HKSAR v. Tam Ho Nam

CACC 405/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 405 OF 2011

(ON APPEAL FROM HCCC NO. 69 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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

Introduction

1.The applicant (Tam Ho-nam), aged 18, was charged with the murder of Lau Shuk-fan (the deceased).  The applicant pleaded not guilty to the charge and stood trial before Saw J (the judge) sitting with a jury.  On 15 September 2011, the applicant was convicted as charged and sentenced to life imprisonment.  Represented by Mr G McCoy SC, the applicant sought leave to appeal against conviction.

2.On 20 September 2012, we dismissed the application and indicated that we would hand down our reasons in due course.  These are the reasons.

The Facts

3.The applicant lived with his elder brother (Tam Pak-yan) and his mother at Room 1220 Oi Fai House Yau Oi Estate in Tuen Mun (the premises).

4.The deceased was 19 and was the applicant’s girlfriend.  They met each other in early 2009 and they soon started dating.  They became close quickly and by early April 2009, the deceased moved into and often spent the nights in the premises, sharing the lower bunk with the applicant whilst Pak-yan would sleep on the upper bunk in the same room.

5.On 29 April 2009, in the early evening, the applicant used a chopper to chop the deceased to death.

6.According to one of the experts, Dr Wai, who visited the premises after the killing, there were five separate cast-off patterns of blood spatters in the lower bunk bed area.  The cast-off patterns of blood smears were the result of blood being thrown from a knife when it was being wielded.  Dr Wai said that the blood smears on the wall next to the lower bunk bed were caused by the blood on the head of the deceased having been transferred directly onto the wall in the course of a struggle.

7.Dr Wai suggested that the deceased had been struck many times whilst she was either sitting or crouching and lying on the lower bunk bed by a thin-bladed object such as a chopper and that the only location where she was struck was the lower bunk bed.

8.According to Dr Wai, the bloody footprints and the blood trails on the floor in the lounge and sitting area as well as blood in other part of the premises came from the applicant.

9.The pathologist, Dr Poon, said there were a total of 64 separate wounds on the body of the deceased, including 50 cut wounds.  He opined that a great deal of force was required to inflict those wounds, particularly those on the limbs.  Dr Poon pointed out an injury to her hand where the blade of the weapon had gone through and came out the other side of the hand.

10.Pak-yan, in his evidence, said when he returned to the premises at about 5 pm on 29 April 2009, the deceased was asleep and he just set about doing some chores.  Later his friend (Leung Kam Fai) came with some orange juice and after he left, Pak-yan also went downstairs as another friend wanted to borrow some money from him.  When he returned to the premises later, he could not get in as the door was chained from the inside.  Pak-yan said he saw blood all over the place.

11.When the applicant came to the door, he said he had killed someone and he asked Pak-yan “had he made out with his girl”. Pak-yan said he had done nothing of that sort and the applicant began to cry. The applicant then opened the door and Pak-yan made a report to the police. Pak-yan said at the time, the applicant, looking very frightened, asked him to hurry up to call the police as the deceased was then still breathing.

12.Pak-yan said he seldom talked to the deceased and had not “interfered” with her.  Pak-yan said he was not aware of the presence of any long female hair in the bunk bed, or any cigarette butt of the brand smoked by the deceased in his ashtray, or that his bed was ruffled and untidy with the smelt of sweat as if someone had just had intercourse in it.

13.Pak-yan confirmed that the applicant and the deceased had a close and intimate relationship, and that the applicant was infatuated with her.  Pak-yan also confirmed that the applicant’s character had changed over the past year and he had become more doubting.

14.The ambulance man confirmed that when he arrived at the premises, the deceased was already dead and there were a lot of knife wounds on her body.  He also confirmed that the applicant had knife wounds to both upper limbs and on his neck with loss of a lot of blood.  The ambulance man said when they got into the ambulance car the applicant told him that his elder brother and his girlfriend “made out” with each other so he chopped his girlfriend.

15.A police officer who arrived at the premises also said that the applicant told him to be quick to save his girlfriend.  The applicant further tried to say that he thought there was something between his elder brother and his girlfriend.

16.When arrested for murdering the deceased, the applicant said he did not kill her with intent.  He said he was trying to scare her but she reacted in an unexpected manner upon seeing him holding a knife.

17.In subsequent interviews, the applicant said he suspected the deceased had an affair with Pak-yan, but the deceased denied it. The applicant said he found empty packet and cigarette butts of the brand smoked by the deceased in the ashtray in Pak-yan’s bed which was ruffled and untidy with smelt of sweat which made him more suspicious.  He said he kept questioning the deceased who denied and just looked at him, and then kept silent, which to him was a tacit admission. 

18.The applicant further said that the deceased had smell of shampoo, but she denied having taken a shower.  The applicant then took out a chopper to scare her, to give her one more chance to speak if she had an affair with his elder brother.  However the deceased denied and asked the applicant to wake up.  It was then the applicant started to chop her indiscriminately.

19.The applicant also said the deceased chopped him back, and he got mad and was unable to control his emotion.  He said he just kept striking her with the chopper until she was “strengthless”.  The applicant then used the chopper to slash his own hand because he wanted to die with her. The applicant suggested that he was under the influence of “ice”.

20.It was the prosecution case that the applicant had lost his temper and killed the deceased in a rage as he suspected that the deceased was having an affair with Pak-yan.

The Defence Case

21.The applicant admitted that he had chopped the deceased and killed her.  He suggested that he did not kill her with intent as he was only trying to scare her with a chopper.  The applicant also relied on the partial defence of provocation.

22.The applicant in his evidence said he met the deceased around Lunar New Year in 2009 and their relationship had rapidly developed.  However in early March 2009, the applicant felt that the deceased was showing indifference and resistance to him.  The applicant said he felt suspicious when he saw the deceased using her foot to play with his elder brother’s chair.

23.According to the applicant, he received a message from the deceased to the effect that Pak-yan had returned to the premises and that he too should return.  The applicant said he became very anxious and kept thinking about what had happened between the deceased and himself in the past, and he wanted to confront her with the suspicions he had.

24.However, when he asked the deceased, she was reluctant to answer and he felt that she was rather indifferent to him.  They then had a quarrel and Pak-yan and a friend “Ah Fui” left the premises.

25.The applicant said he then started investigating the premises and found that Pak-yan’s bed was wet with a strong smell of sweat.  There were hairs of a girl on the pillow and cigarette butts of the brand usually smoked by the deceased in his ashtray.  The applicant said he was convinced that there was something between the deceased and his elder brother.

26.When he confronted the deceased, she was impatient and was reluctant to answer, telling him not to bother her as she was sleeping.  The applicant said he found it very difficult to control his emotion and it was the lowest point of his life as he could not accept that the deceased was having an affair with his elder brother.

27.However, the more he asked the deceased, the more she became impatient and she refused to deny that she had an affair with Pak-yan.  When the applicant asked her about the items on his brother’s bed, she said, “So what if they were really found, big deal, so what if I ‘made out’ with your brother”.

28.The applicant further said that the deceased accused him of being useless and was unable to satisfy her sexually.  When the applicant said to the deceased, “You are admitting having an affair with my elder brother, right?” the deceased simply said she did not want to talk to him anymore.

29.The applicant said he was boiling with anger and his emotions had got the better of him, and he went to the kitchen to get the chopper.  The applicant said he did not intend to use it, but on seeing this, the deceased pushed the applicant away and they then had a struggle.

30.The applicant said during the struggle, he noticed the deceased was bleeding and he put down the chopper, trying to compose himself.  When he tried to pick up a telephone, the deceased attacked his head from behind with the chopper.  Thereafter the applicant could not restrain his emotions and he was in a state of frenzy.  He snatched the chopper from the deceased and chopped her indiscriminately.  The applicant said he had closed his eyes whilst he wielded the chopper frantically until the deceased was unable to grab hold of him.

31.On seeing that the deceased was motionless on the bed and thinking that she was dead, the applicant tried to commit suicide by slashing both of his wrists before locking the door and then lying down on the bed with the deceased.

32.Shortly thereafter Pak-yan knocked on the door and the applicant asked him if he had an affair with the deceased.  Pak-yan replied, “No, have you gone out of your mind?”

33.According to the applicant, he did ask Pak-yan to call the police when he realised that the deceased was still alive.  The applicant claimed that he loved the deceased a great deal.

34.When confronted with the different accounts that he gave to the police, the applicant said he did not want to say hurtful thing about the deceased and he did not want to describe her shortcomings.  The applicant accepted that he did not tell the police that the deceased had accused him of being useless and sexually inadequate and poor, but explained that it was because he did not want to say something bad about her.  He also said he was confused.

The Judge’s Summing Up

35.In his summing up to the jury, the judge reminded them that if they were satisfied of all the ingredients of murder, it would be necessary to them to consider the issue of provocation, namely whether the applicant was, or may have been provoked into acting as he did, provoked by things said or done by the deceased and/or Pak-yan, or a combination of all of those things.  The judge further said:

“That conduct, it is said, consists of those acts by either Miss Lau or his elder brother, or both of them, which gave rise to a suspicion in the mind of the accused that she was engaged in an affair with his elder brother. It was that suspicion that led to an argument and which caused the accused to inflict the chop wounds to Miss Lau before and after she struck him on the head. In that regard, there are also, which we will return to in due course, what it is alleged that she said to him.”

36.The judge then, distributed written directions to the jury, which dealt with the question of provocation comprehensively.  The written directions on provocation, which the judge repeated orally with corrections of typographical errors, were as follows:

“If you are sure that the accused unlawfully killed Miss Lau intending to kill her or to cause her really serious bodily harm, the accused is guilty of murder, unless you conclude that this was, or may have been, a case of provocation. Provocation is not a complete defence leading to a verdict of not guilty. It is a partial defence reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the accused’s guilt, it is for the prosecution to make you sure that this was not a case of provocation and not for the accused to establish that it was.

Provocation has a special legal meaning and you must consider it in the following way. First, you must ask yourselves whether the accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said or done, in this case by Miss Lau or his elder brother, rather than just by his own bad temper.

…

Although provocation, which reduces murder to manslaughter, applies only if the act of the accused is committed suddenly upon a provoking event, that does not require you to ignore past behaviour by Miss Lau or his brother since an incident which is trivial when examined in isolation might nonetheless be one which might cause a reasonable man to react explosively in the context of provocation over an extended period.

The things said and done which it is said caused the accused to be provoked - I will come back to these in more detail - but, stated briefly, are the things said and done by Miss Lau and the accused’s brother since March of 2009 which gave rise to a suspicion in the mind of the accused that they were having an affair: the verbal confrontation on 29 April when she refused to deny this; the fact that she described him as useless, poor and sexually unsatisfying; and finally, by her striking him on the head with the chopper. When considering this, you should take into account what the accused said to the police and to you about his consumption of dangerous drugs and its effect on him.

If you are sure the accused was not provoked in that sense, the defence of provocation does not arise and the accused is guilty of murder. But if you conclude that the accused was, or might have been, provoked in the sense which I have explained, you must ask yourselves this question: was or may that conduct have been such as to cause an ordinary and sober person of the accused’s age, sex and personal circumstances, to do as he did?

…

An ordinary person is simply a person who has the powers of self-control to be expected of any ordinary sober person who is of the accused’s age, sex and personal circumstances and is not affected by the consumption of dangerous drugs. What is to be expected of an ordinary person? The law expects persons to exercise control over their emotions. If, for example, a person has low self-control, an unusually volatile, excitable or violent nature, he cannot rely on that as an excuse. So the ordinary person in this context is a person who is not exceptionally excitable or given to violence but possesses such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

Therefore, members of the jury, when considering this question, you must take into account everything which was done according to the effect which, in your opinion, it would have on that ordinary person. If you are sure that what was done would not have caused an ordinary sober person of the accused’s age, sex and personal circumstances to do as he did, the prosecution will have disproved provocation. Then, providing that the prosecution has made you sure of the ingredients of the offence of murder, your verdict will be guilty of murder.

If, on the other hand, your answer is that what was done would, or might, have caused an ordinary sober person of the accused’s age, sex and personal circumstances to do as he did, your verdict will be not guilty of murder but guilty of manslaughter by reason of provocation.” (Emphasis added)

Grounds of Appeal

37.The only ground of appeal raised by Mr McCoy related to the judge’s directions to the jury on the issue of provocation.

38.Mr McCoy argued that in considering the question of “Was or may that conduct have been such as to cause an ordinary and sober person of the accused’s age, sex and personal circumstances to do as he did?”, the judge had misdirected the jury by telling them that:

“..you must take into account everything which was done according to the effect which, in your opinion, it would have on that ordinary person.” (Emphasis added)

39.Mr McCoy suggested that instead of “it would”, the judge should have said “it would or may have on that ordinary person” as the correct test should be whether the provocative conduct “would or may” cause a reasonable person to lose his self-control.

40.An identical ground of appeal was used in support of an application for leave to appeal against a murder conviction in HKSAR v Ngan Lak-kwong (CACC 14/2010) and this court (differently constituted) rejected that ground of appeal and took the view that despite the judge’s use of the phrase: “it would have on that ordinary person”, the overall effect of his summing up was sufficient to make clear that the defence of provocation was made out if the jury thought that the alleged provocative conduct may have caused an ordinary and reasonable person to do as the accused did.

41.For our purpose, it is sufficient to repeat paragraphs 137 and 138 of the judgment of the court in Ngan Lak-kwong (supra):

“137. Section 4 of the Homicide Ordinance Cap 339 set out the defence of provocation in the following terms:

‘where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.’ (Emphasis added)

138.   It requires the jury to consider how a reasonable person would respond to the provocation offered.  The answer may be one of the following three, namely (1) a reasonable person would not respond as the accused did; (2) a reasonable person would respond as the accused did; or (3) a reasonable person may respond as the accused did.  If it is the 2^nd or 3^rd answer, then the prosecution has not negated provocation.  Although a jury must ask themselves how a reasonable person would respond, the ultimate question for determination is whether on the facts found in the case, the act or series of acts done and/or words spoken which caused in the accused a sudden and temporary loss of self-control would or may cause a reasonable person to lose his or her self-control and to behave as the accused did, and that was the overall effect of the judge’s directions.  It was made clear to the jury that the defence of provocation was made out (in the sense that it was not disproved by the prosecution) if the jury thought that the alleged provocative conduct may have caused an ordinary and reasonable person to do as the applicant did…”

42.One of the issues involved in the defence of provocation is what effect the things done or things said or both would have on a reasonable man.  If the jury accept that the things done or things said or both would or may cause a reasonable person to lose his or her self-control and to behave as the accused, the issue will have to be resolved in favour of the accused.  If they are sure that such a person would not have reacted in a similar way, the defence fails. (Emphasis added and see the judgment of Chan PJ in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354 at p 367)

43.When the judge posted the question: “…you must take into account everything which was done according to the effect which, in your opinion, it would have on that ordinary person”, the judge was simply placing the relevant issue for the jury’s consideration.  The judge then gave detailed instructions to the jury as to how that issue should be resolved.

44.The judge, who was the same trial judge as in Ngan Lak-kwong (supra), both in his oral and written directions to the jury, had repeatedly reminded them that they had to consider if the “provocation” which caused in the applicant a sudden and temporary loss of self-control would or may cause a reasonable person to lose his self-control and to behave as the applicant did.

45.The judge, in the opening paragraph on his written direction to the jury on provocation, instructed the jury that “…unless this was, or may have been, a case of provocation.” The judge further emphasized to the jury: “...an incident…might be one which might cause a reasonable man to react explosively…”; “Was or may that conduct have been such as to cause an ordinary and sober person of the accused’s age, sex and personal circumstances to do as he did?”; “If, on the other hand, your answer is that what was done would, or might, have caused an ordinary sober person of the accused’s age, sex and personal circumstances to do as he did, your verdict will be …guilty of manslaughter by reason of provocation.” (Emphasis added)

46.The judge’s approach could not be faulted.  We were satisfied that the overall effect of the judge’s direction to the jury had correctly set out the legal position with regard to the defence of provocation and the only ground of appeal had no merits.

47.We therefore dismissed the application for leave to appeal against conviction.

Mr Simon Tam, SADPP of the Department of Justice, for the Respondent

Mr Gerard McCoy, SC instructed by C Yu & Co assigned by the Director of Legal Aid, for the Applicant