HKSAR v. Leung Fun Shing

CACC 404/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 404 OF 2013

(ON APPEAL FROM HCCC NO. 28 OF 2013)

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BETWEEN

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REASONS FOR JUDGMENT

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

1.The applicant sought leave to appeal against his conviction on 29 October 2013 after trial by Deputy High Court Judge McMahon and a jury of the murder of Ms Yang Yan on 13 April 2012 in Hong Kong. At the hearing we dismissed the application and said that we would give our reasons for so doing in due course. That, we do now.

The Trial

2.There was no dispute at trial that on the evening of 4 April 2012 that, having availed himself of the sexual services of Ms Yang Yan, a prostitute, at premises at Room A2, Nga Tsin Wai Road, the applicant strangled Ms Yang Yan leaving her unconscious before leaving the premises and crossing the border into the Mainland about an hour later.  Ms Yang Yan died on 13 April 2012 as a result of the injuries she sustained when strangled by the applicant.

The prosecution case

3.CCTV installed in the vicinity of Room A2, 2/F, No. 94 Nga Tsin Wai Road, Kowloon City captured the movements of the applicant at the staircase and corridors leading to the entrance to Room A2.  At about 20:43 hrs on 4 April 2012 Ms Yang Yan opened the door of Room A2 and admitted the applicant.  About 44 minutes later, the applicant came out of Room A2 alone and went to a 7-11 shop across Nga Tsim Wai Road, where he bought a Pocari Sweat drink.  Then, he took a taxi to Kowloon Tong Railway Station, where he took a train to Lo Wu, crossing the border into the Mainland at 22:33 hrs.

4.Madam Xu, a cleaner at the premises at 2/F, No. 94 Nga Tsin Wai Road, Kowloon City, raised the alarm after she had observed a male customer leaving Ms Yang Yan’s room, although the door remained closed and the ‘Wait’ sign remained displayed.  On gaining entry to the locked premises she and the occupant of an adjoining room were confronted by the sight of a naked Ms Yang Yan lying unconscious on the floor, but still making bodily movements.  Madam Xu removed a cloth from Ms Yang Yan’s mouth.  An ambulanceman, who attended the scene soon afterwards, found Ms Yang Yan to be breathing, but unconscious.  She had red marks on her neck.  On admission to the Accident & Emergency Department of Queen Elizabeth Hospital Ms Yang Yan’s condition was described as being ‘critical’.  Having remained in a coma thereafter, eventually Ms Yang Yan died on 13 April 2013.

5.Having conducted an autopsy on Ms Yang Yan, Dr Tsang Chak Chi expressed the opinion that there were three causes of her death: firstly, hypoxic brain encephalopathy, namely mechanical reduction in the amount of oxygen transferred to the brain; secondly, bronchopneumonia; and thirdly, mechanical asphyxia, commonly caused by suffocation, gagging or pressure on the neck.  The first two were direct causes of death, whereas the third was an antecedent cause. 

6.Having been arrested on 19 April 2012 and cautioned for the murder of Ms Yang Yan, the applicant denied having killed anyone.  However, in subsequent multiple video recorded interviews the applicant admitted that on the evening of 4 April 2012 he had engaged in sexual activity with Ms Yang Yan as a prostitute at the premises at Room A2, 2/F, No. 94 Nga Tsin Wai Road, Kowloon City.  However, when he asked for further sexual activity not only did she demand more money but she insulted him by saying “Do not go whoring if you have no money.”  He said that he became angry and then very angry.  He lost his mind.  He grabbed her neck and pressed it, placing a cloth in her mouth.  He pressed her neck until she slumped to the floor.  In fear that she might be badly injured or even die he left the premises and went to Shenzhen.  The applicant said that he had not intended to kill Ms Yang Yan or cause her grievous bodily harm.  All he wished to do was to stop her shouting.

7.The prosecution case was that the applicant intended to kill Ms Yang Yan or to cause her really serious bodily harm.  The jury was invited to reach that conclusion by drawing inferences from all the circumstances of the killing, together with admissions made under caution in out-of-court statements in video records of interview.

The defence case

8.The applicant did not avail himself of his right to testify or call other evidence in the defence case at trial.  It was accepted on his behalf that, having regard to the undisputed fact that he had strangled Ms Yang Yan, he was culpable of manslaughter by an unlawful and dangerous act.  On his behalf Mr Paul Loughran invited the jury to accept his repeated assertions in his out-of-court statements that he did not intend to kill or cause really serious injury to Ms Yang Yan.  It was contended that regard to all the evidence of the circumstances of the killing supported those assertions.  Although no reliance was placed on the partial defence of provocation, consideration of which arose from the applicant’s out-of-court statements, Mr Loughran indicated to the jury that was a matter that, on the direction of the judge, arose for their consideration.

Summing up

9.In his summing up, having reminded the jury that very little of the prosecution case was disputed by the defence, the judge identified the issues arising in the case :[1]

“What is very much in dispute between the prosecution and the defence, however, is what was in the defendant’s mind when he strangled and gagged the deceased, thereby causing the injuries which resulted in her death.

In this case, firstly and fundamentally, you will have to decide whether the prosecution has proven that the intent of the defendant was to kill or cause really serious injury to the deceased. If you are not sure that the prosecution has proven that the defendant intended to kill or to cause really serious injury to the deceased, then you will obviously find him not guilty of murder. You will then have to consider whether the defendant committed the offence of manslaughter.

Even if you are sure the prosecution have proven the defendant intended to kill or cause really serious injury to the deceased and that they have proven the offence of murder, you will have to go on and consider the defence of provocation, that is whether the defendant may have been provoked into killing the deceased.  In that regard you will hear, members of the jury, that there is a partial defence to an offence of murder which, when it applies, reduces what would otherwise be the offence of murder to the offence of manslaughter.  In other words, the defence of provocation, if it applies, reduces what would otherwise be murder to the lesser offence of manslaughter.”

Grounds of appeal against conviction

10.On behalf of the applicant, Mr Robert Andrews submitted that, in respect of the alternative verdict of manslaughter by reason of provocation, “the defendant’s case was inadequately and/or insufficiently explained to the Jury”.  Next, complaint was made, in effect a complaint of incompetence of counsel, that Mr Paul Loughran erred in failing to advise the applicant to give evidence to support the partial defence of manslaughter by reason of provocation.  Then, it was contended that the judge erred in directing the jury that strangulation was the cause of death.  Whilst mechanical asphyxia was a cause of death it was not the cause of death.  Rather, hypoxic brain encephalopathy and bronchial pneumonia were also causes of death.

A CONSIDERATION OF THE SUBMISSIONS

Provocation

11.Having directed the jury that it was for the prosecution to prove that the applicant was not provoked into killing the deceased, the judge directed the jury in respect of the issue of provocation[2] in accordance with the Specimen Direction set out in the ‘Specimen Directions in Jury Trials’ issued by the Judicial Institute.[3]  In doing so, the judge reminded the jury of the evidence relevant to the specific directions.[4]

“Provocation is some act or series of acts done and/or words spoken which caused in the defendant a sudden and temporary loss of self control and which would cause a reasonable person to lose his or her self control and to behave as the defendant did.

Let us just go back to the first line where provocation is defined as being “some act or series of acts done and/or words spoken.” The only evidence you have heard in this trial, which could amount to provocation is the defendant saying he had an argument with the deceased and that in the course of that argument, she used words to the effect, “If you have not got sufficient money, you should not go to prostitutes.” In his video interviews he said those words caused him to lose his self control.

Let us go on. How, then, do you determine whether the defendant was or may have been provoked to do as he did? There are two questions that you have to consider before you are entitled to conclude that the defendant was or may have been provoked on this occasion?

Firstly, you must ask yourselves whether the defendant was provoked in this 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 by another person, rather than just by his own bad temper. If you are sure that the defendant was not provoked in that way, then the defence of provocation does not arise and the defendant is guilty of murder, but if you conclude that the defendant was or might have been provoked in the way which I have explained, you must go on to ask yourself this further question: is it possible that the conduct of the deceased was such as to cause a reasonable person of the defendant’s age and sex to do as he did?

A reasonable person, so far as this case is concerned, is simply a person who has the powers of self control to be expected of an ordinary 27 year old man. The law expects people to exercise control over their emotions. If, for example, a person has an unusually 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 violent, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizen’s will exercise in society as it is today. Therefore, when considering this question, you must take into account everything which was done and/or said according to the effect which, in your opinion, it would have on such an ordinary person.

If you are sure what was done or said would not have caused an ordinary 27 year old man to do as the defendant did, the prosecution will have disproved provocation. Then, providing 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 or said might or would have caused an ordinary man to do as the defendant did, your verdict will be not guilty of murder, but guilty of manslaughter by reason of provocation.”

12.Of the evidence of acts done and/or words said relevant to the issue of a loss of self control, the judge reminded the jury :[5]

“ Let us go to that first question, that is whether the deceased did or said something which may have caused the defendant to lose his self control. What is in the evidence concerning what the deceased did and said is simply those words that the defendant asserts in his video recorded interview that she used, that she said, “You should not come to prostitutes if you do not have sufficient money,” words to that effect. But consider those words in the context of an argument, where emotions are raised, because you will remember that the defendant in his video recorded interviews said that these words were used when they were already having a “row”, I think he described it as, over money. So they are the words and the context in which those words were used which you must consider when you take into account what I have directed you upon.”

13.Although the applicant’s out-of-court statements were ‘mixed’ statements, containing both inculpatory and exculpatory parts, the judge did not give the jury the standard direction [6], in particular that  that they may feel that less weight is to be attached to the exculpatory parts of a mixed statement.  Further, in circumstances where “the defence is relying by way of answer upon some extra-judicial statement proved by the prosecution which the accused has not supported in evidence” the judge may comment to that effect.[7]  To that extent, the summing up was unduly favourable to the applicant.  Similarly, although the applicant’s initial lies in his out-of-court statements as to any involvement in the death of the deceased were not probative of the count of murder, nevertheless they were relevant to the applicant’s credibility.  The judge’s direction to the jury that they were to “ignore those lies” [8], without a reference to their relevance to credibility, was also unduly generous to the applicant.

14.Of the evidence that the applicant had lost his self-control, the judge reminded the jury that the evidence was to be found in his out-of-court records of interview, “primarily set out in the fifth video recorded interview” : [9]

“ He says there, between items 185 and 191, words to the effect, “I lost my mind” and “I did not know myself”.”

15.Later, the judge reminded the jury more fully of the assertions made by the applicant in the out-of-court statements that were relevant to those issues.  Having described the applicant’s admissions in the second video recorded interview of sexual activity with Ms Yang Yan, the judge said : [10]

“ He said that after this he wanted more sex, but the deceased said, “Well, that will be extra money,” or words to that effect.  He said they then had a row, he called it a row, and that is at item about 330 in the second video recorded interview.  He said he thought it was unreasonable of the deceased to ask for more money as the time they had had so far, I think he meant, was too short. He had not had enough time he thought so he did not think it was reasonable for her to charge extra.

This, at 334, you may think is relevant, during this period of time when they were having this argument, the defendant says that the deceased never said how much extra she was going to charge.  You look at those items from 334 to 362 in the second video recorded interview and you will see what he says in that regard set out there.

In any event, at some stage during this argument the deceased, he says, said, “Do not go whoring if you have no money.”  He became angry and he pinched her neck using both hands.  She shouted, and you will find this set out at item 389 through to 397, she shouted out and so then he gagged her with clothes that he found on the floor to stop her shouting and he stuffed those clothes, he said, into her mouth.  He says he pinched her neck for a total of three minutes, and I’ve told you about estimates of time in that regard by the defendant.  He said she became nearly unconscious.  She had no response.  And at item 452 he described her as “Passing out and sliding the floor.”  He said at item 534 he thought she was dying and he was scared, so he got dressed and left…”

16.The judge suggested to the jury that in the fifth video recorded interview the applicant had dealt in more detail with matters that had occurred on 4 April 2012 : [11]

“He said in that interview that he never used violence against prostitutes before, but at 173 or thereabouts, item 173, he said he started getting angry when the deceased said if he wanted more time he had to pay more and then he said he was insulted when she said “Do not have sex with prostitutes if you do not have money,” and he became very angry.  He agreed again that she did not say how much extra money.

At 185 through to 210, item 185 through to 210, the defendant says at various times as a result of the insult he had received from the deceased and becoming very angry he lost his mind, he did not know himself, he did not know it would be such a big case, he did not know his actions would be fatal, he did not intend to kill her, he just wanted to stop her speaking, he did not want these events to happen, he did not intend to kill her.”

17.Finally, the judge reminded the jury that in the sixth video recorded interview, in which the applicant had re-enacted the events, the applicant had said of his request for further sexual intercourse : [12]

“..she had said an extra charge was required and she had used those insulting words, “If you do not have money, do not go whoring.”  He repeated again that he got angry and he then grabbed her neck with both hands.  He said she shouted but, he said, not that loudly, but because she had shouted, he then gagged her.  He said this time he kept on grabbing her, and by that you might think he meant grabbing her by the neck, and he said he did that for about two minutes.”

18.Having directed the jury as to the law in respect of the partial defence of provocation and having reminded them of the relevant evidence, the judge summarised the position taken by the respective parties in their closing speeches.  The judge reminded the jury of the prosecution’s submission that the applicant’s assertion in his out-of-court statements that the deceased’s reprimand, that he should not go to prostitutes if he did not have sufficient money, “seemed trivial and not the sort of insult which would make someone not just get upset and make them angry, but make them lose control.” [13]  The prosecution said that the observation was made all the more powerful by the fact that the applicant did not even know how much extra money might be demanded.  Furthermore, the judge reminded the jury that the prosecution submitted that the applicant’s conduct after he had strangled the deceased, namely locking the door to her premises and buying a soft drink in a nearby shop, did not suggest a loss of control.  However, in that context the judge went on to direct the jury : [14]

“ …bear in mind, the loss of control need only be temporary. It need only be momentary and last for only a very short time. It may not extend to actions taken even shortly after the event. Even a momentary loss of self control, a very short period of time during which the loss of self control takes place is sufficient.”

19.Of the position taken on behalf of the applicant in respect of the partial defence of provocation, the judge said : [15]

“ Mr Loughran has told you quite expressly he does not rely upon the defence of provocation and he made no submissions to you in that regard. Nevertheless, as Mr Loughran said, it is something you must consider, and that is correct, members of the jury. Even though Mr Loughran does not rely upon the defence of provocation, you must still take it into account.”

20.Notwithstanding the position taken in respect of the issue of provocation, reliance was placed on behalf of the applicant on the evidence that he had “lost his mind” in the context of a consideration of his intention in strangling Ms Yang Yan.  Of that, the judge said : [16]

“ Mr Loughran, in his speech, pointed to the defendant’s assertions that he was angry and that he had lost his mind and said that that pointed to the defendant having impaired judgment and an impaired understanding of the degree, timing and consequences of the force the defendant had used. In other words, that the defendant’s words, if you accept they might be true, would suggest that he had no sufficient judgment or understanding as to the amount of force he was using and how long that force had been applied by him and what the consequences of his application of force might be. What Mr Loughran says in that regard is something you should take into account also when you consider the question of the defendant’s intentions at the time he strangled the deceased.”

21.There is no dispute that, notwithstanding the fact that no reliance was placed on the partial defence of provocation, the judge had a duty to leave the issue to the jury in his summing up.  He did so, providing the jury with all the appropriate directions in respect of the law together with an ample reminder of the relevant evidence.  We are satisfied that there is no merit whatsoever in the criticism that those directions were inadequate or insufficient.

Counsel’s advice to the applicant

22.Pursuant to directions given by Stock VP on 28 February 2014, the applicant filed an affirmation on 14 March 2014 detailing his complaints in respect of the conduct of his case at trial by his counsel Mr Paul Loughran.  In response to a request by Stock VP in a letter dated 17 March 2014 to Mr Paul Loughran, that he provide an affirmation in reply to that of the applicant, Ms Betty Chan Ka Wai, counsel’s instructing solicitors at trial, filed an affidavit on 1 April 2014 describing the various steps taken in conducting the defence of the applicant at trial.  Ms Chan explained in her affidavit that she did so at counsel’s request in consequence of his ill-health.  In a letter to the court dated 12 May 2014 Mr Paul Loughran informed the court, “I did not argue any defence of provocation as, its weaknesses aside, it was inconsistent and harmful to the defence of no intent to do serious bodily harm.”  Although counsel went on to indicate that he hoped to make an affirmation to that effect in due course, the court was informed in a letter dated 25 July 2014 from counsel’s secretary that his illness prevented him from doing so.

23.There being no objection from the parties, we received that material at the hearing pursuant to section 83V(1)(c) of the Criminal Procedure Ordinance, Cap. 221.

The applicant’s affirmation

24.In his affirmation, the applicant asserted that at the time that he assaulted Ms Yang Yan he “lacked the requisite intention to be guilty of Murder”.  He went on to say “It was also part of my defence that I had been provoked into doing what I did to the deceased by her behaviour towards me immediately before the assault occurred.” Of the issue of whether or not he should testify at his trial, the applicant said :

“ After the final prosecution witness had finished giving evidence, there was an adjournment during which counsel came to see me and we had a conference. We discussed together whether or not I should give evidence in my own defence. Counsel emphasised that the decision whether or not to testify was mine alone, and I was left overnight to think about it. The following day, I told counsel that I would not give evidence.

Beyond telling me that whether or not I gave evidence would make no difference to the case, so far as concerns progress of the trial, and the evidence called by the prosecution; Counsel never advised me as to the advantages and disadvantages of testifying, nor was I advised what factors I should take into account in reaching a decision.”

25.There is no issue that Messrs Betty Chan & Co and counsel, Mr Paul Loughran, were assigned by the Legal Aid Department to represent the applicant at his trial at a late stage.  Their assignment was made on 15 October 2013, for a trial which was due to commence on 17 October 2013.  It appears that this came about as a consequence of the applicant asking at a late stage to be assigned new solicitors and counsel to replace those assigned initially.  At the request of Mr Paul Loughran of the judge, that he be given time to prepare, the trial was adjourned and did not commence until 21 October 2013.

Ms Betty Chan’s affidavit

26.In her affidavit Ms Betty Chan said that on 17 October 2013 she attended a conference between counsel and the applicant at which the instructions given to the previous representatives of the applicant were read over and interpreted to the applicant and his confirmation obtained that they were his instructions.  In addition, they received fresh instructions.  Her handwritten notes of that meeting were exhibited to her affirmation.  On 18 October 2013, the applicant signed a document in English bearing that date entitled ‘Statement of Leung Fun Shing’, which Ms Betty Chan interpreted to the applicant.  Of the applicant’s request for further sexual acts and Ms Yang Yan’s demand that there be an additional payment, the statement asserted :

“ 10. …I asked her once again. If she still refused, I would pay $350 and left.

11. When she heard what I said, she scolded me. “If you have no money, don’t come here for a lady.”

12. I felt very angry as she was insulting me.  Because of my anger (just anger, I was still in control of myself), I grabbed her neck in both hands (for about one minute).  I did not intend to cause a serious bodily harm.  As I just intended to frighten her, I did not use great force.  I wanted to frighten her as revenge for insulting me.  I heard she added a sound “aah”.  She was still strong.  Fearing that she would scold me again or bite me I picked up a piece of clothing from the ground and stuck it inside her mouth.  When I put clothing into her mouth, I did not intend to cause serious harm.  She suddenly pulled me once with her hand, then she collapsed and lied on the ground.” [Italics added.]

27.No issue has been taken on behalf of the applicant in respect of the instructions contained in that statement.  However, in his oral submissions Mr Andrews drew the attention of the court to a passage in the handwritten notes of Ms Betty Chan from which the statement of the applicant had been drafted.  Page 4 of those notes contain the following record :

“ Agree to png to murder
g. of man.
Basis of p.g. man
unlawful act
offered. man on
unlawful act
+
Provocation. Yes.
offered. 2bases.
both were rejected.”

28.Mr Andrews submitted that those notes evidenced instructions that the applicant advance the defence of provocation to the count of murder.  He submitted the counsel had a duty to advance that defence unless and until he had instructions that the applicant abandoned the defence.

29.In the course of oral submissions the parties provided the Court with two letters written by Mr John Haynes, counsel initially instructed to represent the applicant, to the Department of Justice indicating that in response to the indictment for murder the applicant was prepared to plead guilty to the offence of manslaughter on the basis that he lacked the requisite intent for murder.  Those letters were dated 21 September and 9 October 2013.  Neither letter made any reference to the offer being based on the partial defence of provocation.  Mr Andrews declined to provide the court with the initial instructions given by the applicant which had been read over to him by Ms Betty Chan.

30.Of the advice given to the applicant at the close of the prosecution case, Ms Betty Chan said :

“ 10. ………As soon as the court proceedings has been adjourned for the next day, Mr Loughran and I went to the High Court to cell to meet the appellant for the purpose of advising him of his right to elect to give evidence.

11.  Mr Loughran has informed me that by his recollection of the end of the prosecution case the Appellant was made aware His view and/or understood that causation was not a real issue.  Also provocation did not arise on the Appellant’s instructions (no loss of self-control) and otherwise was extremely weak.  Mr Loughran says he explained to the appellant that the giving of evidence could have helped his case (on intent) that could harm it depending on the impression he gave when answering questions in the witness box.  It was always the client’s decision.  After explanation Mr Loughran asked the Appellant if he had any questions or queries (his invariable practice) and the Appellant said she had none…..”

31.Ms Betty Chan said that the applicant had signed a written confirmation dated 24 October 2013 of the fact that he had received advice as to his right to give evidence and of his decision not to give evidence and the reasons for that decision.  The applicant said :

“ The main reason is that I wish to rely upon my VRI are as my explanation. I have no confidence that giving evidence will improve my position.”

32.It is clear that whatever ambiguity might have existed on 17 October 2013 as to the applicant’s instructions in respect of the issue of provocation such ambiguity was resolved by the typed statement of the applicant, which he signed after it had been interpreted to him on 18 October 2013.  His instructions in that statement were absolutely clear : although he was angered by what Ms Yang Yan had said he was “still in control of myself”; he “intended to frighten her”; and “I wanted to frighten her as revenge for insulting me”.  In fact, those instructions reflect the applicant’s instructions given in the conference of 17 October 2013 as reflected in Ms Betty Chan’s handwritten notes.

33.We are satisfied that his instructions were unambiguous : the applicant had not lost control of himself rather he was able to form the specific intent to frighten Ms Yang Yan as revenge for what she had said.  It appears that the reference to provocation in the notes was to what had been “offered” to the Department of Justice as the basis of a plea of manslaughter.  In that respect, the applicant was incorrect, as is evidenced by the correspondence between Mr John Haynes and the Department of Justice.  The offers to plead guilty to manslaughter were made on the basis of an unlawful and dangerous act only.  Moreover, as the handwritten notes record, the applicant instructed counsel, Mr Paul Loughran, that he was prepared to plead guilty to manslaughter only on the basis of an “unlawful act”.

34.It is perfectly apparent from the instructions given to Ms Betty Chan and Mr Paul Loughran, in particular the specific instructions that the applicant was “still in control of myself”, that counsel for the applicant was not in a position to advance a positive case in respect of provocation.  Very obviously, if the applicant had given evidence in accordance with those instructions the partial defence of provocation would have failed at the very first hurdle.  The applicant had not lost self-control.

35.In those circumstances, no counsel would have advised the applicant to give evidence to support the partial defence of provocation.  His evidence would have had the opposite effect.  However, there remained the issue of the applicant’s testimony to support the defence of lack of the intent necessary for murder.  If the applicant had given evidence he would have exposed himself to cross-examination as to his conduct after he had strangled Ms Yang Yan.  His conduct immediately after that event was clearly highly relevant to the issue of his intention at the time of that event.  The fact that he had the presence of mind to lock the door to Ms Yang Yan’s premises and the sang froid to cross the street and purchase a soft drink before leaving the scene was the subject of comment in the prosecution closing speech and undoubtedly would have been the subject of cross-examination.

36.On the other hand, the extensive out-of-court statements of the applicant relevant to both the issues of provocation and intention were before the jury and enabled counsel for the applicant to advance a case of the applicant’s lack of the requisite intention for murder.  The determination of counsel for the applicant not to place reliance on the partial defence of provocation was a forensic decision within the ambit of the responsibility and powers of counsel. [17]  It had the merit of being realistic, given the rigours of the question posed in the second limb of the direction given in respect of provocation.

37.In the result, we are satisfied that there is no merit whatsoever in the criticism of the conduct of the defence by counsel for the applicant at trial.  As was to be expected of Mr Loughran, faced with a powerful prosecution case, he mounted such defence as could be advanced properly on behalf of the applicant.

The judge’s directions as to the cause of death

38.The nub of the complaint made of the judge’s directions to the jury as to the cause of the death of Ms Yang Yan is that of his emphasis on strangulation as the cause of death.[18]  That was unfair to the applicant, whose defence was that the relative lack of force applied in his strangling of Ms Yang Yan evidenced the fact that he lacked the requisite intent for murder.  The fact that she died nine days after strangulation was relevant.

39.Of the issue of the degree of force used by the applicant in strangling Ms Yang Yan the judge saidof the defence case : [19]

“ Mr Loughran suggests to you that in any event, not much force was used by the defendant. The deceased’s external injuries to her neck were relatively mild. You remember the evidence was that there was redness on her neck. There were no internal injuries to her neck. Mr Loughran suggests that the complete lack of internal injuries and the relatively minor external injuries to the deceased’s neck suggests that the defendant did not apply much force when he squeezed the neck of the deceased.”

40.The judge reminded the jury at some length of the oral evidence and autopsy report of the pathologist, Dr Tsang.[20]  Of the injury to the brain of Ms Yang Yan, namely cerebral oedema, the judge said of Dr Tsang’s evidence : [21]

“ she says those findings are compatible with the clinical findings and diagnosis of hypoxic brain damage and those findings were compatible with being the result of asphyxia, a lack of oxygen reaching the brain. She said the causes of mechanical asphyxia, or some of the common causes for mechanical asphyxia, include suffocation, lodging of a foreign object in the air passage, that is gagging, or pressure on the neck. And the doctor said in her oral evidence it was mechanical asphyxia, that includes strangulation leading to hypoxic brain damage and also the gagging leads to the same result.”

41.Earlier, the judge had referred specifically to the cause of death described in the autopsy report as being : [22]

“ ..hypoxic brain encephalopathy, which simply means not enough by going into the brain, causing changes to the brain, and that was caused by a mechanical reduction in the amount of oxygen being able to be transferred to the brain.”

42.Of the neck of Ms Yang Yan, the judge said Dr Tsang’s evidence : [23]

“ the internal structures of the neck were unremarkable. There was no injury noticed, no bruising noticed and Mr Loughran makes a point of that in terms of you deciding how much force had been applied by the defendant. There was no damage to the inside of the neck and there was only redness, as we have heard, to the outside of the neck.”

43.The judge went on to note that the same point had been developed in cross-examination of Dr Tsang : [24]

“ she found no bruising on the neck of the deceased. She agreed that serious injuries would not heal within seven days. The point of that is that if she found no bruising on the neck of the deceased when she examined the body of the deceased some nine days after the strangulation, then the injuries would not have been serious. That, I think, is what she meant by that evidence, but it is a matter for you to decide.

She agreed that there was no breaking of the little bones and the cartilage inside the neck of the deceased and she drew a diagram of those bones and cartilage and that is before you as Exhibit D1.  I asked her to draw it as closely to scale as possible and to also include as closely as she could, or as correctly as she could, the thickness of those bones.  She described these bones as being at the front of the neck.  She said severe force can result in the fracture of these bones.  Moderate force, she said, could result in the fracture or disruption of the bones.  And she said, though, because the bones are under the muscle and the blood vessel layer of the neck, they are protected to some extent, you might think, members of the jury.  But she did agree that the more force, the deeper the bruising may have been caused and I think it is a matter of commonsense, members of the jury, the greater the force, the more likely the bones would have been broken, or at least disrupted.  She did not find them to be broken or disrupted.”

44.However, the judge went on to note that whilst Dr Tsang testified that it was very difficult to estimate the degree of force that had been used to strangle Ms Yang Yan she did say that it was not necessary “to put pressure all the way through the neck to partially restrict the circulation of blood.” [25]  Furthermore, he reminded the jury that it was her evidence that both the gag placed in the mouth of Ms Yang Yan and pressure on her neck could have reduced the supply of oxygenated blood to the brain : [26]

“ Firstly, there may not have been enough oxygen coming through into the deceased’s lungs as a result of the obstruction of the windpipe and, secondly, there might not have been enough blood, to carry that oxygen, reaching the brain.”

45.In directing the jury to ignore the presence of bronchopneumonia the judge explained that : [27]

“ it was (an) infection that the deceased apparently got while she was in hospital and that was found by the doctor to be any infection which she had before death.”

46.In his oral submissions, Mr Andrews complained that although the judge had referred to the fact that a witness statement of Dr Chan King On, Canon had been put into evidence pursuant to section 65B of the criminal Procedure Ordinance [28], he had not reminded the jury of any of the contents of his statement.  From the records of the Queen Elizabeth Hospital, Dr Chan described the admission of an unconscious Ms Yang Yan on 4 April 2012 and her subsequent treatment.  Mr Andrews complained that the judge ought to have drawn the attention of the jury to the fact that Dr Chan said of Ms Yang Yan that a “CT scan of the brain showed mild cerebral (o)edema, but there was no bleeding”. [29]  That level of injury as relevant to the issue of the degree of force applied by the applicant in strangling Ms Yang Yan and therefore to his intention.  Mr Andrews acknowledged that a subsequent EEG “confirmed severe cerebral dysfunction” and that a CT scan of the brain showed “increase in severity of the cerebral oedema with obliteration of the sulei and narrowing of the ventricles..”

47.We are satisfied that the judge’s directions to the jury as to the evidence in respect of the cause of the death of Ms Yang Yan was entirely appropriate and accurate.  Clearly, mechanical asphyxia was the antecedent cause of death.  It was described as such on the autopsy report.  The direct causes were hypoxic brain encephalopathy and bronchopneumonia.  The fact that the oedaema to the brain detected initially was “mild” was nothing to the point.  Subsequently, there was an “increase in severity” of the oedema.  Mr Andrews did not dispute that there was a direct causal link between the applicant’s strangulation and gagging of Ms Yang Yan and the injury to her brain, which deteriorated and resulted in her death.  The judge’s reminder to the jury of the evidence relevant to the degree of force applied in strangulation of Ms Yang Yan gave appropriate focus to the defence case in respect of a lack of the requisite intention for murder in the applicant at the time of the strangulation.

Conclusion

48.In the result, we were satisfied that there were no merits in the grounds of appeal against conviction.  Accordingly, we dismissed the application for leave to appeal against conviction.

Mr Simon Tam, SC, SADPP of the Department of Justice, for the respondent

Mr Robert Andrews, instructed by Cheung, Chan & Chung, assigned by Director of Legal Aid, for the applicant

[1] Appeal Bundle, page 2 F-Q.

[2] Appeal Bundle, pages 18 A - 22 S.

[3] Specimen Direction 51.

[4] Appeal Bundle, pages 18 K - 19 U.

[5] Appeal Bundle, page 20 J - Q.

[6] Specimen Direction 40: “The defendant’s statement to the police came contains both incriminating parts and [excuses] [explanation].  You must consider the whole of statements in deciding where the truth lies.  You may feel that the incriminating parts are likely to be true - why else would he have made them?  You may feel that there is less weight to be attached to his [excuses] [explanation], for they were not made on oath, have not been repeated on oath, and have not been tested by cross examination.”

[7] Li Defan v HKSAR (the Court of Final Appeal) [2002] 1HKLRD 527; Hoffman NPJ page 539 A-H, paragraph 29.

[8] Appeal Bundle, page 27 S.

[9] Appeal Bundle, page 21 S-U.

[10] Appeal Bundle, page 30 D-S.

[11] Appeal Bundle, page 31 H-Q.

[12] Appeal Bundle, page 32 I-M.

[13] Appeal Bundle, page 21 B-F.

[14] Appeal Bundle, page 21 K-N.

[15] Appeal Bundle, page 21 O-R.

[16] Appeal Bundle, pages 31 T - 32 G.

[17] Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126; Sir Thomas Eichelbaum NPJ pages 142 I - 145 A, paragraphs 46-9.

[18] Appeal Bundle, page 37 P-Q “It has never been disputed that the defendant’s strangulation of the deceased was the cause of her death.”

[19] Appeal Bundle, page 14 L-P.

[20] Appeal Bundle, pages 34 A - 39 C.

[21] Appeal Bundle, page 37 H-M.

[22] Appeal Bundle, page 36 O-Q.

[23] Appeal Bundle, page 36 G-J.

[24] Appeal Bundle, pages 37 R - 38 K.

[25] Appeal Bundle, page 38 P.

[26] Appeal Bundle, pages 38 U - 309 C.

[27] Appeal Bundle, page 37 C-E.

[28] Appeal Bundle, page 4 Q-U.

[29] Appeal Bundle, page 42.