and she did not realize that the consequences of the fight could be so serious. She said she was only defending herself as she could not just stand back and let Madam Ng hit her.  The applicant claimed to be crazy and could not control herself.

37.The applicant was adamant that she did not leave Madam Ng to die as she had left the key in the grille so as to attract neighbours’ attention to it so that they could assist Madam Ng.

38.The applicant gave similar evidence with regard to the killing of Madam Yen.  She accused Madam Yen of attacking her first and that she was merely defending herself.  The applicant further said she did not leave Madam Yen to die as she thought Madam Yen would eventually be able to free herself.  She even said that she placed the blanket over Madam Yen’s head for fear that she would catch a cold.

39.The applicant said she was in financial difficulty in February 2008, as she was indebted to friends and her son, and was unable even to pay the rent arrears of over $20,000 to the Housing Department. She said she intended to look for Ah Mui to ask her for the repayment of a debt on 4 March 2008 and happened to see Madam Yen in Shek Kip Mei at about 11 am sitting outside a restaurant.  She said when Madam Yen walked towards a building with another woman she just followed them into a lift of the building.

40.They got out of the lift on the 10th Floor and walked up to the 11th Floor.  As Madam Yen had difficulty walking, the applicant helped her into her flat.  After the other woman left, the applicant closed the door and the iron grille.  The applicant said she tried to ask Madam Yen to lend her a few hundred dollars but Madam Yen said “no” and waved her hands.  The applicant then told Madam Yen that the loan would save a life and Madam Yen gave her the earrings and went out to the balcony.

41.The applicant said she followed Madam Yen and asked her for cash, but Madam Yen refused, waving her hands and saying “no, no” before pushing the applicant.  When the applicant asked for cash again, Madam Yen pulled and punched her.  There was then some noise outside and the applicant thought someone was shouting to open the door.

42.The applicant further said that she had to cover Madam Yen’s mouth to prevent her from screaming.  However, Madam Yen scratched the applicant and sat on the floor.  The applicant then used a piece of adhesive tape to cover Madam Yen’s mouth and a piece of strings to tie up her hands.

43.According to the applicant, Madam Yen tried to tear off the piece of tape across her mouth and she became angry, and she therefore kicked Madam Yen’s head twice.  The applicant said she was angry and frightened, but insisted that she only kicked Madam Yen twice and did not do anything else to her.

44.The applicant said she only took Madam Yen’s earrings and nothing else, although she later found Madam Yen’s purse in her handbag after she had left Room 1139.  She said Madam Yen had given the purse to her earlier and she just threw it away. 

45.The applicant said she was out of control in defending herself against Madam Yen’s attack and it was never her intention to kill or injure her.

46.The applicant admitted that, in the initial interviews by the police, she was making up a story as she went along because she wanted the police to trace Ah Mui so that she could recover the debt.  She said she decided to tell the truth by the 4th interview.

47.She further admitted that she saw Madam Yen by chance on 4 March 2008 when she was looking for Ah Mui.  She could not explain why she followed Madam Yen and Madam Kwok or why she closed the door and the grille after entering Room 1139.

48.The applicant agreed that she had little expectation of successfully getting a loan from Madam Yen, but claimed that when she was begging for cash “nicely”, Madam Yen suddenly pushed, punched and attacked her.  The applicant said she was shocked, but did not leave.

49.The applicant was adamant that she kicked Madam Yen because she was angry when Madam Yen took off the tape from her mouth and she had to put it back.  She said when she left Room 1139 she thought Madam Yen was alright and would be able to free herself later.  She insisted that she dropped the blanket on Madam Yen only to avoid her getting cold and was not leaving her to die.

The Judge’s Summing Up

50.In a detailed summing up to the jury, the judge repeated the evidence, including that of the applicant.  The judge reminded the jury that it was for the prosecution to disprove the defence of self-defence and provocation.

51.The judge went through the applicant’s records of interview and described the applicant’s explanation as to why she initially lied to the police.  The judge directed the jury that they could only rely on the contents of interviews as evidence against the applicant if they were sure that those contents were true, but that they could rely on them to help the applicant’s case if they might be true.

52.The judge emphasized to the jury that they must consider the two charges against the applicant separately, and must not assume that if she was guilty of one offence, she must be guilty of the other offence as well.

53.The judge reminded the jury of the applicant’s case: that the deaths of Madam Yen and Madam Ng were accidental, or the result of a mistake, or a blunder; that she was forced to respond to an attack by each of the two old ladies on each occasion; and that she did not intend to harm them, but lost control of her actions.  The judge emphasized the defence suggestion that the two deaths came about as the result of a simple coincidence of circumstances on each occasion.

54.In a preliminary ruling the judge had acceded to a prosecution application to make use of the factual similarities in the two killings for the two purposes of proving the mens rea for murder and disproving the defences of self-defence and provocation being relied upon by the applicant.  This ruling is not the subject of complaint.  On the use of this similar fact evidence the judge directed the jury in the following terms:

“The prosecution, however, point to the factual similarities between the two killings and say to you that it is beyond belief that the defendant could have coincidentally and unintentionally killed two old women in such similar circumstances on separate occasions and that the defendant must have intended to kill them, or at least to cause them really serious bodily harm on each occasion.

The prosecution say, as I understood their case, that it is wholly impossible, it is impossible, that on these two separate occasions, she believed she had to defend herself against two 80-year-old women, or killed them because she was provoked into doing so by them. They say that the factual similarities between the two killings demonstrate plainly that the killings were not mere accidents but took place by design and that the defendant did not lose control over her actions as she alleges and did not kill either of the two old ladies in self-defence.

Of course, before you can use any similarity of facts between the two cases, you must be sure that there is a similarity in the facts. If you are not sure of this, then you simply ignore the facts of one case when considering the other. It is up to you, from all the evidence, to determine what the facts are. But if you are sure that the facts of one case are similar to the other, then you are entitled to take them into account. You will remember, I think, what the prosecution is suggesting the similarity of facts were. I will not go through all of them but I will give you the gist of them now.

The prosecution suggest that one similarity is that the victims were both in their 80s; that were both women; they both walked with walking sticks; they both lived alone; they were both approached by the defendant in their rooms – in their flats, I should say; she asked them for money; she struck their heads; she tied up their hands; she covered their heads; and she left the rooms so that doors were locked, or at least one door was locked, and they could not be found. That is the gist of the similarities that the prosecution allege.

The prosecution pointed out other what you may think are smaller similarities; adhesive tape was used on both occasions, for example. You may think another similarity is, if you accept the evidence of Mr Yau, PW10, that both old ladies were struck on the head while they were on the floor. In any event, they are the sorts of similarities that the prosecution ask you to take into account.

It is up to you, from all the evidence, to determine what the facts of the two cases were and, therefore, it is up to you to determine whether or not the facts were similar and to what degree they were similar.

When considering the similarities that you may find exist in these two cases, ask yourself this question. Is the degree of similarity between the two killings such as to lead you to the conclusion that the coincidence of these two matters occurring by chance in the way the defence suggest is necessarily unbelievable, and that the similarities in the way each of the two old ladies were killed by the defendant, if you accept that to be the case, point to deliberation and design in the bringing about of their deaths and support the prosecution’s case that the defendant intended to kill, or at least cause serious bodily harm to each of them and was not acting in self-defence and was not provoked into killing them?

It is entirely a matter for you to decide what weight to place upon any similarity of facts between the two cases when you decide those issues, but in assessing what weight to place upon this evidence, you must take into account the defendant’s explanation as to how she came to kill each of the two old ladies…”

Grounds of Appeal

55.Mr Phillip Ross basically only relied on one ground, saying that the judge had failed to warn the jury that they were not to use similar fact evidence (a) to infer that the applicant was a person whose character or disposition was such that she was likely to have committed the offence charged on either count, or (b) to reason that because the applicant had committed murder on one count she was the kind of person who was likely to have done so on the other count.

56.In support of this ground Mr Ross submitted that the judge should have given a full “propensity direction” to the jury, namely that they could not use the similar fact evidence to infer that she was a person whose disposition was such that she was likely to have committed the murders.  Mr Ross relied on the following passage from the judgment of the Court of Final Appeal in HKSAR v Zabed Ali (2003) 6 HKCFAR 192 at p 204D-E:

“This appeal is only concerned with the question of admissibility. But it should be observed that if the evidence of bad character or propensity is admitted in accordance with the principles discussed above, it would be necessary for the judge to give an adequate direction to the jury as to how to approach the evidence. The jury should be directed as to the matter in issue to which such evidence might be relevant and how it might be relevant. And the jury should be told that the fact that the accused has a bad character or the propensity as shown by such evidence does not mean he is guilty of the offence charged.”

Mr Ross contended that the judge’s direction in the present case was nothing more than the standard direction that the jury should give separate consideration of the evidence in relation to each count. As such it was not sufficient, he maintained, to prevent the jury from engaging in propensity reasoning and therefore was not, in the language of Zabed Ali, “an adequate direction to the jury as to how to approach the evidence”.

57.Mr Ross also referred us to R v Venn [2003] EWCA Crim 236 and R v Barrett [2002] EWCA Crim 1372 and emphasized that in both cases, it was considered necessary for the judge to remind the jury that if they found the defendant guilty of one count, it did not mean that he was more likely to be guilty of the other counts as it was impermissible to use guilt of one charge to show a propensity to commit another similar offence or other similar offences.

58.Mr Ross suggested that the jury might have convicted on either count by relying on similar fact evidence showing a propensity to kill and therefore the convictions of both counts against the applicant were unsafe.

Discussion

59.The prosecution may not adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment for the purpose of leading to the conclusion that he or she is likely from his or her conduct of character to have committed the offence for which he or she is being tried.  However similar fact evidence is admissible, by way of exception to the general rule of exclusion, to rebut a defence reasonably open to the accused on the evidence.

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.” (See the judgment of Lord Herschell LC in the Privy Council in Makin v Attorney-General for New South Wales [1894] AC 57 at p 65.)

60.The Court of Final Appeal, in Zabed Ali (supra) reiterated the well established principle as to the admissibility of such evidence and for our purpose, it may be sufficient to repeat the decision in Held 2, namely:

“It was fundamental to recognise that the common law had extensively developed since Makin v A-G for New South Wales [1894] AC 57. The argument in favour of the approach that one should first consider the relevance of the evidence, and then apply the exclusionary rule has considerable force. Relevance was the cardinal test in the law of evidence. On this approach, admissibility should be considered along the following lines:

(a) the matter in issue which the prosecution had to prove to establish guilt, having regard to the charge, must first be identified. For this purpose, the defences open to, and any specific defence raised by, the accused would be taken into account. However, ‘the prosecution could not credit the accused with fancy defences in order to rebut them at the outset with some damming piece of prejudice’ (R v Thompson [1918] AC 221 followed).

(b) the evidence, the admissibility of which was in question, should be focused on;

(c) the following questions should then be asked: what was the matter in issue to which the evidence was said to be relevant and what was the reason for saying that it was probative of the matter in issue?

(d) If it was concluded that the evidence was relevant to a matter in issue for reasons other than to show mere propensity on the part of the accused to commit the crime in question, that is, it was not mere propensity evidence, then the test in DPP v P [1991] 2 AC 447 has to be applied in deciding as a matter of law whether it is admissible, i.e. namely whether the probative force in support of an allegation against the accused was sufficiently great to make it just to admit it, notwithstanding that it was prejudicial to him.  It was only where the test was satisfied that the evidence would be ruled admissible.  Obviously, if it was concluded that the evidence was merely propensity evidence, then it was be inadmissible on the basis of the exclusionary rule (DPP v P [1991] 2 AC 447 followed).”

61.The applicant met Madams Ng and Yen, both over 80 years old, in the street.  She followed them to their respective homes by trying to be kind to them.  She then killed both of them with identical modus operandi.  The similarities in the killings of Madams Ng and Yen were identified by the judge.

62.The applicant did not deny the acts of violence against both Madams Ng and Yen, and in fact gave similar evidence with regard to the circumstances in which she killed them.  She said she followed them home in order to obtain loans from them.  She said when she asked Madams Ng and Yen for money, they both refused and started to attack her.  The applicant said she had to defend herself and in so doing, she killed them accidentally as she had no intention to kill or cause them any serious bodily harm.

63.The evidence on the killings of Madams Ng and Yen were of course admissible separately on each of the two counts of murder.  The evidence on one of the counts was also admissible in respect of other count.

64.The requirement laid down in Zabed Ali (supra) for the admission of similar fact evidence was clearly satisfied.  Mr Ross did not argue otherwise.

65.Mr Ross’s only complaint was that the judge should have specifically warned the jury that they were not to reason, because the applicant was guilty of one charge, that “she is the kind of person who is likely to have committed the other offence charged”.

66.The prosecution suggested that the similar fact evidence was relevant to the defence of provocation and self defence, and the defence that the killings of Madam Ng and Madam Yen were accidental.  The prosecution suggested that the striking similarities between the killings of Madams Ng and Yen were such that it would be an affront to common sense to assert that they could be explained away on the basis of the applicant’s evidence.

67.There is an infinite variety of circumstances in which similar fact evidence can be admissible and there is no single manner in which a judge should direct the jury to achieve fairness.  As pointed out by Mr Tam, for the respondent, there is no magic formula when dealing with propensity directions and in every case the sufficiency of the warning depends on the facts of the case, the precise language used and, importantly, the context.

68.This was not a case where similar fact evidence per se was admitted as evidence on a charge against an accused.  The similar fact evidence was also evidence on another charge against the same accused.  Furthermore, an important contextual element of this case was that the applicant admitted that she had killed both Madams Ng and Yen and the issue before the jury was whether her evidence was believable when she said she did not intend to kill them and/or that she was acting under provocation or in self defence.  Here the adequacy of the direction must be judged by reference to what it was the jury had to decide and what form of reasoning they must not employ.  What the jury had to decide was whether the testimony of the applicant was or might be true.  They had to decide this in respect of each count and in doing so could make use of the similar fact evidence for the purposes explained by the trial judge.  The form of reasoning that the jury had to be prevented from employing was that if they found the applicant guilty of either count they could not take that finding into account when considering their verdict on the remaining count and nor could they reason that because such a finding implicitly rejected her explanation for that killing, she was, therefore, a person inclined to murder.

69.The judge, in his directions to the jury, reminded them not to assume that because the applicant was guilty of one offence, she was guilty of the other offence and he further emphasized the limited use of the similar fact evidence:

“When you consider these two counts on the indictment, you must consider the case for and against the defendant on each count separately. The evidence concerning each count is different and therefore, simply because you convict or acquit the defendant on one count does not necessarily mean your verdict in respect of the other count would be the same. It is most important, when you are considering one count, that you do not jump to the conclusion that the defendant intended to kill, or intended to cause really serious injury to the victim of that count just because you have heard evidence of her involvement in the other count.

It is most important when you are considering her defences in respect of one count that you do not jump to any conclusion about her defences in respect of that count because you have heard evidence of what she says occurred in the other count. You must keep your considerations of each count separate and you must decide each count only on the evidence which relates to that count. That is because, as I say, the evidence in respect of each count is different and the issues are different and it follows that your verdicts may be different in respect of each count.

I want to particularly emphasise that what you must not do is assume that because the defendant was guilty of one offence, she was guilty of the other offence as well. In other words, if, in the event you find her guilty of one offence, that does not mean you find her guilty of the other offence. You do not make any assumptions of that sort. You consider the counts separately and arrive at your verdict in the light of the evidence relating to that particular count.

As has already been said, I think, by counsel in their speeches, there is, however, one limited use you can make of the evidence in one count when you consider the other count. You can consider the similarity in the facts concerning the two counts when you are considering the intent and state of mind of the defendant so far as each count is concerned. You can also consider the similarity in the facts of the two counts when you consider whether the defendant may have been attacked by each of these two old ladies, as she said she was, and was acting in self-defence. That is the only use you can make of any factual similarities you find to exist between each of the two incidents. You can make no other use of those similarities.” (Emphasis added)

70.The only issue based on the similar fact evidence was whether the applicant’s defences of self defence, provocation or lack of intent were probable.  The jury were reminded on a number of occasions that they could only use the similar fact evidence for these limited purposes.  The judges directions on the use that the jury could make of this evidence were quite clear and we are in no doubt that the jury must have been aware of the restrictions surrounding their use of this evidence.

71.Operating in conjunction with these directions on the limited use that the jury could make of the similar fact evidence were the judges directions on “separate consideration”.  That is, the judge’s direction to the jury that they must not assume, because the applicant was guilty of one charge, that she was also guilty of the other charge.  By this direction the judge was in effect reminding the jury that they must not find the applicant guilty of one charge because of the evidence in relation to the other charge. 

72.Finally, and importantly, the judge directed the jury not to reason (“you do not jump to any conclusion”) that her defence in respect of one count is not believable because of the evidence they have heard on another count.

73.Looking at the directions as a whole and not dissecting them as though they were a legal document whose language the court had to construe, can it be said that they were adequate in terms of what had to be conveyed to the jury.  In the context of the facts and issues before the jury in this case, the directions, in our view, amounted to a clear warning in respect of propensity.

74.We were satisfied that the judge’s directions on the similar fact evidence were thorough and sufficient in the circumstances of the present case.  There was no risk of the jury drawing the impermissible inference that the applicant was a person whose character or disposition was such that she was likely to have committed the offence charged on either count or that because she had committed murder on one count she was the kind of person who was likely to have done so on the other count. 

75.We were satisfied that the convictions against the applicant on the two counts of murder were safe and satisfactory and we therefore dismissed the application for leave to appeal against conviction.

76.As sentence for murder is fixed by law, the application for leave to appeal against sentence was also dismissed.

Mr William Tam, DDPP of the Department of Justice, for the Respondent

Mr Philip Ross, instructed by Reimer & Partners assigned by the Director of Legal Aid, for the Applicant (re: conviction only)

The Applicant appeared in person (re: sentence)