HKSAR v. Wan Kim Chung

CAC C 185/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 185 OF 2012

(ON APPEAL FROM HCCC NO. 351 OF 2011)

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BETWEEN

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REASONS FOR JUDGMENT

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

Introduction

1.The applicant (Wan Kim-chung) was convicted after trial before Macrae J sitting with a jury of murdering Yu Wai-yuk (the deceased) on 27 October 2010.  Represented by Mr Gerard McCoy SC, the applicant sought leave to appeal against conviction.  At the end of the hearing on 25 April 2013, we dismissed the application and indicated that we would hand down our reasons in due course.  These are the reasons.

The Facts

2.The body of the 25 years’ old deceased, partially clothed in a bra and a grey T-shirt with the lower part of her body naked, was recovered from the sea off Hong Kong Island shortly before 8.30 a.m. on 27 October 2010.  The cause of death was drowning although there were clear signs that she had been strangled before she was drowned.

3.The applicant, a taxi-driver, was arrested on 1 November 2010 for murdering the deceased.  In subsequent video-recorded interviews, the applicant detailed his relationship with the deceased and the circumstances leading to her death.

4.The applicant said that having known the deceased, he had contact with her by telephone calls and text messages.  He said he lent the deceased $10,000 and they started to have sex, once a week on average.

5.The applicant said that after collecting the deceased in his taxi from her place of work in the evening of 26 October 2010, he drove her to a secluded spot near Tai Hang Hau Village in the New Territories with a view to having sex.  They did not do so as a private car appeared nearby.

6.They chatted and the applicant said the deceased demanded money from him and at the same time wanted to cease their relationship.  They had an argument and the applicant thought that the deceased was taking advantage of him financially.  In the course of the argument, they used their hands to hit each other and the deceased used her elbow to hit the applicant’s private parts.

7.The applicant said he felt painful and used his hands to strangle the deceased until she became unconscious.  The applicant placed the body of the deceased in the boot of his taxi and threw her jeans, underpants and shoes into the surrounding undergrowth.  The applicant then drove his taxi, with the deceased in the boot, to Lee Nam Road in Ap Lei Chau where he took the deceased from the boot to the edge of the pier and threw her body into the sea.

8.The applicant appeared to have suggested that when he threw the deceased into the sea, he thought that the deceased had just fainted or was unconscious.

9.The applicant, in a subsequent reconstruction exercise, led the police to recover items of the deceased’s clothing.  He suggested in the course of the reconstruction exercise that when he dumped the deceased body into the sea, he thought that she was already dead.

10.The pathologist put the time of the deceased’s death at between four to five hours before midday on 27 October 2010.

The Prosecution Case

11.It was the prosecution’s primary position that the applicant strangled the deceased, with the intention of killing her, to the point of unconsciousness and then threw her into the sea, knowing that she was still alive in order to conceal what he had earlier done to her.

12.The prosecution’s secondary position was that the applicant had unlawfully strangled the deceased with the intention to kill her or to cause her serious bodily harm.  However the strangling did not kill the deceased although the applicant had mistakenly thought that she had been killed.  He then decided to dispose of the body of the deceased by throwing it into the sea, which was what in fact killed her.

13.Under its secondary position, the prosecution contended that the actions of the applicant i.e. the strangling of the deceased and the throwing of her body into the sea were parts of the same transaction or sequence of events which culminated in her death and consequently the applicant was still guilty of murder.

The Defence Case

14.The applicant did not deny killing the deceased. He said he killed her under provocation and should therefore be guilty only of manslaughter.

15.It was also suggested that when he strangled the deceased with the intention to kill her or cause her grievous bodily harm, he did not in fact kill her and when he threw her into the sea he had no intention to kill or cause her grievous bodily harm as he thought she was already dead.  In the circumstances, the applicant was not guilty of murder but should only be guilty of attempted murder for strangling her or of manslaughter for throwing her into the sea which killed her.

16.The applicant gave evidence and described how he ended up throwing the deceased’s body into the sea.  The applicant’s case was that he had had a relationship with the deceased, but she did not love him and was only taking advantage of him for financial gain.

17.According to the applicant, he first met the deceased in November 2009 when she boarded his taxi and sat in the front passenger seat and they exchanged telephone numbers.

18.Thereafter, the deceased telephoned him so that he could pick her up to and from work and they started to communicate with each other regularly.  In February 2010, they met for dinner when the applicant conveyed to her that he had feelings for her.  The applicant would daily give the deceased a lift to and from work and they became boyfriend and girlfriend.  They would have meals or tea, go shopping or go to the cinema together and would sometimes hold hands.

19.The applicant subsequently learned that the deceased had a German boyfriend and when he confronted her, she told him that her boyfriend would be going to Beijing for business.  The applicant continued with his relationship with the deceased although the deceased tried to avoid giving others the impression that she was his girlfriend.  Her excuse was that she did not want others to know that she was carrying on relationships with two boyfriends at the same time.

20.The applicant said that he had given the deceased money and had incurred expenses for her, and in July 2010, the deceased asked him for $10,000 to buy some electrical appliances.  The applicant said he had to borrow money to meet the deceased’s demand, but nothing was mentioned about the repayment.  The applicant said it was on the day when he agreed to give her the money that they first had sex and on the day when he deposited money into her bank account, they had sex again.  Since then, they had sex regularly.

21.However the applicant was unable to contact the deceased subsequently and he later learned from her friend (Ah Chu) that the deceased had gone to Beijing.  The applicant believed that the deceased must have used the money obtained from him to travel to Beijing.

22.On a day in October 2010, the deceased again asked the applicant for $8,000, but he only deposited $300 into her account.  According to the applicant, he learned on 23 October 2010 from Ah Chu that the deceased had been living with her German boyfriend and he was very angry.

23.The applicant then described the events on 26 October 2010.  He said they went to the usual spot in Sai Kung where they would have sex.  When they were in the acts of intimacy, there were lights from another vehicle and they stopped.  They then talked about the problems in their relationship.  The deceased told the applicant that her boyfriend would be returning from Beijing in a few days’ time and she wanted to stop their relationship.

24.She then asked him for money and the applicant refused and there was bodily contact when she elbowed him in the groin and it was painful.  The applicant said he was angry and unhappy that she should want to terminate the relationship. He felt that the deceased did not really love him, but was only taking advantage of him financially.  He said he had tried to put a stop to the relationship in the past but she would call him back after a period of time.  The applicant also said that the deceased teased him, saying that he was not as good as other people and not as good as her boyfriend as he did not have a good income and was only able to give her a few hundred dollars.

25.The applicant said he “burst out” and became very angry.  He grabbed her neck with both hands as he had lost control.  According to the applicant, the deceased initially fought back, hitting him on the chest with her hands, but after a short period, she did not move.  The applicant released his hands and she was unconscious, leaning against the window with no response.  The applicant said he was unsure if she was still breathing and he found both her mouth and face swollen and her face bruised and black.  The applicant said he thought the deceased was already dead when he kept calling her name but there was no response.

26.After a time, the applicant put the deceased into the boot of his taxi before dumping her trousers and underpants as well as her shoes in the bushes.  He then drove his taxi, pondering how her body should be disposed of.  He thought of dumping the dead body into the sea so that it would not be easily discovered.  He then drove to Ap Lei Chau and arrived there sometime after 10 p.m.  When everything was quiet, the applicant opened the boot of the tax and carried what he thought was a dead body to the pier and threw it into the sea.  The applicant said if he had known that the deceased was still alive, he would neither have put her into the boot of his taxi, nor thrown her into the sea.

27.When asked why he said in the interview by the police that he thought the deceased was unconscious, he was adamant that he thought that he had killed her when he strangled her and that in his mind she was dead when he threw her into the sea.

The Judge’s Summing-Up

28.On the prosecution’s secondary position, the judge said to the jury:

“Members of the jury, in this particular case, if you were to find so that you were sure that the defendant, when he strangled (the deceased) in the car, intended either to kill her or to cause her really serious bodily harm and if you were sure he was not provoked in law when he did so, and if you were sure that the eventual act which caused her death by drowning was part of the same transaction or sequence of events as the earlier strangling, the fact that there is a significant interval of time between the two events does not excuse the defendant from liability for murder.

The strangulation was the opening event in a series or sequence of events which was to culminate in the death of (the deceased), the first link in the chain of causation if I may use that expression. The subsequent actions of the defendant in dumping (the deceased’s) body in the sea in order to conceal his commission of the original strangling of (the deceased) and, thereby, to evade or escape liability for what he had done would not break that chain which linked the initial strangulation with the eventual death.

So in the circumstances of this particular case and this secondary or alternative position of the prosecution, the intention of the defendant towards (the deceased) in the car in Tai Hang Hau and the act which subsequently caused her death in Ap Lei Chau do not need to coincide in time provided you are sure that the killing was unlawful, that when the defendant strangled her, he intended either to kill her or to cause her really serious bodily harm, that he was not acting under provocation, as I have defined that term in law, when he strangled her and that the events in the car and the eventual act which caused her death were linked and were part of the same transaction or sequence of events.” (Emphasis added)

29.It appears that the judge had discussed his proposed directions with counsel on both sides in relation to the issue of coincidence of mens rea and actus reus.  The judge gave counsel a handout of his proposed directions on the issue and asked for their comments.  He made it clear that he was relying on principles established in R v Church (1965) 49 Cr App R 206, R v Le Brun [1992] 1 QB 61.  The judge also referred to HKSAR v Lam Chun-wah [1999] 3 HKLRD 381 and R v Moore and Dorn [1975] Crim LR 229.

30.Defence counsel did not object to the way the judge proposed to deal with issue and said he had no comments to make on the judge’s proposed directions to the jury.

Grounds of Appeal

31.Nothing turned on the issue of provocation.  The only grounds of appeal put forward by Mr McCoy related to the judge’s direction to the jury on the prosecution’s secondary position.

32.Mr McCoy suggested that the judge erred in law in leaving to the jury the offence of murder when the evidence clearly demonstrated that when the applicant had the intention to kill the deceased by strangulation he did not in fact kill her; and several hours later when he had no intention to kill the deceased (wrongly believing she was already dead), he did in fact kill her by causing her to drown.

33.Mr McCoy therefore submitted that the applicant should only be guilty of attempted murder for strangling the deceased or manslaughter for throwing her body into the sea without any intention to kill or to cause grievous bodily harm.

34.Recognizing his difficulties in advancing his argument in the light of the decisions in Le Brun (supra), R v Hui Yiu Fai [1993] 1 HKC 223 and Thabo Meli v R [1954] 1 WLR 228 (PC), Mr McCoy nevertheless suggested that the present case was different from Thabo Meli (supra) as there was never a pre-conceived plan to strangle the deceased and then dispose of her body by throwing it into the sea.

35.Mr McCoy suggested that the way the judge directed the jury on the prosecution’s secondary position had the effect of wrongly permitting the jury to find that the applicant had a murderous intention when he placed the deceased’s body in the water even though he thought that the deceased was already dead.

36.Mr McCoy emphasized that when the applicant threw the deceased’s body into the sea she was still alive, and he would not have any intention to kill or cause serious bodily harm as he thought he was dealing with a corpse.  His contention was that one could not murder a dead body.

37.Mr McCoy suggested that unless the applicant believed that the deceased was still alive when he threw her body into the sea, there was no causation in fact or law to support the murder conviction.  Mr McCoy argued that the applicant’s belief that the deceased was dead when he threw her body into the sea had terminated his causal liability.

38.Mr McCoy submitted that the strangulation of the deceased and the subsequent disposal of her body by throwing it into the sea could not have been a single compendious act with the continuing intention with which it was originally initiated.  He said the applicant’s belief when he threw the deceased’s body into the sea was that the deceased was already dead and such belief was a fundamental change in the applicant’s state of mind from that at the time when he strangled her.

39.Mr McCoy suggested that by directing the jury that “the subsequent actions of the defendant in dumping (the deceased’s) body in the sea in order to conceal his commission of the original strangling of (the deceased) and, thereby, to evade or escape liability for what he had done would not break that chain which linked the initial strangulation with the eventual death”, the judge had in effect taken away from the jury the alternative of finding manslaughter because of the alteration in the state of mind of the applicant.

40.Mr McCoy emphasized that it was a question of fact for the jury to decide if the strangulation of the deceased and the throwing of her body into the sea were part of the same transaction or sequence of events.  He suggested that the judge had usurped the function of the jury.

41.Mr McCoy put forward the following rhetorical question: “Why should the mens rea which is the mens rea for the common law offence of failing to bury a body/unlawful disposal of the body be the mens rea for murder?” 

42.Mr McCoy cited R v Khandu (1890) ILR 15 Bombay 194 and the judgment of the Southern Rhodesia Court of Appeal in R v Chiswibo [1961] (2) SA 714 to support his contention.  In particular, Mr McCoy pointed out that in Chiswibo (supra)the Courtwas considering a case where the appellant struck another with an axe.  Believing wrongly that the victim was dead, he put the body in a hole.  The Court concluded that the burial in the hole had caused the death and that the accused was therefore not guilty of murder.

43.Mr McCoy further pointed out that the Southern Rhodesia Court distinguished Thabo Meli (supra) on the grounds that the separate acts of striking and burial were not shown to be part of the “one transaction” and there was no intent of a type which could endure to make what was done “really one transaction”.

44.Mr McCoy suggested that another obvious danger of the “one transaction” argument was that by removing the emphasis from the initial act which was actuated by the mens rea for murder, an accused would be convicted of a death which was really the result of an accident.

45.Mr McCoy argued that in so far as the judge had failed to leave to the jury the possible alternative verdicts of attempted murder in relation to the strangulation and manslaughter in relation to the drowning when he was under a duty to leave all available verdicts for which there was an evidential basis, the conviction of murder against the applicant was unsafe and unsatisfactory.

Discussion

46.The factual circumstances of this case are quite unusual and they have enabled Mr McCoy to put forward many interesting arguments, in his written submissions, on whether one could murder a dead body; whether there had been a change in the applicant’s state of mind when he threw the deceased’s body into the sea from that at the time when he strangled her; whether the mens rea for the common law of offence of unlawful disposal of the body could be mens rea for murder etc.  However, as unusual as these factual circumstances are, they are not unique and his arguments have been considered in a number of cases where the courts were faced with similar factual scenarios.

47.In Thabo Meli (supra), the appellant brought the victim to a hut, struck him on the head and then rolled him over a cliff, thinking that the victim was already dead.  The blow to the head did not kill the victim and death in fact resulted from the exposure at the foot of the cliff.  On the basis that the attack in the hut and the rolling of the body over the cliff were separable, it was argued on behalf of the appellant that while the first act was accompanied by mens rea, it was not the cause of death; but that the second act, while it was the cause of death, was not accompanied by mens rea; and on that ground, it was said that the appellant was not guilty of murder.

48.The Judicial Committee of the Privy Council rejected the argument and held at p 230:

“It appears to their Lordships impossible to divide up what was really one transaction in this way. There is no doubt that the accused set out to do all these acts in order to achieve their plan and as parts of their plan; and it is much too refined a ground of judgment to say that, because they were under a misapprehension at one stage and thought that their guilty purpose had been achieved before in fact it was achieved, therefore they are to escape the penalties of the law. Their Lordships do not think that this is a matter which is susceptible of elaboration….”

49.Mr McCoy did not suggest that Thabo Meli was wrongly decided, but argued that it could be distinguished because there was a pre-conceived plan in Thabo Meli to kill whereas there was none in the present case.  Such distinction was clearly not recognized in other similar cases.

50.In Church (supra), the accused had sex with a woman but was unable to satisfy her.  She then reproached him and slapped his face; they then had a fight, during which he knocked her out and soon afterwards, while she was still alive, flung her into a river.  She continued to breathe for an appreciable time afterwards and the eventual cause of her death was drowning.  The accused claimed that when he threw the body into the river where the woman was drowned, he thought that she was dead.

51.The Court, on the judge’s direction to the jury that they could not convict the accused of murder unless it had been proved that he knew that the woman was still alive when he threw her into the river or (at least) that he did not then believe that she was dead, took the view that such a direction was unduly benevolent to the accused.  The Court further said at p 210:

“…that the jury should have been told that it was still open to them to convict of murder, notwithstanding that the appellant may have thought his blows and attempt at strangulation had actually produced death when he threw the body into the river, if they regarded the appellant’s behaviour from the moment when he first struck her to the moment when he threw her into the river as a series of acts designed to cause death or grievous bodily harm.”

52.A similar approach was taken in Le Brun (supra). The Court of Appeal considered Church and stated at p 106:

“It seems to us that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant’s subsequent actions which caused death, after the initial unlawful blow, are designed to conceal his commission of the original unlawful assault.

It would be possible to express the problem as one of causation. The original unlawful blow to the chin was a causa sine qua non of the later actus reus. It was the opening event in a series which was to culminate in death: the first link in the chain of causation, to use another metaphor. It cannot be said that the actions of the appellant in dragging the victim away with the intention of evading liability broke the chain which linked the initial blow with the death. In short, in circumstances such as the present, which is the only concern of this court, the act which causes death, and the necessary mental state to constitute manslaughter, need not coincide in point of time….” (Emphasis added)

53.In Tara Chand v R [1968] 14 Fiji LR 73, the Court of Appeal of Fiji expressly held that no existence of a pre-conceived plan was required provided that there is a sufficiently connected series of acts leading to the death.

“We hold therefore that the three appellants were guilty of murder if, with malice aforethoughteither in the form of intent to kill or in the form of intent to do grievous bodily harm, they inflicted grievous injuries on…, and then, mistakenly believing him to be dead, and in continuance of a course of conduct that may properly be regarded as indivisible, threw him into the water – whether in execution of a pre-arranged plan or merely on the spur of the moment – and thereby caused his death by throwing.” (P 84 G to H of the judgment)

54.The decisions in Church (supra) and Le Brun (supra) were followed in HKSAR v Lam Chun-wah [1999] 3 HKLRD 381 and HKSAR v Cheung Ki-wing [2002] 1 HKLRD 225.  The “one transaction” rule is the law that should be followed.

55.The issues put before us had been settled in Hui Yiu Fai (supra).  The facts in Hui Yiu Fai were similar with those in the present case.  The appellant in that case took part in kidnapping, beating and eventual strangulation of the deceased.  He wrongly believed that the deceased to have died and some ten minutes later, he tossed the body, tied down with weights, into the sea and the formal cause of death was drowning.

56.Mr McCoy, who was also counsel for the appellant in Hui Yiu Fai (supra) put forward before Court of Appeal as he did before us in an attempt to upset the conviction of murder against the appellant.  He failed and the Court of Appeal dismissed the appeal.  Just as the Court of Appeal in Hui Yiu Fai rejected his arguments, we, too, had to reject his identical submissions put before us.

57.We just wish to repeat parts of the judgment in Hui Yiu Fai (supra) which is binding on this court (see R v Yuen Shek-on [1987] HKLR 736):

“Mr McCoy seeks to distinguish Thabo Meli v R from the instant case because of the lack here of a preconceived plan. Further, he draws our attention to the volume of academic criticism of the decision.

In Tara Chand v R [1968] 14 Fiji LR 73, the Court of Appeal of Fiji (the judgment of the court being given by Gould VP) dealt with Mr McCoy’s preconceived plan point and, incidentally, with a number of decisions contrary to Thabo Meli to which Mr McCoy has also drawn our attention.

The facts there were that the three appellants had attacked the deceased and, after the attack, had thrown the apparently dead body into a creek. The medical evidence could not establish with certainty the cause of death.

The court applied Thabo Meli holding:

(1) The three appellants were guilty of murder if, with malice aforethought either in the form of an intent to kill or in the form of an intent to do grievous bodily harm, they inflicted grievous injuries on the deceased and then, mistakenly believing him to be dead, and in continuance of a course of conduct that may properly be regarded as indivisible, threw him into the water – whether in execution of a pre-arranged plan or merely on the spur of the moment – and thereby caused his death by drowning.

(2) The question whether such a course of conduct should be regarded as an indivisible whole is one to be decided by the tribunal of fact.

In the course of his judgment, Gould VP, at p 84B, said:

In R v Ramsay [1967] NZLR 1005, 1014, the New Zealand Court of Appeal appears to have regarded the absence of preconceived plan as a fundamental distinction between that case and Thabo Meli v R. But the facts of the two cases differed greatly. We need only say that, if it was intended to lay down a general proposition requiring a previous plan for the disposal of the body to justify a verdict of murder in a case such as the present one, we are, with all respect, unable to agree. Provided there is a sufficiently connected series of acts, we cannot see that it makes any difference whether the murderer disposes of the body in a manner previously planned or merely in such manner as may occur to him impromptu and on the spur of the moment.

And again at p 85F, he said:

We are aware that the Thabo Meli decision has been severely criticised in Russell on Crime (12^th Ed, pp 55-60). But we respectfully prefer the view expressed in Glanville Williams’ Criminal Law (General Part, 2^nd Ed, para 65) to the effect that ‘ordinary ideas of justice and commonsense require that such a case shall be treated as murder’. The present case sufficiently illustrates the extent to which commonsense might be offended were a different rule applied.

With respect, we are happy to adopt and agree with that which Gould VP has said.  We have no hesitation in accepting Thabo Meli asbeing correct and, consequentially, the directions in law given by the trial judge.  It, and they, accord with commonsense.”

58.Thus, it is the law of Hong Kong that where a person intends to kill or inflict grievous bodily harm upon another and in doing so renders that person unconscious and then, thinking that person dead, disposes of the body in a way which causes that person’s death, the person disposing of the body will be guilty of murder if, as a matter of fact, the act rendering the person unconscious and the dispositive act causing death can properly be viewed as part of one transaction, a continuous course of conduct, or a sufficiently connected series or sequence of events.  As is apparent, the authorities also employ the phrase “an indivisible whole” to convey the same concept in describing this situation.  By this means the common law overcomes problems that might otherwise be posed by a break in the chain of causation or by a lack of coincidence of actus reus and mens rea.

59.Mr McCoy realistically recognised that he would face considerable difficulty in persuading us to depart from Hui Yiu Fai and the case law on which it relies.  Instead he focuses upon the question which is central to this case, and which is a jury question, of whether what took place in the present case could be viewed by the jury as a continuous course of conduct and whether this issue was properly left to them to determine.  In this respect Mr McCoy relies heavily upon the fact that here there was a lapse of many hours before the applicant disposed of the deceased.

60.However, where the act of disposing of the body is done in order to enable the person responsible for the unlawful act which rendered the deceased unconscious to conceal his involvement in what be believes is that person’s death then that is very strong evidence that the unlawful act and the dispositive act are part of the one transaction.  The dispositive act can properly be viewed as the final act in a continuous course of conduct or part of a sufficiently connected series or sequence of events.

61.This point was made by the Fiji Court of Appeal in Tara Chand (supra) at page 85 A - B:

“…whether a course of conduct should be regarded as an indivisible whole so as to bring this rule into operation is one to be decided by the tribunal of fact. We respectfully accept this view, but desire to make it clear that in our opinion, where a person, believing himself to have committed culpable homicide, proceeds to dispose of the supposed corpse in order to conceal his guilt, the circumstances must be exceptional indeed in order to justify a negative answer to this question of fact; since the act of disposal flows as a natural sequence from the preceding act, and, even in point of time, must usually be closely related to it. We think that, in general, only an affirmative answer will be found to be reasonably open on the facts.”

The same point was made by the English Court of Appeal in Le Brun in the passage quoted earlier in this judgment.

62.In considering this question it is important to remember that although the act of disposing of the body may be what ultimately leads to the death of the individual, it is in fact the decision to dispose of the body which allows of the inference of concealment and which thereby provides the evidence of a causal connection between the act which rendered the deceased unconscious and the dispositive act which caused the deceased’s death and which enables the two acts to be viewed as part of a series or sequence of events or as part of one transaction or as an indivisible whole.

63.Mr McCoy argues that the lapse of time in the present case must mean that the causal connection was broken by the time the applicant committed the dispositive act.  But this argument wrongly focuses on the dispositive act rather than the decision to dispose.  There may be many reasons why a person, having made the decision to dispose of a body, is delayed in carrying out his intent.  He has to determine on a means and place of disposal and as he is disposing of the body in order to conceal his involvement with its death, he has to choose a time and an opportunity when he can dispose of it without being seen.  That is why a lapse of time does not necessarily break the causal connection between the two acts and prevent them from being viewed as the one transaction or a sufficiently connected series or sequence of events.  When there is such a lapse of time the key question is not how long it was but rather why there was such a passage of time between the two acts.

64.In the present case the applicant strangled the deceased to the extent that she became unconscious in Tai Hang Hau with the intention to kill her or to cause her grievous bodily harm.  He then considered what he should do and decided to dispose of the body.  He discarded the deceased’s items of clothing into the undergrowth before placing her half-naked body, face down, in the boot of his taxi.  He then drove his taxi all the way to Ap Lei Chau where, once nobody was around, he took the deceased from the boot of his taxi and threw her body into the sea.  Because of the distance he had to travel, because he had to find a suitable location and because he had to wait for a suitable opportunity there was, inevitably, a passage of time between the unlawful act rendering the deceased unconscious and the applicant’s dispositive act which led to her death.  Nevertheless, on the facts of this case it seems to us somewhat fanciful to suggest that those acts were not part of the same transaction or sequence of events.

65.Unlike the example cited by Mr McCoy when an accused attacked the victim with intent to kill but succeeded in inflicting non-fatal injuries, and in a haste to escape accidentally ran over the deceased and killed him, what the applicant did could clearly be part of the same transaction or sequence of events of killing the deceased and then disposing of her body.

66.Mr McCoy’s further complained that by his directions the judge usurped the function of the jury and took away from them the very issue they had to determine i.e. whether the unlawful act rendering the deceased unconscious and the dispositive act causing her death were one transaction or part of a series or sequence of events.

67.The judge said to the jury that “If you are sure that the eventual act which caused her death by drowning was part of the same transaction or sequence of events as the earlier strangling, the fact that there is a significant interval of time between the two events does not excuse the defendant from liability for murder” and “the strangulation was the opening event in a series or sequence of events which was to culminate in the death of (the deceased)…The subsequent actions…in dumping (the deceased’s) body in the sea in order to conceal his commission of the original strangling of (the deceased) and, thereby, to evade or escape liability for what he had done would not break that chain which linked the initial strangulation with the eventual death.”

68.However, these directions by the judge must not be considered in isolation but rather in the entire context of the judge’s summing-up.  When this is done it is apparent that the suggested offensive part identified by Mr McCoy was clearly prefaced with a direction to the jury that it was for them to determine whether the act of throwing the deceased’s body into the sea was part of the same transaction or sequence of events as the earlier strangling of the deceased.

69.We did not agree with Mr McCoy’s suggestion that the judge had usurped the function of the jury.  The lapse of time between the act which rendered the deceased unconscious and the dispositive act which lead to her death was part of the evidence and had to be addressed by the judge.  What he said was to correctly direct the jury that no coincidence in time was required by law to make the applicant guilty of murder if they were sure that the acts of strangling and the acts of throwing the deceased into the sea were parts of the same transaction or sequence of events.  We were of the view that, contrary to Mr McCoy’s submission, the judge did in fact clearly leave for the jury’s determination the issue of whether the strangling of the deceased and the throwing of her body into the sea were part of the same transaction or sequence of events.

70.In considering the way that the judge summed up the case to the jury, it has also to be borne in mind that the points put forward by Mr McCoy were not directly raised before the judge and that the judge’s proposed direction to the jury was agreed to by the defence at trial.

71.We were also of the view that commonsense would be offended if we were to rule that on the facts of the present case, the applicant should only be guilty of attempted murder or manslaughter, and not of murder.

72.We were satisfied that the conviction of murder against the applicant was safe and satisfactory.  We therefore dismissed the application for leave to appeal against conviction.

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

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

Please refer to FAMC35/2013 for the relevant appeal(s) to the Court of Final Appeal.