IN THE COURT OF FINAL APPEAL
Application for Leave to Appeal, FAMC No. 1 of 1997
ZENG LIANG XIN
|Appeal Committee: Chief Justice Li, Mr Justice Litton, PJ and Mr Justice Ching, PJ
Date of hearing: 25 September 1997
Determination: 16 October 1997
D E T E R M I N A T I O N
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 he wished the interviewing officer to write for him. The record of interview then recorded the following questions and answers:
"Q. Just now you said did not kill her on purpose. Can you say more clearly ?
A. On that day, Yee Tse phoned to the quarters to look for me, making an appointment with me to go to wait at the McDonald's Restaurant downstairs of New Best Restaurant, saying to invite me to tea. Around 3 pm I arrived at the restaurant. Having met her, we went in and we had set meal. After having food, went back to the quarters by taxi. The time then was about 4 to 5 o'clock. She helped to pack the clothes and luggage because I would go back to Mainland two days later. After packing the things, we sat on the bed and chatted. While chatting, she suddenly held me in her arms, saying she liked me very much, and further said if I would be good with her, I need not repay the 3,000 dollars which I had previously borrowed from her. She then took off all the clothes and again held me in her arms. I pushed her away. However, she said loudly that if I did not sleep with her, she would tell other people that I raped her. While saying so, she held me in her arms. I said I have already had a wife and children and could not do that. Thus I pushed her away with great force. It happened that her head bumped against the metal bar of the bunk beds; she fainted and fell onto the floor. Seeing that she did not move, I was very frightened at that time. Sitting there, I waited for her to wake up. I sat there for almost an hour and saw that she did not wake up. I was thinking that if she woke up, she would accuse me of having raped her. So I took a chopper and chopped her at the neck, chopping her to death.
Q. What is the full name of the Yee Tse you mentioned ?
A. It is 'WONG Miu-kuen'.
Q. When was it when you said that day ?
A. It was the 30th day of last month.
Q. After you had chopped Yee Tse to death, what did you do ?
A. The time then was about 7 pm. I chopped her neck with a chopper. Seeing that she had no breathing, I cut her head with the chopper using great force, then cut her arms, and finally cut her legs."
9. The contents of the records of the later interviews were consistent with what the applicant said at the 2nd interview and they do not affect the matter, as far as the present application is concerned.
The issue of provocation at the trial
10. At the trial, the defence of provocation was not relied on by defence counsel Mr Mullick. That was as the Court of Appeal remarked understandable. It was likely to undermine the applicant's case that Madam Wong's death was accidental. The trial judge however decided to leave the issue of provocation to the jury which the jury by its verdict plainly rejected. In the Court of Appeal, it was common ground that the trial judge was right to leave that issue to the jury.
11. As was made clear by Mr Mullick in his submissions to us, the only material which could justify leaving the issue of provocation to the jury was the crucial passage and nothing else. Mr Bruce SC, in his submissions to us, agreed that this was the only material.
12. The judge directed the jury in the following terms:
" ... provocation. You have seen ... a record of interview in which the accused is recorded as saying: that the victim had threatened him with a false accusation of rape if he refused to sleep with her; and that he became angry, took a chopper and chopped her to death.
In the witness box, the accused denied that was what happened. Nevertheless, since there is some evidence to the effect that he killed the victim because she made him angry, I must direct you on the question of provocation."
13. It will be observed that in the witness box he did not say that she threatened him with a false accusation of rape if he refused to sleep with her, and that he chopped her because he was angry as a result of her threat.
The issue of provocation in the Court of Appeal
14. The debate in that Court turned on whether the judge's direction on provocation was adequate; whether she should have referred to evidence of (i) his personal history and (ii) the circumstances in which he was placed which the applicant contended related to the gravity of the provocation. As to (i), he had come to Hong Kong to...