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Hksar v Kwok Ka Ming And Others

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date13 August 2007
Year2007
Judgement NumberCACC75/2006
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000075/2006 HKSAR v. KWOK KA MING AND OTHERS

CACC 75/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 75OF 2006

(ON APPEAL FROM HCCC NO. 103 of 2005)

____________________

BETWEEN

HKSAR Respondent
and
KWOK Ka-ming (郭嘉銘) (D1) 1st Appellant
WAN Siu-kin (溫少健) (D2) 2nd Appellant
CHAN King-yuen (陳景遠) (D3) 3rd Appellant
LO Kwai -tong (盧葵當) (D4) 4th Appellant

____________________

Before : Hon Stuart-Moore VP, Stock JA and McMahon J

Date of Hearing : 15 May 2007

Date of Judgment : 13 August 2007

______________________

J U D G M E N T

______________________

Stuart-Moore, (giving the judgment of the Court):

Background

1. The appellants (D1, D2, D3 and D4 respectively) were convicted on 17 February 2006 of murder following a trial before V Bokhary J and a jury. Each of them now seeks leave to appeal against conviction. We can indicate from the outset, for the various reasons provided in this judgment, that we have granted leave to appeal to all of them.

2. The facts were relatively straightforward and the prosecution’s case depended to a large extent on the version of events put forward by each of the appellants in their police interviews. None of the appellants gave evidence at trial.

3. By way of background to the killing, much of which was contained in the Admitted Facts, the deceased operated a wholesale fruit market business in Yaumatei as a consequence of which he was in the habit of getting up early in the morning and travelling to work by the same route. This involved leaving his home in Tsing Yi and walking to Maritime Square to the entrance of the Airport Express Station situated there. He would then routinely use the pedestrian footbridge after leaving the station at about 2.30 am, and take the escalator down to a taxi-stand in order to travel to Yaumatei.

4. On 9 October 2004, having apparently followed his usual routine, the deceased was found at about 2.30 am by a member of the public (PW1), close to the escalator near Maritime Square, in a pool of blood. At 2.38 am, police received a 999 call and an ambulanceman who attended the scene could find no pulse or breath and he noted that the deceased’s body was no longer bleeding.

5. Death was certified by a doctor shortly afterwards. On examination, the deceased was found to have a neck wound measuring 5 centimetres in length. The weapon (Exhibit P3) which had caused the injury, described in evidence as a ‘butterfly’ knife, was found nearby and on scientific examination this was found to have the deceased’s blood upon it.

6. Dr Poon Wai-ming, a forensic pathologist, conducted a post-mortem examination on the body of the deceased. The judge summed up this evidence by reminding the jury that in Dr Poon’s opinion death was due to rapid blood loss from the complete severance of the carotid artery and jugular vein on the right side of the neck. The wound was consistent with having been caused by a stabbing instrument with a sharp cutting edge such as the knife, Exhibit P3. The judge’s summary of the remainder of Dr Poon’s evidence can be shortly described. There was a zigzag-shaped wound to the deceased’s neck consisting of four limbs with three sharp turns to a depth of 9 centimetres. Dr Poon noted that the blade of Exhibit P3 measured 9.3 centimetres in length. The weapon had penetrated a muscle on the right front of the neck before cutting the right internal jugular vein and carotid artery. It had then cut through part of the cartilage of the voice-box and into the muscular tube behind the voice-box before causing oblique cuts to the soft tissue just in front of the spine. These two oblique cuts were nearly parallel and about a centimetre apart meaning that there had been more than one horizontal movement of the knife blade inside the body. This finding corresponded with the multiple limbs of the zigzag wound to be seen on the neck. Dr Poon stated that this indicated a repeated horizontal motion of the knife-blade inside the body which he described as a twisting and rocking motion of the stabbing instrument. This, he said, could have been due to the knife being actively moved in the wound by the assailant or by the body moving relative to the knife or by a combination of both.

7. Significantly, in the light of D1’s description of the incident in which he confessed to the police that he had wounded the deceased, Dr Poon asserted that the injuries were not caused by a ‘slash’ or a ‘flick’ of the knife but by a stab with moderate to severe force.

8. The prosecution alleged that D4, the “sworn mother” of D1, had responsibility for instigating the attack on the deceased and then, immediately prior to the killing, supplied D1 with information as to the deceased’s movements when he was in the vicinity of Maritime Square.

9. A few days before the killing, D4 had spoken to D1. Originally, she told him that she wanted the deceased to be taught a lesson and hit with a rod so that he would be unable to go out. After D1 had agreed to the proposal, D4’s account was that D1 telephoned her on the night of the killing to say that he had bought a knife and she had replied “okay”. Later, having learnt from D1 that the deceased was nowhere to be seen, she said she would telephone the deceased to ask if he had yet gone out. She then explained to the police how she “taught” D1 how to find the deceased near Maritime Square. She told D1 to “pull off his chain for [her] and teach him a lesson”. She telephoned the deceased and informed D1 that the deceased “would be going down there. It is almost time. He is now in the toilet”. In short, the case against D4 was that, in the knowledge that D1 was carrying a knife intending to teach the deceased a lesson, she supplied D1 with information about the deceased’s movements so that D1 could carry out the attack.

10. D1 admitted to the police that he had killed the deceased with a knife he had purchased just before the attack. He also bought gloves and a red, long-sleeved T-shirt which he was wearing at the time of the attack. His purpose had been to teach the deceased a lesson by “slicing” him a few times because the deceased had scolded and beaten his sworn mother (D4) who worked for the deceased. He said that the deceased also owed money to his sworn mother. He received information about the deceased’s movements from D4 and he had engaged D2 and D3 to act as lookouts for him.

11. D1’s case at trial was presented on the basis that this was a robbery which had gone badly wrong and that the killing was “accidental” in the sense that there had been no intention to cause really serious bodily harm at the time he inflicted the wound on the deceased. It will be necessary later to go into greater detail about this aspect of the defence case in the context of the ground of appeal raised on his behalf.

12. D2’s admissions to the police were that he had been asked by ‘Ah Ming’ (D1) to kill a person who had beaten ‘Ah Ming’s’ sworn mother. He refused to do this but agreed to help as a lookout when Ah Ming cut that person. He travelled with Ah Ming by taxi to Maritime Square and saw what appeared to be a butterfly knife when it was taken out in the course of the journey. He was told that the intended victim would be cut but not killed and he agreed to keep watch for the police while this was done. He had understood that the victim would be cut several times but had not thought he would be killed.

13. Similarly, there were admissions from D3 to being asked by D1 to act as a lookout to give a warning about the presence of the police. He referred, at various stages of his interviews, to his understanding that a man who had bullied ‘Ah Ming’s’ sworn mother was going to be “chopped” a few times. However, he had not seen the knife and, at various stages of his interviews, he gave accounts which described the anticipated attack as not necessarily involving a bladed weapon. Again, it will be necessary later, in the context of the grounds of appeal specifically raised in D3’s case, to look more closely at the descriptions he gave to the police about his understanding of the nature of the attack to be carried out by ‘Ah Ming’ to which he was allegedly a party.

Grounds of appeal

14. With this general background, it is possible now to consider the grounds of appeal.

D1’s application – ‘accidental’ infliction of the wound

15. There was no issue at trial that D1 had caused the wound which killed the deceased. The ground raised on D1’s behalf by Mr Stirling (who did not appear in the court below) was that the judge had inadequately directed the jury as to “whether the fatal blow was inflicted accidentally” when D1 “attempted to snatch a necklace from the neck of the deceased”. It was submitted that this issue had arisen from a reading of D1’s interviews (Exhibits P51 and P56) and that the judge had failed both to direct the jury that it was incumbent on the prosecution to negative this possibility and to give any direction as to the position in law if the jury accepted D1’s explanation for the injury or thought it might be true.

16. This ground of appeal was also relied upon by the other appellants having regard to the judge’s direction that if D1 was convicted of manslaughter none of the other defendants could be convicted of murder.

17. Before turning to D1’s explanations for his conduct given in two interviews, it was argued on his behalf that when his answers are carefully analysed, they amounted to a confession to a robbery which had not taken the course which D1 intended. D1, it was submitted, had been saying that he had approached the deceased, knife in hand, and had attempted to snatch the deceased’s necklace. The deceased, however, had resisted and, in the course of the skirmish which followed, the...

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