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Hksar v Lui Tsi Fai

Judgment Cited authorities 7 Cited in 2 Precedent Map Related
Vincent
Judgment Date01 April 2003
Year2003
Citation[2003] 2 HKLRD 927
Judgement NumberCACC340/2001
Subject MatterCriminal Appeal
CourtCourt of Appeal (Hong Kong)
CACC000340/2001 HKSAR v. LUI TSI FAI

CACC 340/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 340 OF 2001

(ON APPEAL FROM HCCC 196 OF 2000)

______________

BETWEEN
HKSAR Respondent
AND
LUI TSI FAI Appellant

______________

Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J

Dates of Hearing: 23 July 2002 and 6 March 2003

Date of Judgment: 1 April 2003

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J U D G M E N T

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

Introduction

1. This is an appeal against conviction where the only ground of any substance involves a point of law alone.

2. On 24 August 2001, the Appellant, aged 32, was convicted of murder following a trial before Suffiad J and a jury.

3. The facts were straightforward. The deceased was a drug trafficker who, on 11 March 2000, at her place of residence in Tsuen Wan, received multiple injuries to her head, neck and other parts of the body. Death resulted from the chop wounds to the neck which completely severed the windpipe, the oesophagus, the jugular vein and the carotid artery.

4. Five days later, on 16 March 2000, the Appellant was arrested. Initially, he denied being the culprit, admitting only that he had visited the deceased's flat late on 10 March 2000 and again in the early hours of 11 March 2000. However, he later admitted responsibility for the killing, saying that he had been in an argument with the deceased during which he had lost his temper and stabbed her with a can opener. He said that he then used a chopper to inflict further wounds on the deceased. After that, he stole her money and her store of drugs. His full confession was covered by four video-recorded interviews.

5. The motive put forward by the prosecution for the killing was that the deceased had been telling others, including her boss, 'Kam Mo', for whom she was selling drugs, that the Appellant owed her money for heroin which she had supplied to him.

The principal issues

6. In a summing up which expressed the issues clearly, the judge helpfully summarised the prosecution's case at the outset, dealing with the general nature of their allegation before saying:

"So the prosecution says this is a clear case of murder. The defendant had attacked the deceased in anger, first with the can opener, and later, in order to silence her from screaming and yelling, by chopping her with a chopper and in so doing he could only have intended to at the very least cause her serious bodily harm." (Appeal bundle p. 3)

7. The judge then summarized the case for the defence. The Appellant had given evidence and had been represented by highly experienced and able counsel who did not demur at the way it was expressed by the judge, which was in these terms:

"On the other hand, the defendant has admitted to you when he was in the witness box that he did inflict the fatal chop wounds on the neck of the deceased in the early hours of 11 March 2000, but in his own defence he says two things. First, that he did not intend to kill the deceased or to cause her serious bodily harm. Secondly, he says that in any event, he was provoked by the deceased into doing as he did as she had accused him of owing her a debt and stealing drugs from her; scolded and insulted him and his family, saying that he deserved to have his wife seduce other men; as well as threatened to tell Kam Mo of the defendant owing her money for drugs and stealing drugs from her.

He says he then picked up an object to strike her with it, and it was only after he had struck her that he realized it was a tin can opener when he saw that she was bleeding. Following that, a struggle then ensued between them and the deceased got hold of a chopper to attack him with it. He managed to wrest that chopper from the deceased, and because he was so overcome with rage, he used the chopper to chop the deceased, inflicting the fatal wounds to her. In short, the defendant says that because he was so provoked by the deceased's words and conduct he lost his self-control and struck her. Accordingly, he says he is guilty only of manslaughter and not of murder." (Appeal bundle pp. 3-4)

8. The principal issues to be decided by the jury were, as the judge had very properly indicated, whether the evidence had established murder or, alternatively, manslaughter either by reason of provocation or because of lack of intent.

Directions in law

9. The judge went on to deal with the law relating to murder, pointing out that there had been no dispute that the Appellant had delivered the fatal blows. As to the element of unlawfulness, the judge directed the jury that:

"As for the second ingredient, a killing is unlawful if it is done without legal justification. Legal justification for a killing will, for example, be when it is done in self defence. There is no question but that the killing of (the deceased) here in this case is unlawful and you should therefore not be unduly troubled by the second ingredient." (Appeal bundle p. 10)

10. Later on, the judge outlined in detail the Appellant's evidence to the jury. His own account provided the clearest indication, falling short of a formal admission, that he had no legal justification for inflicting the hideous injuries suffered by the deceased.

11. Near the end of the summing up, the judge summarised the defence case on provocation and lack of intent, having earlier dealt with these issues in meticulous detail, by saying:

"At the time, he was blinded with anger, then he became stunned and confused. ... He did not intend to kill Mo Por when he attacked her and he was so angry at the time, he did not think about causing her serious bodily harm." (Appeal bundle p. 41)

12. It is right to add that there were significant inconsistencies between the account given by the Appellant to the police in his video-recorded interviews and the version he gave to the jury. These were important as his account to the police appeared to amount to a confession to murder as opposed to his defence in court which limited his responsibility to manslaughter. These inconsistencies were fully and fairly covered in the judge's summing up. At no stage did the Appellant or his counsel suggest that there should be a complete acquittal.

The application

13. Against this background, Mr Michael Poll, on the Appellant's behalf, submitted that the jury's verdict was unsafe and unsatisfactory on two grounds.

(1) Should a jury be given an option to acquit when there is no dispute on the evidence that a defendant is at least guilty of unlawful killing?

14. Firstly, Mr Poll contended that the judge had erred in directing the jury that it was only open to them to convict of murder or of manslaughter. He submitted that as the Appellant had entered a plea of 'Not Guilty', a third option should have been left open to the jury, entitling them to acquit altogether.

15. The passage about which complaint is specifically made occurred at the end of the summing up where the judge said:

"Before I finish, let me tell you something about the verdict. This case is unlike the ordinary case because of the course that it has taken. The only possible verdicts that you can return in this case is either a verdict of guilty of murder or a verdict of guilty of manslaughter. There is no other verdict that you can return in this case." (Appeal bundle p. 46)

16. Mr Poll described this as amounting to a direction to convict, albeit the jury were left to decide between murder and the less serious alternative of manslaughter.

17. Mr Darryl Saw, SC, on the Respondent's behalf, accepted that the jury were not given an option to acquit the Appellant altogether. He submitted that on the facts of this case, where no issue had ever arisen that the Appellant was guilty of manslaughter at least, the directions given by the judge were entirely appropriate.

18. In submitting that the judge had made an error by taking this course, Mr Poll began by directing our attention to a passage in Archbold [2003] para 4-411 at page 485 which reads:

"L. DIRECTION TO CONVICT

It has been held, in a number of cases, that there may be circumstances in which a judge can properly direct a jury that on the evidence before them an issue must be decided in a way adverse to the accused: see R v Comerford and Healey, 49 Cr App R 77,CCA; R v Ferguson, 54 Cr App R 410, CA; R v Martin, 57 Cr App R 279, CA.

It has always been said that such circumstances would be rare. The mood has gradually changed, however, to the extent that the Court of Appeal has effectively arrived at the view that such a direction should never be given. The culmination of this movement is R v Gent, 89 Cr App R 247 (post). Important cases on the way were DPP v Stonehouse [1978] AC 55, HL; R v Thompson (Michael), 79 Cr App R 191, CA; R v Challinor, 80 Cr App R 253, CA; and R v Gordon (N.E.), 92 Cr App R 50, CA."

19. In the present case, there was no evidence to suggest that the Appellant, when he killed the deceased, had done so other than unlawfully. The only real questions to be determined by the jury, as the judge had carefully directed them, were confined to the Appellant's intention at the time of the killing and as to whether the Appellant, assuming the intention required to prove murder had been proved, had acted under provocation. The question we have had to ask, therefore, is whether the jury, in the light of modern authority, should have been given an option to acquit the Appellant entirely, although his own case seemingly excluded such a possibility.

20. Mr Poll placed considerable reliance on the principle which emerged as the result of the majority decision in the House of Lords in DPP v Stonehouse [1978] AC 55 at 80, namely, as Lord Edmund-Davies expressed...

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2 cases
  • Leung Fei Wah v Hksar
    • Hong Kong
    • Court of Final Appeal (Hong Kong)
    • February 28, 2006
    ...Deputy Judge misdirected the jury in law contrary to settled authority in common law jurisdictions – in Hong Kong (HKSAR v. Lui Tsi Fai [2003] 2 HKLRD 927), the United Kingdom (R v. Wang [2005] 1 WLR 661), Australia (Jackson v. The Queen (1976) 134 CLR 42), and the United States (United Bro......
  • Hksar v Kwok Ka Ming And Others
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • August 13, 2007
    ...the further option of acquitting altogether was technically correct in the light of the judgment of this court in HKSAR v Lui Tsi-fai [2003] 2 HKLRD 927 which was later confirmed by the Appeal Committee of the Court of Final Appeal (see: Lui Tsi-fai v HKSAR, FAMC 53/2003). We are not surpri......

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