Hksar v Zeng Liang Xin

Cited as:(1997-1998) 1 HKCFAR 12; [1997] HKLRD 1204
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FAMC1/1997
Judgment Date:16 Oct 1997
FAMC000001/1997 HKSAR v. ZENG LIANG XIN

IN THE COURT OF FINAL APPEAL

HONG KONG

Application for Leave to Appeal, FAMC No. 1 of 1997

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Between:

ZENG LIANG XIN Applicant
AND
HKSAR Respondent

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Appeal Committee: Chief Justice Li, Mr Justice Litton, PJ and Mr Justice Ching, PJ

Date of hearing: 25 September 1997

Determination: 16 October 1997

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D E T E R M I N A T I O N

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Chief Justice Li :

1. This is the determination of the Appeal Committee upon an application for leave to appeal brought under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 ("the Ordinance").

The trial and the Court of Appeal

2. On 4 September 1996 the applicant was convicted after trial before V Bokhary J and a jury of murder and was sentenced to imprisonment for life. On 18 July 1997, the Court of Appeal (Chan Chief Judge, Liu JA and Keith J), after granting him leave to appeal against conviction, dismissed his appeal. On 12 August 1997, the Court of Appeal (Liu JA, Saied J and Keith J) refused his application for an order certifying that there is involved in the decision of the Court of Appeal a point of law of great and general importance and alternatively that a substantial and grave injustice has been done.

The application to the Court

3. By his summons and motion both filed on 14 August 1997, the applicant applied to this Court (i) for an order certifying that there is involved in the decision of the Court of Appeal a point of law of great and general importance or that a substantial and grave injustice has been done and (ii) for leave to appeal. The point of law was set out in these terms :

"Is it necessary for the trial Judge, when directing the jury on the issue of provocation, to refer them to the entire factual situation, including the characteristics of the accused, his history and the circumstances in which he was placed at the material time, which may bear on or affect the gravity of the provocation, where the accused has not given evidence or, if he testifies, has not given evidence to the effect that he was provoked to kill or inflict really serious bodily harm to the victim ?"

The grounds of his application are set out in his motion. They contend that the judge's direction on provocation was inadequate in that she did not deal with the evidence said to be relevant to the gravity of the provocation.

The background to the issue of provocation

4. At the trial, the applicant accepted that on 30 October 1995 the deceased Madam Wong Miu-kuen, known as Yee Tse, died at his hands and that he had subsequently dismembered her body and had disposed of her remains. What was in dispute were the circumstances in which she had died.

5. The applicant and Madam Wong worked together in a restaurant in Tai Po. The applicant is in his early 30's. His wife and two children are in the Mainland. He came to Hong Kong in 1993 and was due to return to the Mainland on 3 November 1995. He had finished working at the restaurant on 28 October. His evidence was that on the afternoon of 30 October he met Madam Wong, with whom he had become friendly, for a snack. She offered to help him complete his packing. They went back to his home that afternoon. His evidence was that while they were there she made it clear that she wanted to sleep with him. He claimed that she took off some of her clothes and sat on his lap.

6. His evidence in the witness box as to what happened then was summarised by the judge in her summing-up as follows:

"The victim forced herself upon him. He pushed her away. She bumped her head against the metal edge of the bunk-bed and became unconscious. He tried to revive her. She was still breathing, but remained unconscious. So he waited - did not seek help for her but just waited. After waiting for about 30 to 40 minutes, he again tried to revive her. But this time he saw blood around her head and found that she had gone stiff and cold and was no longer breathing. Afraid that he would be blamed or punished for her death, he chopped her body into pieces and disposed of the pieces. As he was about to chop her body into pieces, he saw her bracelet, necklace and ring. Later he decided to keep them. On the following day, he found $3,400 in her handbag and he decided to keep that too."

Accordingly, the applicant's case was that Madam Wong's death was an accident. He had had no intention of harming her at all. He had done no more than push her away. When he decided to dismember her body it was plain that she had already died.

7. The applicant had given a number of interviews to the Police. After a trial within the trial, the judge ruled that the records of the interviews were admissible. The second interview is an important one for present purposes. After the caution, and his request to the interviewing officer to write down for him what he said, the applicant is recorded to have said:

"I did not kill her on purpose. She took off all the clothes, held me in her arms, saying to go to bed with me to sleep. If I refused, then sued [sic] me for raping her. I was angry, so I took a chopper and chopped her to death."

This is a crucial passage and we shall refer to it as "the crucial passage".

8. Then the interviewing officer told the applicant that he had some questions to ask him and reminded him of the caution and the applicant said he was willing to answer and...

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