烹 屍 三 狂 魔 判 囚 終 身
( 星
島 日 報 報 道 ) 烹 屍 案 三 名 被 告 昨 被 法 官 阮 雲 道 判 處 終 身 監 禁 。 此 為 誤 殺 罪 的 最 高 刑 期 ﹐ 刑 罰 之 重 實 屬 罕 見 。 法 官 指 三 被 告 心 狠 手 辣 ﹐ 喪 心 病 狂 ﹐ 殘 忍 程 度 難 以 想 像 。 為 了 保 障 公 眾 不 受 他 們 危 害 ﹐ 故 判 各 人 在 獄 中 度 過 餘 生 。
轟 動 全 港 的 加 連 威 老 道 女 公 關 遭 虐 殺 後 烹 屍 案 ﹐ 三 名 被 告 陳 文 樂 、 梁 勝 祖 及 梁 偉 倫 雖 於 早 前 被 陪 審 團 裁 定 謀 殺 罪 不 成 立 ﹐ 僅 誤 殺 罪 名 成 立 ﹐ 然 而 法 官 阮 雲 道 在 參 考 三 被 告 的 精 神 及 心 理 科 報 告 後 ﹐ 指 斥 三 被 告 有 心 理 病 變 徵 狀 ﹐ 極 有 可 能 會 對 公 眾 安 全 造 成 威 脅 ﹐ 故 重 判 三 人 終 身 監 禁 。
首 被 告 聞 訊 仰 天 長 嘆 ﹐ 次 被 告 則 兩 眼 通 紅 ﹐ 惟 第 三 被 告 仍 木 無 表 情 。 他 們 隨 即 由 囚 車 載 走 ﹐ 在 監 獄 度 過 餘 生 。
法 官 阮 雲 道 指 出 ﹐ 近 年 在 香 港 亦 絕 少 聽 到 如 此 殘 忍 及 邪 惡 的 兇 案 ﹐ 三 被 告 心 狠 手 辣 ﹐ 喪 心 病 狂 的 做 法 ﹐ 實 在 令 人 髮 指 。 他 更 引 用 主 控 官 魏 富 達 的 一 句 說 話 ﹕ 「 即 使 是 一 頭 畜 牲 ﹐ 亦 不 會 受 到 如 此 的 虐 待 ﹗ 」
其 後 法 官 再 略 述 三 人 虐 打 死 者 的 過 程 和 方 法 ﹐ 縱 然 只 是 略 述 ﹐ 仍 須 花 上 二 十 分 鐘 。 主 控 官 政 府 律 師 陳 立 恩 在 回 想 起 整 個 虐 殺 烹 屍 過 程 ﹐ 仍 覺 得 嘔 心 恐 怖 。 法 官 更 指 三 被 告 自 辯 時 故 意 避 開 死 者 受 傷 的 嚴 重 程 度 ﹐ 未 說 出 死 者 遭 折 磨 受 傷 實 況 。
提 到 次 被 告 梁 勝 祖 曾 逼 死 者 吃 糞 便 及 向 死 者 口 中 射 尿 時 ﹐ 法 官 阮 雲 道 直 斥 此 舉 是 對 死 者 莫 大 的 侮 辱 ﹐ 「 難 以 想 像 會 有 如 此 殘 忍 的 人 ﹐ 可 以 對 一 名 僅 廿 三 歲 的 女 子 做 出 這 樣 的 事 ﹗ 」
法 官 綜 合 三 被 告 的 精 神 及 心 理 專 家 報 告 ﹐ 指 三 人 都 會 對 公 眾 造 成 危 險 。 首 被 告 容 易 衝 動 ﹐ 毫 無 悔 意 ﹐ 對 死 者 長 時 間 虐 待 及 碎 屍 ﹐ 可 見 其 心 理 病 變 的 傾 向 ﹔ 次 被 告 喜 歡 報 仇 ﹐ 少 顧 後 果 ﹐ 自 我 中 心 ﹐ 充 滿 犯 罪 思 想 ﹐ 對 社 會 公 眾 有 中 度 的 危 險 性 ﹔ 第 三 被 告 梁 偉 倫 則 心 狠 手 辣 ﹐ 也 毫 無 悔 意 ﹐ 惟 對 公 眾 危 險 性 不 高 。
阮 雲 道 法 官 最 後 指 出 ﹐ 三 被 告 犯 了 極 嚴 重 的 罪 行 ﹐ 實 在 罪 有 應 得 ﹐ 公 眾 亦 應 受 到 保 障 ﹐ 免 受 這 三 名 犯 人 的 危 害 ﹐ 而 法 庭 亦 有 責 任 向 公 眾 表 現 出 對 幹 犯 此 種 罪 行 的 人 深 惡 痛 絕 。
法 官 最 後 按 三 個 判 案 原 則 ﹐ 判 他 們 終 身 監 禁 ﹕ ( 一 ) 他 們 犯 了 需 長 期 判 監 的 嚴 重 罪 行 ﹔ ( 二 ) 各 被 告 的 精 神 狀 況 ﹐ 過 往 經 歷 及 性 格 不 穩 定 ﹔ ( 三 ) 罪 行 嚴 重 及 可 能 威 脅 他 人 的 安 危 ﹐ 及 極 可 能 再 犯 。
三 名 被 告 分 別 為 三 十 四 歲 的 陳 文 樂 、 廿 八 歲 的 梁 勝 祖 及 廿 一 歲 的 梁 偉 倫 。 案 件 編 號 ﹕ 高 院 刑 事 四 ○ 一 ─ ─ 九 九 / 一 八 五 ─ ─ 二 ○ ○ ○ 。
就定罪提出上訴
肢解女公關案 原審引導不當
烹屍殺人一犯聆訊重審
03/05/2003
轟動一時的夜總會女公關遭肢解烹屍、頭顱藏Hello Kitty公仔一案,三名被告前年被裁定誤殺罪成判囚終身後,早前就定罪提出上訴,上訴庭昨頒布書面判詞,批准其中一被告的上訴申請,並下令聆訊是否就其誤殺罪重審,其餘兩名被告遭駁回定罪上訴,法庭稍後將聽取二人的刑期上訴理據。
三名被告陳文樂、梁勝祖及梁偉倫於二○○○年十月就謀殺罪受審,陪審團裁定三人謀殺罪名不成立,但誤殺罪成,判處終身監禁,三人另就非法禁錮及阻止屍體合法埋葬罪判刑七至九年。上訴庭現只就定罪上訴聆訊,陳文樂及梁偉倫的定罪上訴被駁回,梁勝祖的定罪上訴申請獲批准。
判詞指出,原審法官引導陪審團時,就闡述死因一點提出不適當引導,錯誤指出死者死前一天曾服食毒品冰,故陪審團考慮誤殺裁決時,需決定虐打是否構成死者的主要死因,不過這點並非控辯雙方採納的論據,而原審期間亦無明確證據顯示死者死前曾服食冰,但原審法官雖然引導不當,綜合證供後認為此錯誤不足影響裁決。
上訴庭亦不接納辯方指稱,控方披露被告的黑社會背景及肢解詳情影響陪審團裁決,故維持陳文樂及梁偉倫的定罪。
合謀定罪不穩當
不過,上訴庭指出原審法官就合謀一點引導陪審團時,無引導陪審團考慮梁勝祖於死者死前一天不在案發現場,故若死者最終由他人虐打致死,梁勝祖是否需負刑責?故梁勝祖的定罪不穩當,裁定他上訴得直,並下令進一步聆訊是否需就誤殺罪重審。
本案發生於九九年三月,死者樊敏儀因欠下陳文樂債項,遭三名被告禁錮於尖沙咀加連威老道一單位虐待致死,包括遭腳踢五十多下、強迫飲尿、食糞便、灌飲生油、打火機燒腳、辣椒油滴傷口等,三人其後將死者肢解,頭顱藏於Hello Kitty公仔內,內臟及屍體烹煮後餵狗及棄置
或 申 請 重 審
上 訴 庭 法 官 於 判 詞 中 指 出 , 次 被 告 梁 勝 祖 在 死 者 遇 害 前 一 天 沒 有 到 肇 事 單 位 , 原 審 法 官 在 引 導 陪 審 團 時 , 雖 有 要 求 陪 審 員 考 慮 梁 是 否 與 其 餘 二 人 「 合 謀 」 殺 死 受 害 人 , 但 沒 有 引 導 他 們 考 慮 , 梁 「 離 開 」 肇 事 單 位 , 是 否 足 以 終 止 他 與 其 他 二 人 的 「 合 謀 」 關 係 , 程 序 上 出 現 了 重 要 錯 誤 , 令 梁 的 誤 殺 定 罪 並 不 穩 妥 。
因 梁 勝 祖 並 未 就 非 法 禁 錮 一 罪 提 出 上 訴 , 故 該 定 罪 維 持 原 判 , 就 該 罪 行 梁 被 判 囚 9 年 。
轟 動 一 時 的 hello kitty 藏 屍 案 發 生 於 1999 年 3 至 4 月 間 , 任 職 女 公 關 的 受 害 人 樊 敏 儀 ( 23 歲 ) 因 欠 債 8000 元 , 遭 3 名 被 告 帶 返 尖 沙 嘴 加 連 威 老 道 一 個 單 位 禁 錮 , 毒 打 一 個 月 致 死 後 更 遭 肢 解 、 烹 煮 及 棄 屍 , 頭 顱 藏 於 hello kitty 公 仔 內 。 其 後 警 方 接 手 調 查 , 在 案 發 單 位 內 僅 尋 回 樊 的 頭 骨 、 一 隻 臼 齒 及 內 臟 。
3 名 被 告 其 後 被 控 謀 殺 、 非 法 禁 錮 及 阻 止 屍 體 合 法 埋 葬 罪 。 經 審 訊 後 陪 審 團 裁 定 3 人 謀 殺 罪 名 不 成 立 、 誤 殺 罪 成 。 主 審 法 官 阮 雲 道 鑑 於 犯 案 手 段 殘 忍 及 變 態 , 判 處 3 人 終 身 監 禁 , 須 服 刑 最 少 20 年 才 可 申 請 覆 核 減 刑 。
【本報特訊】九九年轟動全港的舞小姐遭碎屍,人頭藏於「HELLO KITTY」公仔內一案,高院法官阮雲道痛斥三名誤殺罪成的被告喪心病狂、禽獸不如,重判終身監禁,上訴庭昨日裁定次被告梁勝祖(27歲)上訴得直,引述證供指梁在舞小姐樊敏儀死亡前,曾經離開案發單位,原審法官未充分引導陪審團,考慮梁曾不在場,沒有再參與共同犯案,虐打令女死者喪生,上訴庭因此推翻原判發還重審。
至於同案被告陳文樂(34歲)及梁偉倫(21歲),上訴庭副庭長司徒冕同樣指出,原審法官引導陪審團有偏差,但對陳、梁二人定罪,並無構成司法不公,上訴庭因此運用《刑事訴訟程序條例》的權力,作出法律指引,駁回兩被告的上訴,維持原判定罪。上訴庭另訂日子聆訊兩被告的減刑申請。
另兩人維持原判定罪
上訴庭判詞指出,原審控辯雙方分別提出女死者樊敏儀的死因有兩個可能,其一是遭被告虐打,其二是她吸食過量「冰」毒品,陪審團須確定死因屬於前者,才可把三被告定罪,但原審法官在引導陪審團時,考慮女死者有可能綜合上述兩種原因致命,上訴庭強調控辯雙方從未提出此點,不明白原審法官為何作出如此指引。由於不影響裁決公正,上訴庭因此維持陳文樂及梁偉倫的定罪。
上訴庭判詞引述原審證供,顯示梁勝祖在女死者喪生當日及前一晚,曾離開尖沙嘴加連威老道案發單位,到她死後才折返,女死者喪生前一晚仍遭虐打,可能是致命主因,原審法官應引導陪審團考慮,梁當晚不在場,是否等於他「退出」虐打,不構成與其餘兩被告共同犯案,上訴庭指這方面指引不足,令定罪不穩妥須予推翻。
這宗轟動一時的兇案發生於九九年三月,女死者樊敏儀因欠債,遭三被告禁錮在案發單位四星期,以多種殘暴手法虐打死亡,三人事後肢解屍體並烹煮棄置,頭顱收藏在「HELLO KITTY」公仔內
CACC 522/2000
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL APPEAL NO. 522 OF 2000
(ON APPEAL FROM HCCC 401 OF 1999 AND 185 OF
2000)
_________________
BETWEEN
HKSAR Respondent
and
CHAN
MAN LOK (D1)
LEUNG
SHING CHO (D2)
LEUNG
WAI LUN (D3) Applicants
________________
Coram:
Hon Stuart-Moore VP, Stock JA and Seagroatt J
Dates of Hearing: 26-27 March 2003
Date of Judgment: 2 May 2003
_______________
J U D G M E N T
_______________
Stuart-Moore VP (giving the judgment of the
Court):
Introduction
This case concerns the killing of a woman,
aged 23, who was taken from her home and made a prisoner in the flat occupied
by the Applicants. Whilst there, she was
kept in degrading conditions, subjected to torture and constantly
assaulted. After she died, her body was
dismembered.
The indictment which faced the Applicants
(D1, D2 and D3 respectively) alleged three common law offences. They all pleaded not guilty to the allegation
in the first count that on an unknown date in mid April 1999 they murdered Fan
Man-yee (the deceased). On 21 November
2000, following a trial before Nguyen J occupying about thirty-five days, the
Applicants were acquitted of murder but convicted of manslaughter as an
alternative to that count.
The second count alleged the false
imprisonment of the deceased between 17 March 1999 and mid-April 1999. D1 and D3 pleaded guilty to this count. D2 was convicted by the jury.
On count 3, all the Applicants pleaded
guilty to preventing the lawful burial of a corpse.
On 6 December 2000, the judge imposed on
each of the Applicants a discretionary life sentence for manslaughter. All of them were given a minimum term of
twenty years to be served, pursuant to the provisions of section 67B of the
Criminal Procedure Ordinance, Cap. 221.
They each also received sentences on counts 2 and 3, amounting in D1 and
D3’s cases to a total of seven years and in D2’s case to a total of nine years,
which were ordered to run concurrently with their life terms.
Originally, all the Applicants applied for
leave to appeal against conviction and sentence. On 11 August 2001, D3 abandoned his
application in relation to conviction.
On 31 January 2002, when the matter first
came before this court, the Applicants were unrepresented. Earlier, they had been given legal aid which
was confined to advice as to possible grounds of appeal. Apparently, no grounds were found. However, Mr Darryl Saw, SC on behalf of the
Respondent, in a letter dated 24 January 2002, identified a number of
misgivings about the summing up to which we shall turn in due course.
On this basis alone, we then adjourned the
proceedings for the purposes of giving the Legal Aid Department a chance to
reconsider whether legal representation should be given to the Applicants. A further issue which we considered might
have merited argument related to the adequacy of the material to justify the
imposition of discretionary life sentences.
All of the Applicants are now
represented. Freshly prepared grounds of
appeal, largely formulated around the concerns raised by Mr Saw in relation to
conviction and sentence have now been filed.
In addition, D3 sought to have the abandonment of his application for
leave to appeal against conviction treated as a nullity.
It is plain that D3’s abandonment occurred
at some stage after D3 had been informed that counsel who had originally been
instructed to advise on the prospects of appeal had not been able to find any
arguable grounds. Although we are aware
that there is authority for saying that wrong advice concerning the merits of
an appeal does not render an abandonment of an application for leave to appeal
a nullity, we do not propose to decide this matter as a point of law. We shall, as we indicated to counsel during
the hearing, treat the abandonment in the unusual circumstances which have
arisen as a nullity.
Background
On 26 May 1999, police officers went to a
flat on the third floor of 31 Granville Road in Tsim Sha Tsui as a result of
information provided to them by a 13-year-old girl named Lau Ming Fong
(PW2). On the first floor canopy, facing
Granville Road, they discovered a plastic bag containing the decomposed heart,
lungs, liver and intestines of the deceased.
Inside the flat, they found most of the deceased’s skull. This had been sewn into a ‘Hello Kitty’
doll. No other parts of the deceased’s
body, except a tooth, were ever located.
In due course, it was discovered that the
deceased had been abducted from her address on 17 March 1999. From there, she had immediately been taken to
the flat in Granville Road where she died in mid-April 1999.
The flat itself was divided into six
rooms. D1 had been given permission to
live there by Tong Ching-hang who was one of the occupants, with Ng Wan-ming
(‘Ah Sam’), of the flat on the floor below.
D1 lived with his wife in Room 4, D2 lived in Room 6 with his girlfriend
‘Ah Yee’ and D3 lived in Room 1 with his girlfriend, PW2. Room 3 was occupied by the deceased.
Behind some of the gruesome facts which emerged
from the case, there lay an extensive criminal background. This was relevant towards explaining the
relationships between the Applicants themselves, and between them and the
deceased, as well as providing a motive and an explanation for other events
which took place. D1, aged 33, knew the
deceased from his work as a cashier at a vice establishment where she had
worked as a prostitute. D2 and D3, aged
26 and 19 respectively, stated that D1 was their ‘Big Brother’ and that as such
they were his triad followers.
It was the prosecution’s case that the
deceased was abducted by D2 and D3 on the instructions of D1 in order to secure
payment of a debt which was said to be owing by the deceased to D1. This debt had started in a relatively modest
amount but, notwithstanding its repayment, it had seemingly escalated out of
all proportion to the original sum.
After the abduction, the deceased was kept at the flat in Granville Road
where the Applicants were living. Over
the course of the next four weeks, the prosecution alleged that she was so
severely maltreated that eventually she died from the injuries she received at
their hands.
In general terms, it seems that the
deceased slept on the floor of her room although for a time she was made to
sleep inside a wooden wardrobe. When her
physical condition began to deteriorate, it appears that some of her wounds
became infected. This in turn created a
bad odour. It may well be that the
deceased’s state, in particular her legs and feet, had been allowed to become
so serious that if medical treatment had been sought for her, a police enquiry
into how she had come by her injuries would have been inevitable. In such circumstances, the prosecution
suggested, the Applicants were probably unable to release the deceased without
putting themselves in jeopardy.
The principal witness for the prosecution
was PW2 who gave evidence under an immunity from prosecution. She was able to describe some of the violent
events which occurred over the four weeks of the deceased’s captivity. She was 15 years old by the time she gave
evidence and although a passive eyewitness to many of the incidents, she had
also participated to a limited extent in assaulting the deceased. It was her evidence which enabled the
prosecution to put before the jury a pattern of conduct on the part of all the
Applicants showing that they were unrelenting in their violence towards the
deceased.
The events which took place in the
Granville Road flat came to light after PW2 had been detained for unconnected reasons
in a home for wayward girls. It was
there that she confided to another inmate that her boyfriend (D3) had been
involved in a killing. She was then
interviewed by the police.
Issues at trial
There was no issue at trial, so far as D1
and D3 were concerned, that the deceased had been abducted and held against her
will at the Granville Road flat or that she had been subjected for about a
month to numerous assaults, indignities and torture. None of the Applicants disputed that the
deceased had died in the flat or that her body was later dismembered and
disposed of by them. The central issue
on count 1 which the jury had to decide was whether or not, individually or
collectively, the Applicants’ conduct had been proved to have caused the
deceased to die. In this context, the
jury had to consider the defence contention that, despite the deceased’s ordeal
at the hands of the Applicants, a possible cause of death was that she had died
from an overdose of methamphetamine hydrochloride (‘ice’). This was largely based on evidence given by
D1 and D3 that shortly before her death the deceased had been eating ‘ice’
crystals. Assuming the jury to have been
satisfied about causation, they had next to consider the intention of each
Applicant at the material time.
There were extensive video-recorded
interviews given by D2 and D3 in which they made a large number of
admissions. D1, on the other hand,
having been arrested on 26 May 1999, said nothing which incriminated him except
that it had been an accident and that: “It never occurred to us that it would
turn out like this.” The self-serving
contents of D1’s later interview were not produced at trial.
Evidence of Lau Ming-fong (PW2)
We are grateful to counsel for the
Respondent for their most helpful summary of the evidence, including that given
by PW2 which we can in large measure adopt.
PW2 admitted hitting the deceased with a water pipe and with her
hands. She described several very
serious assaults being made on the deceased by the Applicants, sometimes acting
alone and otherwise in varying combinations.
The first of the violent incidents
described by PW2 came about during the first evening that the deceased spent in
captivity. This was just after she had
been brought back to the flat by D2 and D3.
The deceased was in fear and she was asked by D3 why she had not repaid
the debt she owed to D1 and why she had not returned telephone calls. D3 then kicked the deceased more than fifty
times to all parts of her body, counting aloud the times he kicked her and
sometimes asking the deceased where he should strike her. PW2, who had been watching, said that this
was one of the occasions she had also struck the deceased with her hand and
that this was done on D3’s instructions.
Neither D1 nor D2 were present in the room during this incident.
In the second incident, which may have been
on the second day of her captivity, D1 was asleep in the flat while D2 and D3,
in a cruel and cowardly fashion, maltreated the deceased by burning her and
then rubbing chilli oil or sauce into the wounds. PW2 described this as having “fun”. She said that plastic drinking straws and a
plastic bottle were melted with cigarette lighters and dripped onto the
deceased’s feet. For some of the time,
D2 held the deceased’s legs to prevent her from moving and she was instructed
to laugh or smile while molten plastic was being dripped onto her. PW2 also participated, and later she saw D2
and D3 using a cigarette lighter to burn the deceased’s feet. She described the skin on the deceased’s feet
as completely disappearing in places leaving blistering. D2 and D3 then applied the chilli, amongst
other things, to the wounds on her feet.
They also put some into the deceased’s mouth as well as on other wounds
she had on her face and body and then, having used a stick with a rough surface
to rub the sauce into her wounds, they applied more chilli. The deceased was left in great pain. Not satisfied, D2 then urinated into her
mouth. Next, D2 and D3 forced the
deceased to eat human excrement. Lastly,
cooking oil was poured into her mouth.
The third incident involved D3 who tightly
tied the deceased’s hands to an overhead rack with elastic wires, forcing her
to remain standing for many hours. In
the result, her hands became considerably swollen. This was said to have been done to prevent
the deceased scratching the scabs that had formed over the wounds on her feet.
The fourth incident involved D1 who struck
the deceased’s hands with a water pipe.
Again, this was because the deceased had been scratching the scabs on
her wounds. D1 made the deceased spread
her fingers on the floor and he then struck them with force more than
once. PW2 left the room where this
happened for a time and when she returned she saw that the deceased’s face was
swollen and covered with blood.
The fifth incident involved all the
Applicants. The deceased was held by D2
and D3 while D1 used his knee to hit her in the chest on what was said to have
been no more than ten occasions.
Throughout, D1 was asking the deceased questions. She replied with words to the effect that she
was sorry and that she would not do it again.
The sixth incident described by PW2 was
really a series of assaults on the deceased spread over a period of several
days. As to these, they occurred on a
daily basis. These were committed by D2
and D3 and sometimes also by D1. These
attacks on the deceased were sometimes carried out by kicking, and sometimes by
striking her with hands, fists, water pipes or a wooden table leg. On one occasion, PW2 observed “bubbles” on
the deceased’s head after the beating she had been given.
The seventh incident came after the
deceased had been found by PW2, D3, ‘Ah Sam’ (from the flat on the second
floor) and ‘Ah Yee’ (D2’s girlfriend) lying on the toilet floor. This was in the early hours of the morning
after they had returned from a discotheque.
D1 was informed and he then struck the deceased several times on the
breasts with a water pipe, remarking that the deceased had uneven breasts. When questioned about some discrepancies in
her account, PW2 said: “In those days they assaulted her every day, so I cannot
recall every detail so clearly.”
The eighth incident was, according to PW2,
on the evening of the same day as the previous assault. PW2 heard banging noises similar to the
sounds she had previously heard when D2 and D3 would kick the deceased or beat
her with water pipes. When PW2 went into
Room 3, the deceased was on the toilet floor as if picking up something. She could not see what this was but the
deceased was putting whatever it was into some tinfoil she was holding. D1 told PW2 that the deceased had dropped
‘ice’ onto the floor. PW2 left the room
but later, when she again heard banging sounds coming from Room 3, she went
inside and saw the deceased in great pain, wriggling her body, panting, crying
out and in difficulty with her breathing.
D1 and D3 were with her. PW2 said
that the deceased looked like a ‘junkie’ who was tortured by the urge for
drugs. D1 told her that the deceased was
suffering from withdrawal symptoms. When
the deceased became motionless, D1 proceeded to ignite a cigarette lighter
against the deceased’s feet which made her move them. D1 then asked D3 and PW2 to lift up the
deceased, but when she was leant against the wall, she slid down to the
floor. Importantly, in terms of the
causation of death to which issue we shall have to return in some detail, this
incident seemingly took place on the night before the deceased died.
In summing up to the jury, the judge dealt
with a number of other assaults as well.
These were general allegations where PW2 had seen D2 and D3 each
striking the deceased with a water pipe all over her body, except the
head. PW2 described how the deceased had
been told not to make any noise while being hit. This may account for an outsider, on only one
occasion, hearing cries for help. Mr
Wong, a neighbour who lived on the fourth floor, gave evidence of hearing a
female voice calling out for help and being sworn at by a man.
PW2 had not been alone in observing the
deceased being assaulted at the Granville Road flat. Ng Wan-ming (‘Ah Sam’) lived in the flat
below, on the second floor. He described
how, in one incident, he had observed D2 and D3 beating the deceased with their
hands and fists. On another occasion, he
saw D2 and D3 kicking and hitting the deceased.
This witness also observed the pitiful state of the deceased’s arms and
legs.
It appears that the deceased’s condition
deteriorated to a considerable extent in the last few days of her life. Eventually, when it was thought that the
deceased had died, PW2 was asked by D3 to check. She found the deceased had no heartbeat and
that her limbs were stiff. She also
noticed a white discharge inside and outside the deceased’s nostrils.
As the body began to decompose, the
Applicants moved a refrigerator into the flat.
They removed the shelving and put the deceased’s body inside it. It was later decided to dismember the body
and dispose of the remains.
Pathologist’s evidence
On any view, the deceased had been savagely
beaten and cruelly maltreated over a period of about a month. Dr Poon Wai-ming, who conducted the
post-mortem examination, was unable, from the limited material available, to
say what had caused the deceased to die.
In view of the suggestion made by the
defence that the deceased may have died from a drug overdose rather than the
combined effect of an assault or assaults upon her, he was questioned about
evidence which it was anticipated might support this view. He agreed that if “whitish fluid” had been
observed (by PW2) in the area of the nose of someone who had taken ‘ice’, this
would be consistent with an overdose. In
relation to D2’s observation that when he saw the deceased’s body he noticed
blood in the nose and ears, Dr Poon said that blood in the nose could have been
caused by trauma prior to death but it was also consistent with a drug
overdose. The bleeding from the ear, on
the other hand, was not a usual consequence of drug overdose, and was likely to
be the result of trauma to that region of the head.
Dr Poon, in answer to prosecuting counsel’s
questions, set out his assessment of the deceased’s behaviour following the
treatment she had received in the days leading up to her death in these terms:
“… if she was kicked and assaulted all over her body, certainly she
will have multiple injuries to her soft tissue and that of course would lead to
a great deal of pain, not to mention emotional suffering, fear and anxiety, and
all this could explain her wriggling and this sort of movement of her body. Secondly, if she was assaulted all over the
body this might have caused injuries to her chest wall. The injury to her chest wall might have
caused, first of all, fracture of ribs, and secondly damage to the lung tissue
and even bleeding into the chest …. cavity surrounding the lung. All these three factors, fractured rib,
injury to the lung and bleeding into the chest cavity might have impaired the
breathing capacity of an individual and caus(ed) difficulty in breathing. You have outlined to me that Fan Man-yee (the
deceased) was observed to be short of breath and rapid breathing and this
finding could have been explained by injuries to the chest organ and the ribs.”
(Appeal bundle p. 1724)
Dr Poon was shown a number of water pipes
which had been found at the Granville Road flat and he confirmed, if any
confirmation was needed, that they could cause serious injury if used to strike
someone.
On the subject of oral consumption of
‘ice’, it was Dr Poon’s opinion that the inhalation of fumes into the blood
stream by heating the crystals to cause them to evaporate was likely to cause
more rapid absorption than by oral ingestion.
However, in order to bring about an overdose, it was, he said, the
amount which mattered rather than the method by which it was consumed.
Dr Poon agreed that the consumption of
approximately one gramme of ‘ice’ could lead to a fatal overdose and he did not
specifically relate this to the method of consumption. He was unable to rule out the possibility of
death having resulted from a drug overdose.
‘Ice’ consumption
There was evidence in the trial which, if
accepted, showed that the deceased was accustomed to taking ‘ice’ and that in
the month before her death she had been able to consume a certain amount of
this drug, although not in large quantities or on a regular basis. That she had been a consumer of ‘ice’ before
her abduction was confirmed by her common law husband, NG Chi-yuen.
Defence case
D1 said that he had known the deceased
since early 1997 when she had worked as a prostitute in the same villa where he
was employed. They used to consume ‘ice’
together. He described the deceased’s
indebtedness to himself as something which had arisen not from a money-lending
situation, as the prosecution had alleged, but from her theft of his property
worth about $8,000. D1 said that $4,000
was repaid and when he and D2 tried to obtain the remainder, they met with no
success. By September 1998, the
deceased’s indebtedness had become $30,000.
Seemingly, $14,000 was repaid leaving $16,000 still owing.
In March 1999, D1 said that D2, who he
described as “hot tempered”, had tried to recover the balance which was owed on
the debt. It was, according to him, D2’s
suggestion to bring the deceased back to the Granville Road flat. This was because she had no money and if she
was made to work as a prostitute she would then be able to repay what she was
said to owe.
On 17 March 1999, the deceased was brought
back to Granville Road and D1 admitted that he, with D2 and D3, all combined to
assault her. There was a further
occasion on which he accepted he had assaulted the deceased with D2 and
D3. This was because she had stolen some
of his ‘ice’.
D1 largely put the blame on D2 and D3 for
the assaults on the deceased. He said
that he had threatened to beat her with a water pipe because she had continued
to scratch the wounds on her legs where molten plastic had been poured on
them. However, he said that he had not
carried out his threat. His role was,
according to him, to act as a moderator as he was concerned for the deceased’s
welfare. He often told D2 and D3 not to
hit her.
Not long before the deceased died, D1 said
that he had found her on her hands and knees picking up ‘ice’ and putting it
into her mouth. She then passed out
after falling against a wall or cupboard.
After that, D1 described how he had seen her wriggling in pain on the
floor. For some unexplained reason, he
lit his cigarette lighter and placed it against her feet.
After her death, which followed not long
afterwards, D1 said that he placed the deceased’s corpse inside a
refrigerator. The body was dismembered
after it had been drained of blood in a bath tub. The internal organs were removed and the
flesh was taken off the bones. Having
cooked these parts, they were discarded into rubbish containers. The head was boiled and the flesh was removed
and discarded.
Throughout his evidence, D1 put most of the
blame for what happened to the deceased on D2 and D3, saying that he had learnt
about their treatment of her from the deceased herself or from PW2. D2 was the prime culprit according to him.
D2’s evidence was mainly consistent with
his earlier interviews. He attempted to
distance himself from the more serious assaults and to lay the blame for those
on the other two Applicants. D2 described
D1 as his triad ‘Big Brother’ for whom he worked in a money-lending business
and who had all along controlled him. In
March 1999, he was asked by D1 to go to the deceased’s house with D3 to collect
the debt she owed D1. He said that when
it was obvious she had no money, he was instructed on the telephone to take her
back to the flat in Granville Road.
D2 generally agreed with PW2’s descriptions
of what had been done to the deceased.
In particular, he said he had seen D3 and PW2 hitting the deceased with
water pipes and that he and D3 had dripped molten plastic onto the deceased’s
legs from straws and a plastic bottle.
He also described a severe beating which D1 had given to the deceased
when he had hit her over the head with an iron pipe.
D1, he said, was in charge and was the
person responsible for the most savage assaults on the deceased. He said that D3 was on one occasion “crazy”
and had beaten the deceased quite badly.
D2 said that he only stayed at the flat two
or three days each week, making out that his role had been minimal. In particular, he had neither been at the
flat when the deceased died nor present at the assaults shortly before her
death.
Similarly, D3’s evidence was largely
consistent with the answers he had given in earlier interviews. In these, he had sought to distance himself
from the most brutal assaults on the deceased.
He admitted instructing PW2 to slap the deceased and telling her to do
so again when she did not hit the deceased hard enough the first time. He also admitted that he, with D1 and D2, had
“worked over” the deceased soon after her arrival at the Granville Road flat to
teach her a lesson for not repaying loan monies. He described how the deceased was later
“worked over” again because she had stolen some ‘ice’. On occasions, D3 said he had kicked the
deceased. He denied using any weapon to
strike the deceased. He said that when
he and D2 had dripped molten plastic followed by chilli oil onto the deceased,
this was done for “fun”. His assaults on
the deceased were either to have fun or because he was angry.
D3 said the deceased was beaten up two or
three days after she had been taken to the flat for stealing ‘ice’ and,
contrary to a clear admission in his interview, not on the night before her
death. He said that after the death, he
had been responsible for sewing the deceased’s skull inside a doll.
Grounds of appeal
(1)
Causation
We have already referred to the
Respondent’s concerns, expressed by Mr Saw in a letter dated 24 January 2002,
prior to the Applicants obtaining representation in these proceedings on legal
aid.
The first of Mr Saw’s concerns was
concentrated on the directions which the judge gave on causation. Mr Saw, in the light of a post-mortem which
had failed to identify the cause of death, wrote that as causation was one of
the principal issues for the jury to determine, there were passages in the
summing up which gave rise to a reasonably arguable ground of appeal that “if
there was a possibility that the deceased died of an overdose of drugs then the
prosecution could not establish that it was the conduct of the Applicants which
caused her death”. This theme was
developed by Mr Frederic Whitehouse who did not appear in the court below. He submitted, in the first of three
substantive grounds of appeal, that there was insufficient evidence to show
that any of the Applicants, including D1, had committed an act which could
render them guilty of manslaughter when the evidence which the jury had heard
left open an equally compelling inference that the deceased had died from an
overdose of ‘ice’. In this context, the
judge had, he submitted, taking up the precise point raised by Mr Saw, erred in
his directions on causation by directing the jury that they could convict of
manslaughter if the injuries received by the deceased were a “significant cause
of death”.
This ground of appeal was also advanced,
using different phraseology, by Mr Andrew Raffell on D3’s behalf in the third
of his grounds.
In essence, counsel were saying that the
judge had unnecessarily asked the jury to decide whether the assaults were a
significant cause of death when the true issue was whether or not it had been
proved that the assaults were the cause of death. It was suggested that the jury may have been
confused as to what it was they had to decide and, in particular, about what
they should do if they found that a drug overdose had caused death. In the result, it was submitted that the jury
may have thought that they could convict of manslaughter so long as the
injuries were ‘significant’.
The passages in the summing up, giving rise
to this ground of appeal, are as follows:
“Please remember, members of the jury, that the defence have
suggested that this is a possible cause of death, that she died of a drugs
overdose. They do not have to prove that
she in fact did die of a drugs overdose.
They only have to suggest it, and you should consider it.
Now, with causation, members of the jury, I
have a handout for you. It is a question
of fact and degree in each case for the jury to decide, having regard to the
gravity of the supervening event. The
supervening event in this case, members of the jury, is of course the fact that
(the deceased) was addicted to drugs and she was consuming drugs, and
apparently consuming drugs the night before she died. Having regard to the gravity of the
supervening event, it is a question of fact and degree in each case for the
jury to decide whether injuries inflicted by the defendants were a significant
cause of death.
The onus on the prosecution is to make you
sure that the injuries inflicted by the defendants were a significant cause of
death. However, the prosecution has no
burden of establishing that any supervening event was not a significant cause
of death. So long as the prosecution
proves that the injuries inflicted by the defendants were at least a
significant, if not the only, cause of death, that will be sufficient to prove
the connection between injury and death.
‘Significant’ cause of death means a contribution made to the death
which is more than negligible. There is
no burden on the defendants to establish the drugs overdose. However, if the jury thinks that it is or may
be possible that the deceased died from a drugs overdose, it is a factor to be
taken into account by the jury in deciding whether the prosecution has established
that, notwithstanding this possibility, the injuries inflicted by the
defendants had significantly contributed to the death of the deceased. Provided the jury are sure that the injuries
the defendants inflicted contributed significantly to the death, it does not
matter whether the drugs overdose, or any other matter may have also
contributed significantly to the death.
The prosecution submits to you that they
have proved beyond a reasonable doubt that the injuries inflicted by the
defendants on the deceased contributed significantly to her death. They say that it has been proved beyond a
reasonable doubt that the deceased suffered injuries as a result of the
assaults. They rely on the evidence of
PW2, Ah Fong. The prosecution asks you
to accept (PW2’s) evidence and they say that if you are sure of the injuries
caused to the deceased, there is but one reasonable inference to draw from them
and that is the death of the deceased was caused by the defendants when they
committed the assaults on the deceased.
The defendants, on the other hand, say that
that is one inference you might draw, but that is not the only reasonable
inference to draw. They say that the
evidence is equally capable of leading to an inference which is consistent with
innocence on the part of the defendants and that inference is, or may be, that
the deceased died or may have died of a drugs overdose ….
So members of the jury, on the question of
causation, if you are not satisfied beyond a reasonable doubt that the
prosecution has proved the causation, namely that (the deceased) died as a
result of the injuries which she sustained as a result of the assaults upon her
by the defendants, then you must find the defendants not guilty of murder and
manslaughter.” (Appeal bundle pp. 23-25)
We do not know why the judge chose to
introduce this complication when neither the defence nor the prosecution had
invited him to do so and when the speeches of counsel had mirrored the way
their cases had been presented throughout the trial without reference to a
combination of factors leading to death.
Throughout the trial, it was said that the death was either the result
of the deceased’s maltreatment or an overdose of drugs.
Furthermore, we understood from Mr Saw that
these directions, which were reinforced by a so-called ‘handout’, were not, so
far as both trial prosecuting counsel could recall, ever considered by the
judge with counsel before the summing up began.
We wish to emphasise that judges should, particularly in complex cases
such as this, identify issues which it would be prudent to canvass with counsel
before the summing up. To take two
common examples, such matters might include whether to leave a particular issue
to the jury which may be thought to be controversial, or a discussion as to how
it is intended to direct the jury on a legal topic of some difficulty. When such questions are canvassed, it is
generally important that this is done prior to counsel’s speeches so that
counsel will know how the judge proposes to approach those issues and so that
they will have the opportunity to comment on them should they see fit to do so.
It was said in R v Whitefield [1984] 79 Cr App R 36 at 40 to which we shall
later return in another context:
“It is often convenient before counsel address the jury for the judge
to hear legal argument in the absence of the jury, and to indicate to counsel
the way in which he will direct the jury upon the law. But this is better done at the conclusion of
the case for the defence when all the evidence has been led.” (Emphasis added)
We were also surprised by the judge’s
assumption in these passages that the deceased had in fact consumed drugs on
the night before she died. The
prosecution did not accept that this was so and PW2 had specifically said that
she did not see the deceased consuming drugs.
This was a strongly contested issue which was for the jury to
decide. Therefore, we would respectfully
suggest that what the judge ought first to have done was to have directed the
jury that this issue was a question of fact for them to resolve at the outset
and then to have pointed out the factors which were said to support a case of
‘overdose’ and those which contradicted it.
There was much, as Mr Saw was easily able
to demonstrate, which suggested that the possibility that the deceased had
fatally overdosed on ‘ice’ shortly before her death was an afterthought
introduced by the defence to cloud an otherwise reasonably straightforward case
of homicide, at least so far as D1 and D3 were concerned. We shall deal later with the position of D2
whose case was in a somewhat different category.
It may be, of course, that the judge’s
reference to a ‘supervening event’ and to it being a ‘question of fact and
degree in each case’, was intended to say no more than that the evidence showed
prolonged and serious assaults and that the suggested consumption of drugs was
a supervening event in the literal sense.
In other words, the judge may have simply been saying that the deceased
had consumed drugs after continual assaults and that it was not a matter of
importance to the jury’s determination of the cause of death, so long as the
jury were sure that the assaults were a significant cause of death and no
matter to what extent, if indeed any at all, the drugs, if consumed, may have
weakened her further or advanced her death.
If that is what the judge intended to say then, as a matter of law, what
he said was accurate.
The problem however is twofold. Firstly, what was the jury to make of these
passages in the absence of evidence which addressed the question which the
judge chose to raise? Putting this another
way, if the jury thought that there was an overdose which had contributed to
death, on what material could they determine whether, nonetheless, the deceased
died as the result of the assaults upon her?
The judge had posed a question for their consideration which was never
raised with the pathologist, rendering it unanswerable unless the jury resorted
to speculation.
Secondly, we have been left unclear as to
the meaning behind the sentence: “…. if the jury thinks that it is or may be
possible that the deceased died from a drug overdose, it is a factor to be
taken into account by the jury in deciding whether the prosecution has
established that notwithstanding this possibility, the injuries inflicted by
the defendants had significantly contributed to the death of the
deceased.” Mr Saw was unable to offer a
possible meaning to this sentence, and it is one which we regret to say appears
to make no sense in the present context.
We feel bound to categorise this as a misdirection amounting to a
material irregularity. On a central
issue of considerable importance, this was a confusing direction which standing
alone seems to say that even if the deceased died from an overdose, the
Applicants could still be guilty. On the
facts of this case, that could not be accurate.
Indeed, given what the judge said time and again in the remainder of his
summing up, to which we shall shortly turn, it cannot be what he intended to
say.
To be set against the apparent problems
posed by these particular directions there were three redeeming features which
were plainly before the jury. Firstly,
nobody had presented the case, at any stage, on a footing other than that the
cause of death was either assault injuries on the one hand, or a drug overdose
on the other. Secondly, the rest of the
summing up was infused with clear and repeated directions that if the deceased
may have died of an overdose of ‘ice’ then neither murder nor manslaughter was
proved or, looked at another way, that guilt could not be proved unless the
jury was sure that the deceased had died as a result of injuries inflicted by
the Applicants. Thirdly, the
overwhelming weight of the evidence was that death had resulted not from drugs
but from the maltreatment to which the deceased had been subjected.
Towards the close of submissions on these
applications, Mr Raffell, to whom we are indebted for his sensible and measured
arguments, was asked upon what basis this jury, following the directions given
by the judge including those which have been identified as unnecessary or
erroneous, could have convicted the Applicants as they did, unless they were
indeed sure that the death of the deceased was caused by the assaults. That was a question which he found difficult
to answer and we can readily see why this should be so. Confusing though the criticised passages
were, and unnecessary though the introduction of ‘significant cause’ was, we
are satisfied that the jury could not realistically have been misled into
thinking that although the deceased died as a result of an overdose of drugs,
nonetheless the Applicants could be found guilty of manslaughter.
The jury had heard closing speeches which
gave to them a choice between two causes of death. There was no suggestion as we have said
already, either from the defence or from the prosecution, that the two causes
may have combined to cause death.
Prosecuting counsel’s stance was that the suggestion of drug overdose
was a red herring, and a recent invention, but that “if it was a drug overdose,
then these men were plainly not responsible for her death” (Appeal bundle p. 2169).
So, also, when the judge addressed the jury
both at the outset of his summing up and in the later stages of the summing up,
he clearly directed them they could not find the Applicants guilty unless it
had been proved beyond a reasonable doubt that the deceased had died as a
result of the assaults:
“What is in dispute is what did she die of? Did she die, as the prosecution says, of
injuries sustained as a result of the series of assaults inflicted upon her by
the three defendants? Or did she die of a drug overdose as suggested by the
defence?
Now in the course of my summing up, members
of the jury, I will tell you that the cause of death – what we call causation –
is very important because if you find that the prosecution has not proved
beyond a reasonable doubt that (the deceased) did die of the injuries sustained
as a result of the series of assaults, if you find that that is not proved by
the prosecution, that means that on the 1st count you must find the defendants
not guilty of both murder and manslaughter. (Emphasis added) (Appeal bundle p.
2)
Here, we can pause to say that nothing
could have been more clear. Had the
issue been left as well defined as that, the ground that has taken up most of
the energies of counsel and this court would not have been raised.
The judge continued a little later to
identify the issue as a choice when he reminded the jury that the prosecutor
had invited them to infer “that the injuries were caused by the assaults and
that (the deceased) died as a result of those injuries” whereas the defence
“ask you to draw the inference …. that (the deceased) died not from any
injuries sustained as a result of the assaults but of a drug overdose”. (Appeal bundle pp. 10-11)
In directing the jury as to the ingredients
of the offence of murder he told them, in one of the several sheets of paper
distributed to the jury in the course of the summing up, that they could not
convict unless sure that first the defendant “committed an act or acts which
caused the deceased’s death”. So too, in
a separate ‘handout’ entitled “Manslaughter by reason of lack of intent”, the
jury were told in terms that the prosecution had to prove that the defendant
whose case they were considering had committed an act or acts which caused the
death.
Later, when the judge turned to causation
in further detail, he said:
“The defendants have each admitted that they had at least used their
hands to assault the deceased. They
have, however, said or suggested that the deceased did not die as a result of
the assaults, and they have suggested that the deceased died of a drug
overdose. Now, that is the matter of
causation which I mentioned to you earlier on.
And with causation, members of the jury, if you find that causation has
not been proved by the prosecution beyond a reasonable doubt, that means that
you should find the defendants not guilty of murder and manslaughter.” (Appeal bundle p. 18)
After this, the judge gave the jury a
definition of manslaughter which is not criticised. He pointed out that it was necessary for the
prosecution to prove that:
“…. the defendant committed an act or acts which caused the deceased’s
death. Which is why I said to you that
if you find that causation has not been proved then you should find the
defendants not guilty of murder and manslaughter.” (Appeal bundle p. 19)
Later, he continued:
“So members of the jury, on the question of causation, if you are not
satisfied beyond a reasonable doubt that the prosecution has proved the causation,
namely that (the deceased) died as a result of the injuries which she sustained
as a result of the assaults upon her by the defendants, then you must find the
defendants not guilty of murder and manslaughter.” (Appeal bundle p. 25)
The judge also addressed the jury about
direct and circumstantial evidence saying that there had not been direct
evidence whether the injuries inflicted by the Applicants “in fact led to the
death of (the deceased)” and, again, that there was no direct evidence “which
can prove the deceased died as a result of injuries sustained as the result of
the series of assaults”. (Appeal bundle
p. 28)
When advising the jury on the law of joint
enterprise, the judge said that it did not matter which Applicant “had
inflicted the injuries which the jury may find were sustained by (the deceased)
and which caused her death”. (Appeal
bundle pp. 30-31)
Later, the judge dealt with how D1 would
stand if the jury found that D1 had supplied the ‘ice’ to the deceased. He directed the jury that this would not have
“caused” her to have a drug overdose. He
then continued:
“…. so if you are not satisfied beyond a reasonable doubt that (the
deceased) died as a result of the assaults, and you think that it is possible
that she died of a drugs overdose, then just because (D1) supplied her with the
‘ice’, it does not mean that he caused her death, so you should disregard that
particular fact when considering causation.
I mention that because Mr Polson (for D2),
in his address to you, had said if (the deceased) died of a drugs overdose,
then D1 is responsible. Well, that is
not legally correct, members of the jury.
If she died of a drugs overdose, nobody is responsible, not even
D1.” (Emphasis added) (Appeal bundle p. 39)
Towards the end of the summing up, the
judge provided a further ‘handout’ headed: “Questions you will need to ask
yourselves on the murder count”. The
first question posed was:
“Are you sure that a particular defendant committed the act or acts
which caused the deceased’s death?”
Turning next to the weight of the evidence,
it all pointed one way. The whole of the
defence case on the issue of overdose found its origin in a statement made by
PW2 to the police that on the day before the deceased’s death she saw the
deceased who “looked painful, like a junky tortured by the urge” (Appeal bundle
p. 1613). This was not, of course, so
much a description of someone who had overdosed on drugs as a portrayal of
someone suffering the symptoms of withdrawal.
Nevertheless, the pathologist was able to say that some of the symptoms
which PW2 described were consistent with a drug overdose, although, at the same
time, the pathologist was not saying that these symptoms were inconsistent with
the behaviour of someone who had been battered and gravely injured by physical
assaults. On the contrary, he explained
that if she had been kicked and assaulted all over her body, for which there
was overwhelming evidence in support, she would have:
“multiple injuries to her soft tissue and that of course would lead
to a great deal of pain, not to mention emotional suffering, fear and anxiety,
and all this could explain her wriggling and this sort of movement of her
body. Secondly, if she was assaulted all
over the body this might have caused injuries to her chest wall. The injury to her chest wall might have
caused, first of all, fracture of ribs and …. damage to the lung tissue and ….
bleeding …. into the chest cavity surrounding the lung. All these three factors …. might have
impaired the breathing capacity of an individual, …. causing difficulty in
breathing.” (Appeal bundle p. 1724)
We have borne in mind also that there was
very strong evidence that the deceased had been subjected to serious assaults
not only on a regular basis during the many days of her captivity but also on
more than one occasion on the day before her death. Most importantly, this included an occasion
immediately before the deceased was seen in the condition described by PW2 upon
which the defence relied to suggest that she had overdosed on ‘ice’. The effect of PW2’s evidence, which from the
verdicts it is plain was preferred to that given by the Applicants, was that in
the early hours of the morning, after she had seen the deceased lying prone and
motionless on the toilet floor, , she saw D1 using a water pipe to hit her on
her chest. Then, much later in the day,
before PW2 walked into Room 3 and saw the deceased apparently picking something
off the floor, she had heard banging noises of the kind she had heard
before. When she was asked in what
connection she had previously heard such sounds, she said they were when the
deceased was being assaulted.
It is also to be noted that when PW2 then
went into Room 3 to investigate, there were no symptoms at all of
overdose. This was said to have been
five or ten minutes before the symptoms upon which the defence relied for their
case of ‘overdose’ were observed. During
that five or ten minute period, PW2 heard more banging noises which were again
consistent with the noises of assaults on the deceased. It was only after this last stage that the
deceased was seen in acute pain and with heavy breathing. No doubt these were
symptoms consistent with an overdose but they were obviously not inconsistent
with a violent series of beatings at the hands of D1 and D3 both of whom were
present in the flat at the time.
This chronology of events and the
descriptions given by PW2 ending with the symptoms described by PW2,
realistically seem only capable of reflecting the results of fatal injuries
rather than an extremely sudden collapse from an overdose of drugs. When the deceased was seen earlier in the day
lying helplessly on the toilet floor in a semi-conscious state, she
self-evidently, given her conduct later in the day, had not found herself in
that state as a result of drugs. No one
suggested that she had overdosed then and it can only follow that her poor
condition later was again as a result of assaults upon her. Furthermore, the deceased was not seen by PW2
to have consumed drugs before her ultimate collapse. PW2 could not say what it was that the
deceased had picked off the floor and she was clear that she did not see her
consume what she had picked up.
We have not overlooked, in reaching our
conclusions, the account given by D2 that when he returned to the flat after
the deceased’s death, he saw blood in the deceased’s ears as well as in her
nose. As to the significance of this,
the pathologist was quite clear. He said
it was not usual to find bleeding in the ears in cases where there had been drug
overdose. Instead, the likely cause for
bleeding in the ear was localised trauma such as a blow, kick, or punch to the
ear, or a rupture of the ear drum from a heavy slap to the face.
We have observed also that PW2, who had
lived in this drug-taking environment for at least four weeks, said in evidence
that when the deceased died, it did not even occur to her that the deceased had
overdosed. In the same context, the
reactions of the Applicants at the time of their arrest are each remarkable for
the absence of any suggestion whatsoever of the cause of death arising from a
drug overdose. D2 and D3 accepted, for
their part, that the deceased had died as a result of the assaults upon her. This point, which the prosecutor emphasised
in his closing speech, is highly significant.
D2 spoke in his first interview in May 1999 about having told D1, who
had beaten the deceased “beyond the limit and couldn’t stop himself”, not to
beat her anymore. He also said to D1
“something wrong will happen if you keep on beating her” and that she would be
beaten to death. In his second
interview, he said that the deceased had been badly hit and was injured on her
abdomen and chest. He described an
occasion when, to his knowledge, D3 had stood on a chair and jumped down to
kick her. He spoke also of how the
deceased’s head had been beaten with a pole and how, on another occasion, she
was “seriously injured”. D2 said at one
stage that D1 had told him that the deceased had died of internal injuries.
When D3 was arrested nearly a year after
these events, having earlier fled from the jurisdiction, he told the police
that the deceased had unintentionally been beaten to death by the exertion of
too much force. He described various
assaults on the deceased. More
importantly, he said that the beating on the day before her death was because
she had stolen ‘ice’. She was beaten all
over with fists and feet after which she was: “lying down there …. like she
fainted. We thought she was feigning
death” but she was found dead the following morning.
There was no suggestion by any of those who
were in the best position to have known what had happened that the deceased may
have died for any other reason than the assaults upon her.
Whilst dealing with the reactions of the
Applicants on their arrest, there was also evidence of their reactions to the
death of the deceased. PW2 was asked
what D1’s reaction was after it had been discovered that the deceased had
died. Her evidence was that:
“…. He said something like
‘Just a few kicks could kill somebody’ …. Also [D3] said ‘I’m not sure if just
those few kicks that cause her death’.”
(Appeal bundle p. 1532)
It was later put to PW2 by D1’s counsel
that after the death had been discovered, D1 had said to D3: “I had told you
not to kick her head”. PW2 accepted that
this had been said. PW2’s answers
provided strong evidence, as against D1 and D3, that the deceased had been
subjected to a head-kicking assault shortly before her death and that this is
what they thought was the cause of her death.
It was submitted by counsel in these
proceedings that none of the matters upon which we have touched excluded the
possibility of an overdose of drugs. We
take the view, as we believe the jury must inevitably have done, that when the
evidence is looked at realistically and as a whole, this possibility was indeed
excluded.
We are satisfied that it is unrealistic in
the circumstances of this case to say that anything in the judge’s summing up
might have caused the jury to convict of manslaughter unless they were sure
that the assaults caused death.
This being so, and fortified as we are by
the weight of the evidence in the case, despite the unsatisfactory nature of
the directions on the issue of causation which amounted to a material
irregularity, we consider that no miscarriage of justice has actually
occurred. Accordingly, on this aspect of
the application, we propose to utilise the proviso to section 83 of the
Criminal Procedure Ordinance, Cap. 221.
(2)
The introduction of prejudicial evidence
In a ground which was not supported by
counsel for the other Applicants, it was argued on D1’s behalf that highly
prejudicial evidence, which should have been ruled inadmissible, was introduced
at trial against D1. This complaint
related in the first place to the evidence which showed that all the Applicants
were triad members and that D1 held a more senior rank to the others. The second category of evidence concerned the
introduction of evidence involving some of the macabre details about the
dismemberment of the corpse.
Dealing firstly with the evidence about the
triad background of each Applicant, the proposition that this should not have
been admitted was unsustainable. It
seems, from what Mr Raffell was helpfully able to tell us, that it was made
abundantly plain, when D1’s counsel objected to the introduction of this
evidence at trial, that D2 and D3 would be introducing such evidence in any
event. This left D1’s counsel with what
amounted to a token objection.
Mr Saw accurately summarised the situation
when he said that the whole case was redolent with triad overtones. This background, as he pointed out, was
integral to the cases presented on behalf of D2 and D3 in order to explain how
they came to be involved and how the deceased came to be at the flat. Furthermore, the consumption of ‘ice’ at the
flat was an important issue which all the Applicants were anxious to establish
and quite obviously, on this aspect of the case, D1’s role as a consumer, if
not also a trafficker, was bound to emerge.
Equally, D1’s prior association with the deceased who had worked as a
prostitute in the same establishment where he worked as a cashier was certain
to be adduced in evidence.
It is not in the least surprising that
counsel for the defence of D2 and D3 had no objection at trial to character
evidence being led. There were valid
tactical reasons for this. In what was
to some extent a ‘cut-throat’ defence, D1 easily emerged as the most sinister
amongst the Applicants who was likely to have been their leader. There is no merit in the argument that this
evidence should not have been admitted.
So far as the evidence about the
dismemberment of the body is concerned, Mr Whitehouse was able to point to an
objection taken to the introduction of this evidence at trial by Mr Raffell on
the basis that it was more prejudicial than probative. Plainly this evidence had some relevance as
Mr Raffell had accepted. His solution at
trial had been that the jury could be provided with a series of facts admitted
under section 65C of the Criminal Procedure Ordinance in order not only to
spare the jury and the witness (PW2) the awful details of how the body was
dismembered and how parts of it had been cooked, but also to prevent the
prejudice which was likely to be felt towards the Applicants once it was
realised what they had done.
In our judgment, the prosecution was
entitled to lead this evidence for a variety of reasons. Leaving aside that this was evidence of a
continuing series of events, it explained the absence of a body and the
pathologist’s inability to test successfully for drugs in the light of evidence
that parts of the body had been cooked.
It also revealed who was responsible for the disposal of the corpse. In this context, the jury were entitled to
consider whether this hideous task was undertaken because of an anxiety on the
part of those most closely concerned to cover up the atrocious treatment to
which the deceased had been subjected for so long. The evidence was relevant also to support the
prosecution’s allegation of a killing in which the Applicants had all played a
role rather than a death which had merely occurred by reason of an accidental
overdose of drugs.
We have said already that Mr Saw had
accurately and responsibly highlighted the very aspects of the case which
required close scrutiny on these applications for leave to appeal, and that
when he did this none of the Applicants had the benefit of legal
representation. All of the matters he
raised have been adopted by counsel now instructed on behalf of the Applicants. The introduction of prejudicial material was
not amongst them. With this in mind, it
was all the more surprising that when Mr Whitehouse proceeded to argue that D1
had been prejudiced by some of the photographs which were put before the jury, he
complained that the “authorities” had effectively prevented him for six months
from seeing what they contained.
The “authorities”, to use Mr Whitehouse’s
expression, had done nothing of the kind.
During a short enquiry, it became apparent that Mr Whitehouse’s
criticism as to the non-disclosure of the trial photographs was aimed at
counsel appearing for the Respondent although they were wholly blameless. It emerged that the solicitors who were
instructed by the Director of Legal Aid had sensibly and properly written a few
letters to the Legal Aid Department to obtain the photographs produced at trial
but the Department was unable to supply them.
Mr Whitehouse, for his part, caused no approach to be made to the Department
of Justice until about a week before these proceedings commenced. Furthermore, Mr Whitehouse had made no
attempt to look at the copies of the photographs held by the court in order to
decide whether they could be utilised in support of this ground of appeal.
As it turned out, this was a point which
was devoid of any merit and Mr Whitehouse’s thinly veiled criticism directed at
the Respondent’s counsel was irresponsible.
When counsel sees fit to make an allegation which is likely to reflect
on the integrity of other counsel, even when done inferentially, as Mr
Whitehouse did in these proceedings, without actually naming counsel, this
should only be done after the most careful consideration based upon a proper
investigation of all the circumstances.
Leading and junior counsel for the Respondent in these applications have
done everything in their power to act with fairness and openness towards the
Applicants, as clearly evidenced by the fact that they themselves drew matters
of concern to the court’s attention, and the poorly judged and wholly
inappropriate criticism which was made of them was nothing short of a
disgrace. It is a matter of regret that,
when given the opportunity to apologise, Mr Whitehouse offered such a qualified
reply that it amounted to no apology at all.
The judge, rightly in our view, allowed the
evidence to be admitted.
Whilst it was not the subject of specific
complaint in the grounds of appeal, we should add that we had been somewhat
disturbed by a number of highly emotive statements, based upon the evidence to
which we have just referred, which were made by the prosecutor at trial both in
cross-examination and in his final speech.
All that we perhaps need to say is that this was an emotionally charged
trial in which such comments were more than usually out of place.
This ground fails.
(3) Burden
of proof
In his last substantive ground, Mr
Whitehouse complained that the judge, following the directions which are
invariably given to a jury on the burden and standard of proof, had later gone
on to give other directions which effectively reversed the burden of
proof. His complaint focused on the
judge’s comment that if any defendant’s evidence managed to create a reasonable
doubt in the minds of the jury about whether a particular defendant was guilty,
they should give the benefit of that doubt to the defendant in question.
There is no substance to this ground. Throughout the summing up, the jury had been
told in the clearest terms that the burden of proof rested on the prosecution
and that there was no burden on the Applicants to prove anything. When the comment which is criticised was
made, the judge was merely stating that a reasonable doubt may arise from a
number of possible sources and that one of them might come from the evidence
given by a defendant.
There was in D1’s case no basis for saying
that his conviction for manslaughter was unsafe or unsatisfactory.
(4) Joint enterprise
When Mr Saw informed the court of his
concerns about the directions given to the jury, he said, with regard to joint
enterprise, that whilst these may strictly have been correct in law, they might
arguably have been insufficiently directed towards specific incidents for the
purposes of enabling the jury to establish the precise responsibilities of the
respective Applicants. This perceptive
comment had particular significance to D2, and we shall turn shortly to the
generalised directions which were given to the jury on this topic to see why
that is so.
Mr Saw has conceded throughout that whilst
the evidence was, in parts, far from clear as to D2’s whereabouts in the last
days of the deceased’s life, the jury were at least entitled reasonably to
conclude that D2 was absent from the Granville Road flat on the day before she
died and for a period which was perhaps rather longer.
Of particular significance to this aspect
of the case was the evidence given by PW2 who made no reference to D2 being
present at the flat when she saw D1 assaulting the deceased with a water pipe
or when she heard the sounds of her being assaulted during the time shortly
before her death. The fact that the
evidence as to D2’s whereabouts was unclear did not, as Mr Saw acknowledged,
relieve the judge of the task of providing a specific direction to cover D2’s
involvement in an alleged joint enterprise killing in the event that the jury
concluded that D2 was absent from the flat when the fatal blows may have been
struck.
This theme was taken up to some extent by
Mr Richard Donald, on behalf of D2, who did not appear in the court below. He submitted that the judge had failed
adequately to explain to the jury that it was important for them to determine
“whether or not (the deceased) had been assaulted the night before her death,
and the nature and degree of that assault, this assault occurring in the
absence of (D2)”. Mr Donald also
submitted that D2’s absence on the night before the deceased died when the
“fatal beating” may have occurred, was a “significant event calling for some
emphasis”. He accepted that while D2 had
taken part in a large number of the earlier assaults on the deceased, the
evidence showed that later on D1 and D3 had plainly subjected the deceased to
one or more serious assaults, without any participation from D2, and that these
might well have been considered by the jury to have caused her death.
Helpfully, in this context, Mr Saw provided
us with a formula for the directions which he suggested should have been
given. These seem to be derived from
what was said in R v Rook [1993] 97 Cr App R 327 at 331, adopting Chan Wing-siu
and others v R [1985] 80 Cr App. R 117.
In summary, the suggested formula stated that if the jury concluded that
D2 was absent during an assault on the deceased on or about the night before
her death and that she died as a consequence, it then became a matter for them
to decide whether, nevertheless, D2 was liable as a participant in an ongoing
joint enterprise to keep the deceased imprisoned in the flat and to assault her
there. If so, they should decide whether
D2 reasonably foresaw that there was a real and substantial risk that one or
both of the others would treat the deceased in the way that they had found had
caused her death.
It was, after all, Mr Saw submitted, just
another beating to add to the many others she had suffered beforehand and it
must have been almost a foregone conclusion that the others would assault the
deceased.
The question we have had to ask ourselves,
therefore, is whether the directions given by the judge on joint enterprise
sufficiently dealt with D2’s criminal liability if the deceased, in his
absence, received a beating at the hands of the others which turned out to be
fatal. The directions given by the judge
were in these terms:
“The
prosecution’s case, members of the jury, is that this was a joint enterprise
involving all three defendants and this was a joint enterprise which included
an agreement to abduct (the deceased) to the flat and keep her as a prisoner in
the flat, and while she was kept as a prisoner, to murder her, which means
either to kill her or to cause her grievous bodily harm.
They say that the joint enterprise started
with the bringing of (the deceased) back to the flat and did not end until all
the body parts of (the deceased’s) corpse were disposed of, and so they say
this was a continuing joint enterprise which involved all three defendants.
Now, what is a joint enterprise, members of
the jury? I have a hand-out for you on
joint enterprise.
The prosecution’s case is that each
defendant committed these offences together with the other two defendants. Where a criminal offence is committed by two
or more persons, each of them may play a different part, but if they are acting
together as part of a joint plan or agreement to commit it, they are each
guilty.
The words ‘plan’ and ‘agreement’ do not
mean that there has to be any formality about it. An agreement to commit an offence may arise
on the spur of the moment. Nothing
need be said at all. It can be made with a nod and a wink or a
knowing look, or it can be inferred from the behaviour of the parties.
The essence of joint responsibility for a
criminal offence is that each defendant shares a common intention to commit the
offence and plays his part in it, however great or small, so as to achieve that
aim. In those circumstances, it does not
matter which of the defendants had inflicted the injuries which the jury may
find were sustained by (the deceased) and which caused her death.
Your approach to the case should therefore
be as follows. On the murder count, if,
looking at the case of each defendant, you are sure that he did an act, or
acts, as part of a joint plan or agreement with any or both of the other two
defendants to kill or to cause really serious bodily harm, he is guilty.
Put simply, the question for you is were
they in it together. In respect of the
false imprisonment against (D2), if you are sure that he did an act or acts as
part of a joint plan or agreement, with any other person, to unlawfully and
injuriously imprison (the deceased) and to detain her against her will, he is
guilty. The question there is, again,
were they in it together.
It is the law that when two or more persons
embark on a joint enterprise, each is liable for the acts done in pursuance of
that joint enterprise. That includes
liability for unusual consequences if they arise from the execution of the
agreed joint enterprise. However, if a
participant in the venture goes beyond what has been expressly, or tacitly,
impliedly, agreed as part of the joint enterprise, the other participant, or
participants, are not liable for the consequences of the unauthorised act.
It is for the jury to decide whether the
thing which was done was part of the joint enterprise or whether it was, or may
have been, an unauthorised act and therefore outside the scope of the joint
enterprise.
It suffices to found a conviction for
murder for any defendant to have realised that, in the course of the joint
enterprise, the other defendant, or defendants, might kill with intent to do so
or with intent to cause grievous bodily harm.
To realise something might happen was to contemplate it as a real and
not a fanciful possibility. If the
realisation is of some harm, not really serious bodily harm, then this would
found a conviction for manslaughter for the defendant so realising.
If a defendant realises, without agreeing
to such conduct being used, that the other defendant or defendants may kill or
intentionally inflict serious injury but, nevertheless, continues to
participate with the other defendant or defendants in the venture, that will
amount to a sufficient mental element for that defendant to be guilty of murder
if the other defendant or defendants with the requisite intent of killing or
causing serious bodily harm kills in the course of the venture.
That defendant has, in those circumstances,
lent himself to the enterprise and, by doing so, he has given assistance and
encouragement to the other defendant or defendants in carrying out an
enterprise which he realises may involve murder.
If the realisation is of some harm, not
really serious harm, then this continued participation would found a conviction
for manslaughter for that defendant.
Where one party departed completely from
the concerted action of a common design by forming an intent to kill involving
the use of a weapon and acted in a way no party to the common design could
contemplate, the other parties are not guilty, either of murder or
manslaughter.
Suggested questions that you may wish to
ask yourselves. One, did a defendant
know what the other defendant or defendants had done to the deceased?
Two, did a defendant by his own actions
cause the death of the deceased?
Three, when that defendant committed the
assaults that he himself did, which caused the death of the deceased, did he
intend to kill the deceased or to cause her serious bodily harm?
Four, was there a joint enterprise between
all three defendants or between any two of the defendants and, if so, what was
the joint enterprise? Was it simply to
falsely imprison the deceased, or was it to imprison her and cause her serious
bodily harm, in which case it can be murder, or was it to imprison her and
cause her some harm less than serious bodily harm, in which case it can be
manslaughter.
Five, if the joint enterprise was simply to
falsely imprison the deceased, did a particular defendant realise that, in the
course of carrying out that joint enterprise, the other defendant or defendants
might kill the deceased or cause her serious bodily harm?
If a particular defendant realises that
death or serious bodily harm was a virtual certainty and continues to
participate in the joint venture to falsely imprison the deceased, he may be guilty
of murder if the realisation is that the other defendant or defendants may
cause the death of the deceased or cause her serious bodily harm, or
manslaughter, if the realisation is the other defendant or defendants may cause
the deceased some harm less than serious bodily harm.” (Appeal bundle pp.30-33)
Mr Saw rightly suggested that in the last
paragraph of these directions, the judge had come closest to dealing with D2’s
situation in the context of a joint enterprise where one of the participants had
been absent at a time when it may be that the fatal blows were struck.
The judge went on to remind the jury that
the Applicants had all admitted they had “at least assaulted (the deceased)
with their hands” and he posed the question in relation to each of them: “When
he did that, did he know what the other defendants had done to the
deceased?” Then, regarding the
cumulative effect of the assaults, the judge went on, with reference to the
numbered questions he had posed earlier, to say:
“Now, if a defendant commits an assault, or commits assaults on the
deceased which in fact cause the death of the deceased, when he committed the
assaults, did he intend to kill the deceased or to cause her serious bodily
harm?
Now, that may not be such an easy question
to answer because, even on the prosecution’s case, this was a series of
assaults the cumulative effect of which was to cause the death of the
deceased. So it’s not as if one assault
by one defendant in fact caused the deceased to die. It was cumulative over a period of time and
over a number of assaults.
So the question really is, when the
particular defendant committed the assault that he himself did, did he know
what the others had done? Did he know
that, by his own actions, he might cause the death of the deceased, and did he
intend that the deceased should be killed or be caused serious bodily harm?
If the answers to those three questions are
no, in the negative, then question number 4 may be relevant. Was there in fact a joint enterprise between
all three defendants or between any two of them and, if so, what was the joint
enterprise? Was it just to falsely
imprison, or was it to imprison and cause serious harm, or was it to imprison
and cause some harm less than serious bodily harm?
If it is number 2, imprison and cause
serious bodily harm, and that person takes part in that joint enterprise, then
he can be guilty of murder. If it is
number 3, namely a joint enterprise to imprison and cause some harm less than
serious bodily harm, and that person, that defendant, takes part in that joint
enterprise, he is a member of that joint enterprise, he takes part in it, he
does his bit in it, then he can be guilty of manslaughter.
If the joint enterprise was simply to
falsely imprison the deceased and nothing else, then the particular defendant,
when he takes part in that joint enterprise, realised that, in the course of
carrying out that joint enterprise, the other defendants might kill the
deceased or might cause her serious bodily harm, if a particular defendant
realises that death or serious bodily harm was a virtual certainty because of
the actions of the other participants and he himself continues to participate
in the joint venture to falsely imprison the deceased, he may be guilty of
murder, if he realises that the other defendants may cause the death of the
deceased or cause her serious bodily harm.
But if he only realises that the other
defendant or defendants may cause the deceased some harm less than serious
bodily harm in carrying out the joint enterprise to falsely imprison, and he
takes part in that joint enterprise, he may be guilty only of
manslaughter. So I hope that is clear,
members of the jury.” (Appeal bundle pp.
34-35)
It can readily be seen, as Mr Saw conceded
long ago when expressing his concern about these directions with specific
regard to D2, that nothing was said to the jury to indicate sufficiently how
and in what circumstances, if D2 was absent from the flat at the time of the
assaults which led to the death of the deceased, he could be convicted of
participation in her killing. Indeed,
whether he could be found guilty of manslaughter at all in these particular
circumstances is not easily answered.
No doubt one important factor which the
jury could have borne in mind when considering D2’s role in an ongoing joint
venture was that D2 admittedly returned to the flat in Granville Road after the
killing and gave assistance in dismembering the body. This important evidential feature, however,
does not cure the omission to which we have referred or the failure to direct
the jury as to D2’s foresight of consequences whilst away from the flat
himself, along the lines proposed by Mr Saw.
In this context, it is right to add that a
withdrawal by D2 from the enterprise was never, as Mr Saw observed, relied upon
as such as a defence. Furthermore, D2’s
return to the flat at a time when he was unaware of the death of the deceased
and his readiness to assist with the disposal of her corpse tended, he submitted,
to negative any suggestion that he had withdrawn from the venture. This aspect of D2’s case was also touched
upon by counsel for the prosecution at trial when he said:
“…. as you consider this joint enterprise, bear in mind …. it began on
17 March and ended with the body parts going out on the truck …. ask yourself
this: did any of these defendants withdraw from that joint enterprise ….? Did any one of them put up his hand and say,
‘That’s it, I’m out’? Not one of them ….
did that. All the men who presented
themselves for the gruesome task of chopping up her body, signalled that they
were still in that joint enterprise, they were part of it and as the evidence
discloses, they did not leave until the job had been done.” (Appeal bundle p. 2168)
In his video-recorded interviews, D2 had also
alluded to this aspect. He had spoken of
returning to Tuen Mun to stay there with his family for “two or three
nights”. When asked if he wished to
clarify anything he had said, towards the end of his third interview:
“…. after I came to know that what I did was wrong, I thought about it
carefully. By the time I got away (from
the problem) by walking away from it, really, I had already known …. I was ill
at ease and was sorry ….” (Appeal bundle
p. 688)
It is plain from this extract that D2
failed to communicate his intention to withdraw from the venture. This has for a long time been an important
factor when considering the complicity of an absent participant to a
crime. Returning once more to R v
Whitefield [1984] 79 Cr App R 36 at 39-40, Dunn LJ giving the judgment said:
“The law upon withdrawal is stated in Becerra and Cooper (1976) 62 Cr
App R 212 and Grundy [1977] Crim L R 543.
So far as material to the facts to this case, the law may be shortly
stated as follows. If a person has
counselled another to commit a crime, he may escape liability by withdrawal
before the crime is committed, but it is not sufficient that he should merely
repent or change his mind. If his
participation is confined to advice or encouragement, he must at least communicate
his change of mind to the other, and the communication must be such as ‘will
serve unequivocal notice upon the other party to the common unlawful cause that
if he proceeds upon it he does so without the aid and assistance of those who
withdraw.” (See the Canadian case of
Whitehouse [1941] 1 W.W.R. 112, 116, per Sloan JA, approved in Becerra and
Cooper (1976) 62 Cr App R 212 and Grundy [1977] Crim L R 543).
If manslaughter by joint enterprise was an
appropriate charge to bring against D2, rather than a series of substantive
offences in which D2 was shown to have been actively involved, then we have to
say, with respect, that a direction was also called for to deal with the
possibility of D2’s withdrawal from the venture. Whilst the evidence on this issue may well
have seemed to be all one way, it was nevertheless, as a possible defence open
to D2 on the basis of what he told police, for the jury to reach a decision
upon it.
The shortcomings to which we have referred
amounted to material irregularities and it is apparent that D2’s conviction for
manslaughter cannot stand. Rightly,
there were no submissions in relation to D2’s conviction on count 2 where there
was overwhelming evidence of his complicity in the false imprisonment of the
deceased.
(5) Rejection
of D3’s ‘no case’ submission
Mr Raffell advanced two grounds on behalf
of D3 with which we have yet to deal.
These are closely related and we can deal with them together. He contended, firstly, that the trial judge
had been wrong to reject a submission at the conclusion of the prosecution’s
case that D3 had no case to answer. Secondly,
he submitted that the prosecution failed to produce evidence that D3 had caused
or contributed to the deceased’s death or that he was part of a joint
enterprise which had done so.
Mr Raffell’s point on both these grounds,
leaving aside the issue of causation with which we have dealt already, was
largely concerned with the absence of direct evidence of D3’s participation in
the final assaults on the deceased just before and just after she was seen by
PW2 picking something up from the floor and putting it into some tinfoil.
We do not need to look at this aspect of
the case in any depth. Whilst there was
no evidence of D3 being seen to assault the deceased in the incidents shortly
before her death, when PW2 heard “banging” sounds of the kind which she had
come to associate with the deceased being assaulted coming from her room, nevertheless
there was some evidence for the jury’s consideration that D3 had been
involved. In one important passage in
PW2’s evidence in chief on this issue, related to a time just after the
deceased had been found dead, there was following exchange:
“Q. Now, who was with you
when you found her like this, dead?
A. I
was with (D3).
Q. Now,
what was his reaction when it was apparent that she was dead?
A. Then
he went into Room 4 to talk to (D1).
Q. Did
he say anything?
A. (D3)
said, ‘she’s dead’ …….
Q. Yes. Did he say anything about the fact that she
was dead?
A. After
that later I heard (D1) say something.
It seems that just like what (D3) told me, that he said something like,
‘Just a few kicks could kill somebody.’
Q. Who
said that?
A. (D1)
said it.
Q. Was
anything more said about kicks killing somebody?
A. Also
(D3) said, ‘Chop it into pieces and flush it down the toilet.’
Q. Before
that was anything said about kicking causing her death?
A. (D3)
did say something to me.
Q. What
did he say?
A. He
said it in a very unhappy mood. He said
to me, ‘I’m not sure if just those few kicks that cause her death’.
Q. That
was (D3). Did (D1) say anything about
kicking?
A. No.” (Appeal bundle p. 1532)
It is plain from these remarks that D3 was
closely involved in the attack on the deceased.
This becomes even more obvious from a study of his interview with the
police. In these, he admitted that on
the day before the deceased was found dead, she had stolen some ‘ice’ which was
intended for D1’s consumption. D1 scolded
her and “then we beat her again …. with fists and legs/feet as well …. (she
was) beaten all over”. He agreed that
this was a beating to parts of the body which included the head. At the end, he said, the deceased was lying
down and D3 thought she was “feigning” death.
He went on to say that he “found her dead when (he) went to the toilet
the following morning”.
There was ample evidence to go to the jury
which, if believed, revealed that D3 was directly connected with acts which
had, subject to the conclusions of the jury, caused the deceased to die.
These grounds fail.
Conclusion
Having regard to some of the grounds of
appeal which we have had to consider, we propose to grant leave to all the
Applicants to appeal. We have, in these
circumstances, treated the hearing as the appeal.
In all three appeals, as we have indicated
already, there was a material irregularity in the directions given to the jury
on causation but as no miscarriage of justice has actually occurred in the
cases of D1 and D3, we propose in their cases to apply the proviso in section
83 of the Criminal Procedure Ordinance.
As there was no merit in the other grounds raised on their behalf, their
appeals are, accordingly, dismissed.
In the appeal of D2, as we earlier stated,
there were material irregularities arising from the omissions in the directions
regarding D2 as to joint enterprise and his possible withdrawal from the joint
venture. Accordingly, D2’s conviction
for manslaughter will be quashed.
We shall in due course hear counsel on
behalf of D1 and D3 in relation to their applications for leave to appeal against
sentence when a suitable date can be found.
More immediately, we shall hear counsel for
D2 and for the Respondent with regard to whether, in his case, a re-trial
should be ordered on the charge of manslaughter under the provisions of section
83E of the Criminal Procedure Ordinance.
M. Stuart-Moore)
Vice-President (Frank Stock)
Justice of Appeal (Conrad Seagroatt)
Judge of the Court of First Instance
Mr D.G. Saw, SC, DDPP and Mr Winston Chan,
GC, of the Department of Justice, for the Respondent.
Mr Frederic C. Whitehouse, instructed by
Messrs Cheung, Chan & Chung, assigned by Director of Legal Aid, for
D1/Applicant.
Mr Richard Donald, instructed by Messrs
Simon Si & Co., assigned by Director of Legal Aid, for D2/Applicant.
Mr Andrew Raffell, instructed by Messrs
Hobson & Ma, assigned by Director of Legal Aid, for D3/Applicant.
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