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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. HAC 189 OF 2019
STATE
V
WANG QI YONG
Counsel: Ms K Semisi & Mr J Nasa for the State
Mr J Korotini for the Accused
Date of Hearing: 31 August – 1 September 2020
Date of Summing Up : 2 September 2020
SUMMING UP
[1] Lady and Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether the Accused is Guilty or Not Guilty of the charge. I will then pronounce the judgment of the Court and your opinions will carry great weight with me in deciding that judgment.
[2] In coming to your opinions you must apply the law as I explain it to you. It is my duty to direct you on the law. Those directions on the law must be followed by you.
[3] However, you decide the facts of the case. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the law as I explain it to you and decide whether your opinion is guilty or not guilty.
[4] You must come to that decision solely upon the evidence you have heard from the witnesses, which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved, through the media or some other source – you must ignore that completely. If you have read, heard or come across any media publication about the proceedings during the trial, you must ignore them completely.
[5] The law requires that the Accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately.
[6] The charge of murder is brought by the Office of the Director of Public Prosecutions. The onus of proving the charge rests on the prosecution from beginning to end. The law is that the prosecution must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. This means that before you express an opinion that the Accused is guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt about the guilt of the Accused, then you must express an opinion of not guilty. It is only when you are satisfied so that you are sure of guilt, that you may express an opinion of guilty.
[7] The Accused has chosen to give evidence. The Accused was not obliged to give evidence. He does not have to prove his innocence. He does not have to prove anything. However, he has chosen to give evidence. You must take what he has said into account when considering the issues of fact which you have to determine. It is for you to decide whether you believe the evidence of the Accused or whether it may be true. If the account given by the Accused is or may be true, then the Accused must be acquitted of the charge of murder. But even if you entirely reject the account given by the Accused, that would not relieve the prosecution of its burden of making you sure by evidence of the Accused‘s guilt in respect of the charge which you have to consider.
[8] The charge before you is that the Accused on the 13 May 2019 at Suva murdered Gao Lei (the victim). Another crime that can arise from the killing of a person is manslaughter and it is appropriate that I should explain both these crimes of murder and manslaughter to you.
[9] To prove murder, the prosecution must prove the following three ingredients beyond reasonable doubt:
[10] I will now explain these three elements to you.
[11] The first element is that the Accused engaged in a conduct. To engage in a conduct means to voluntarily do an act, that is, of one’s own free will. The prosecution alleges that the Accused engaged in an act of manual strangulation of the victim. The Accused in his evidence has said that he grabbed the neck of the victim without realizing how strong his grip was, to defend himself when the victim physically attacked him by scratching his neck and throwing punches at him.
[12] Lady and Gentlemen Assessors, a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self defence. A person carries out a conduct in self defence if and only if he believes the conduct is necessary to defend himself and the conduct is a reasonable response in the circumstances as he perceives them.
[13] If you think that the Accused was or may have been acting in self defence of himself, you must find him not guilty. He is not criminally responsible for any offence. Because the prosecution must prove the Accused’s guilt, it is for the prosecution to prove that the Accused was not acting in self defence. It is not for the Accused to establish that he was and you must consider the matter of self defence in the light of situation which the Accused believed he faced.
[14] You must first ask whether the Accused believed that it was necessary to use force to defend himself at all. If you are sure that the Accused did not believe that it was necessary to use force to defend himself, he cannot have been acting in self-defence, and you need consider this matter no further. But what if you think that the Accused did believe that it was necessary to use force to defend himself?
[15] You must then decide whether the type and amount of force the Accused used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the anticipated attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on the Accused and what he then did. If you are sure that the force the Accused used was unreasonable, then the Accused cannot have been acting in self defence; but if you think that the force the Accused used was reasonable, you must find him not guilty. Whether the Accused engaged in the act of manual strangulation of the victim in self-defence is matter for you to consider.
[16] The second element is that the conduct of the Accused caused the death of the victim. The law requires a link between the conduct and the death. Usually the conduct causes some specific injury to the victim and that particular injury causes the victim’s death. Usually the conduct causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. The prosecution alleges that the victim died of asphyxia by manual strangulation. It is for you to decide whether the conduct of the Accused caused the death of the victim.
[17] The third element is that the Accused intended to cause death or was reckless as to causing the death of the victim by his conduct. In this case the prosecution relies upon both the intention and recklessness as the fault elements of murder. The prosecution is not required to prove both fault elements. The prosecution is required to prove either one of the fault elements, that is, intention or recklessness.
[18] To prove intention to cause death by manual strangulation the prosecution must prove that the Accused meant to bring it about or was aware that death will occur in the ordinary course of events.
[19] To prove recklessness the prosecution must prove that when the Accused engaged in the act of manual strangulation of the victim, he was aware of a substantial risk that the victim will die and having regard to the circumstances known to the Accused, he was unjustified to take the risk. The question whether the Accused took a risk that is unjustifiable is one of fact for you to consider.
[20] You decide intent or knowledge by considering what the Accused did or did not do and the effect of his actions or inaction and by what he said or did not say. You should look at his actions before, at the time of and after the alleged conduct. All these things may shed light on his intention or knowledge at the critical time.
[21] If you feel sure that the Accused engaged in a conduct that caused the death of the victim, but you are not sure whether he intended to cause death or was reckless as to causing the death as I explained to you, then go on to consider whether the Accused is not guilty of murder but guilty of manslaughter. For a person to be guilty of manslaughter he must engage in a conduct that causes the death of the victim and that he either intends to cause serious harm or is reckless as to a risk that the conduct will cause serious harm to the victim.
[22] If you feel sure that the Accused engaged in a conduct that caused the death of the victim and he did so either with an intention to cause serious harm or was aware of a risk that his conduct will cause serious harm to the victim, then the Accused would be not guilty of murder but guilty of manslaughter.
[23] If you are sure that the Accused engaged in a conduct that caused the victim’s death and he did so with the intention to cause death or was reckless as to causing the death of the victim, the Accused is guilty of murder unless yoclude that this wais was or may have been a case of provocation. Provocation is not a complete defence, leading to a verdict of ‘Not guilty’. It is tial defence, reducing what would otherwise be murder&rder e lesser offence of manslaunslaughter. Because the prosecution must prove the Accused’s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and notthe Ad to establish thsh that itat it was.
[24] Provocation has a special legal meaning, and you must consider it in the following way.
[25] Firstly, you must ask yourselves whether the Accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by the deceased rather than just by his own bad temper. The Accused says he reacted by manually strangulating the deceased when she prevented him from leaving her bedroom and physically attacking him when he refused to pay her more money that she had demanded for the sexual services. If you are sure that the Accused was not provoked in that sense, the defence of provocation does not arise, and the Accused is guilty of murder.
[26] But if you conclude that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is thnything about this Accused used which may have made what was said and/or done affect him more than it might have affected other people? Finally, having regard to the actual provocation and to your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused’s age and sex (a male in his early forties), would have been provoked to lose his self-control and do as this Accused did. If you are sure that such a person would not have done so, the prosecution will have disproved provocation, and the Accused is guilty of murder. If, how you concludnclude that such a person would or might have reacted and done as the Accused did, your opinion would be ‘Not guilty of murder, but guilty of aughtaughter by reason of provocation’. That is a matter for you to consider.
[27] On the basis of these legal principles that I have explained to you, you must consider the nce in this case and decideecide whether the charge of murder has been proved by the evidence led by the prosecution.
[28] I will now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.
[29] The prosecution called seven witnesses and tendered ten exhibits. The Accused gave evidence and tendered one exhibit.
[30] The first prosecution witness was the pathologist, Dr Kalougivaki. On 17 May 2019, Dr Kalougivaki conducted a post mortem of the victim to determine the cause of death and recorded his findings in a report marked prosecution exhibit 1. The victim was 33 years of age at the time of her death. Upon external examination the doctor noted multiple bruises on the front side of the neck, pin point hemorrhages on the face and eyes and bruises of different dimensions on the left lower limb. The doctor said that the victim died of asphyxia caused by manual strangulation. He said that significant amount of force was used to cause the injuries noted on the victim’s neck.
[31] The second witness was Sgt Voi. Sgt Voi was the investigating officer in this case. He also caution interviewed the Accused and recorded his statement in writing. The Record of Interview is marked prosecution exhibit 3. The Record of Interview contains mixed statements from the Accused. He admitted killing the victim but offered justification for his conduct. His answer to question 41 reads:
Q41: Can you explain as to how did you kill this Chinese girl?
Ans: A few days ago this Chinese girl had added me to a group on social media namely WECHAT and then she informed me that she had just recently came to Fiji. Yesterday 12/05/19 she messaged me saying whether I want to come over to her or not after which she had sent some nude pictures of herself which is recorded on my mobile phone. I decided to go to her place after she had sent me her address. At about 8.00pm I caught a cab from the hotel and left for her place. After arriving there, she allowed me into the house and took me into the bedroom at the right end of the house. We both entered the room and then we started conversing and getting to know each other and then later at about 10.00pm we started having sexual intercourse. At about 11.30pm we finished having sexual intercourse and then we both went off to sleep. We woke up at about 7.00am this morning (13/05/19) and then we had a talk and just as I was getting ready to pay her before leaving, I was giving her $300.00 as per our agreement over the phone the previous night, she requested me too pay $400.00 because I came an hour early. She went and closed the door and demanded that I pay $400.00 if not she would not have let me out. She started acting aggressively towards me and telling off saying that I live in a hotel and could not afford to pay the extra $100.00. I was sitting on the bed this time and when I got up and pushed her aside and started moving towards the door, she pulled me by my t-shirt and then I held her by the neck and pushed her on the bed. She scratched me on the left side of my neck and then I held her neck with one hand first pushing it against the bed and then she started throwing punches at me and that was when I used both my hands and squeezed it tightly and pressed it against the bed until I saw a greyish substance come out of her mouth and then I let go of her neck. I then saw her breathing heavily and then stopped moving. I just sat by the bed by her and waited for the other occupants to come. I knew that I had committed a crime and even though I had the keys to the house I did not want to run away.
[32] The Accused gave a similar narration of the events later in his interview from questions 81 to 104. He said to the police that he could have left the scene but decided not to do so because it was not his intention to kill the victim.
[33] The next witness was DC Soro who recorded the Accused’s charge statement under caution and tendered the same in court. The charge statement is marked prosecution exhibit 5. In that statement the Accused said:
“I would like to state that the person had died and it was not my intention to kill her, and it was not a deliberate murder. It was result of my actions out of anger”
[34] In deciding whether you can safely reply upon the admissions, you must decide two issues. Firstly, you must consider whether the Accused in fact make the admissions? If you are sure he made the admissions, then you must consider whether the admissions were true. If, for whatever reason, you are not sure that the admissions are true, you must disregard them. If on the other hand, you are sure that they are true, you may rely on them. It is a matter for you to consider what weight you attach to the admissions of the Accused.
[35] The fourth witness was Krishneel Chand. Mr Chand acted as a translator for the Accused when the police caution interviewed him and recorded his charge statement. Mr Chand said he was requested to translate for the Accused who spoke Mandarin. He said he translated for the Accused to the best of his ability.
[36] The next witness was Sgt. Liga. Sgt Liga is a crime scene examiner based at the Fiji Police Force. She attended the scene of the crime at 33 Salato Road, Namadi Heights. She drew sketch plans of the scene which she tendered as prosecution exhibits 7A and 7B.
[37] The next witness was Dr Prasad who medically examined the Accused on 13 May 2019 at around 4 pm at Samabula Health Centre and then on 20 May 2019 after the caution interview of the Accused was concluded. The doctor noted her findings in her reports which she tendered as prosecution exhibits 8 and 9. When the Accused was medically examined on 13 May 2019, the doctor noted abrasions on the left side of the neck and on the anterior aspect of the neck. The doctor said the injuries were less than 24 hours old and could have been caused by a sharp object such as finger nails.
[38] The final witness was the police forensic photographer, WPC Maria. She took the photographs of the crime scene and during the post mortem. The photographs are marked prosecution exhibit 10. The photographs taken during the post mortem are relied upon by the prosecution to show the nature and gravity of the external and internal injuries sustained by the victim. Some of the photos taken during the post mortem examination are fairly graphic. You must look at them dispassionately and objectively. They were taken after procedures necessary for the forensic examination and post mortem, were performed. They are intended only to show you the injuries.
[39] That is a summary of the evidence of the prosecution witnesses.
[40] The Accused in his evidence did not dispute that he manually strangled the victim. His account is that his first contact with the victim was on a social media app WECHAT. The chat messages between the Accused and victim are marked defence exhibit 1. He knew that the victim provided sexual services for money. He said that she offered to meet with him, and at first he was reluctant, but then agreed to meet her at her residence at Salato Road, Namadi Heights on the evening of 12 May 2019. The Accused does not dispute that he had sexual intercourse with the victim on the night of 12 May 2019 at her residence. After having sex he slept overnight at her place. The following morning he woke up and on the victim’s offer he had sex with her for the second time. The events that followed after that was relayed by the Accused in his evidence as follows:
“So then we ended up having another round of sexual intercourse My Lord, after that I put on my clothes and as I was about to leave she told me not to, no no no no no she doesn’t want to be paid $300.00 she wants to be paid $400.00 instead. To which he told we had already agreed before I came here that I would pay you $300.00 and not $400 to which the deceased then told him no because yesterday on the 12th you came a bit earlier you arrived here at 8 therefore you need to pay me $400.00. So to which we started arguing and I then asked her do you really think you are worth $400.00? To which she replied back to me saying if you don’t pay me the $400.00 I will not let you leave from this room. At the time My Lord I have only about $378.00 with me so I was not able to pay her the $400.00 she had demanded. So that’s when she moved from where she was My Lord and she had gone and stood in front of the door and she locked and she stood in front of the door and told me that she would not let me leave the room. When she locked the door I was sitting on the bed at the time when I saw her locked the door I started to get angry to which I then stood up and started to approach her and when I approached her I pushed her to the side and I told her to move I am going to leave now. I pushed her off with my left hand to which she started scratching me so when she started scratching me I had to try and hold her back so that she would not be able to scratch me anywhere else on my body. When she started scratching and then I started to hold her back that’s when she started to get more angrier and started throwing slaps and punches at me and that is when I started to use both of my hands to try and fend her off at the time. When that was happening I could see that blood was coming down from my neck so then there were so many things going on in my head to which I didn’t intend to kill her the only thing I was trying to do was to stop her from slapping me and punching me for me to actually leave the room because she was coming at me and she just kept shouting “you are not going to leave the room, you are not going to leave the room”. My Lord everything happened so fast I didn’t realised that during everything that was happening up to her losing her life and if I had known that this would lead to her death I would have just given her the $400 instead and left the room. I know My Lord I am a man and I have a lot of strength in me but I know on that particular day I am not aware of how strong my grip was on her neck I don’t know how strong my grip was and for the police officers to be saying that I had strangled her even when she was lying on the bed I would deny that My Lord but we were just fighting we were standing when all these was happening, we were on our feet we weren’t on the bed. My Lord when all these were happening I wasn’t looking at her when I was strangling her at the time. But then when I was strangling her I could see that she had lost consciousness so that is when I let go of her and I lifted her up and brought her on to the bed. When I laid her on the bed I could see that her chest was still pounding and I then put my finger underneath her nose to see if she was still breathing and I had also checked for her palm and to see that she was still breathing and I could see that she was still breathing at the time but everything happened so fast and I didn’t realised when she had actually passed away. My Lord after that I then sat down beside her body on the bed and so many regrets was running through my head and I was thinking to myself if only she had not provoked me and if only she had not stood up to go and lock the door and tell me that if I had not pay her the $400.00 I would not leave from here. This would not have happened to her”
[41] That is evidence of the Accused.
[42] The prosecution case is that the Accused manually strangled the victim to death with either an intention to cause death or that he knew of a substantial risk that the victim will die by his act and having regard to the circumstances known to him, he was not justified to take the risk. The prosecution submits that the force used by the Accused to strangle the victim was significant, and therefore, his response to things said or done to him by the victim was disproportionate. The prosecution submits that the conduct of the Accused to defend himself by strangulating the victim was not a reasonable response in the circumstances of this case. The prosecution submits a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused’s age and sex would not have been provoked to lose his self-control and do what the Accused did.
[43] The defence case is that the Accused did not have an intention to kill the victim and that the act of strangulation occurred suddenly without thought when he was provoked by the victim and when he defended himself from the physical attacks of the victim.
[44] Which version of the facts to accept is a matter for you. You will have to evaluate all the evidence when you consider the charge against the Accused has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed.
[45] Let me sum up for you the various steps you are to follow:
[Assessors provided with a written copy of the steps to follow]
(1) You must first of all consider whether the conduct of the Accused that caused the death of the victim was a conduct carried out in self defence.
(2) If you conclude that the death of the victim was caused by a conduct carried out by the Accused in self defence as I have defined it, you will deliver opinions finding the Accused not guilty and the matter ends there.
(3) If you feel sure that the conduct of the Accused was not in self defence you will go on to consider the charge.
(4) If you reject self defence then there is little doubt, you may think, that the death of the victim was caused by manual strangulation and that it was caused by the conduct of the Accused. Therefore the real question you have to decide is whether it was done with either
- an intention to cause death of the victim, or
- an awareness of a substantial risk that death will occur.
(5) If you feel unsure whether the Accused intended to cause death or was aware of a substantial risk that death will occur, you will render opinions of manslaughter.
(6) If you feel sure that the Accused intended to cause death or was aware of a substantial risk that death will occur, you will go on to consider provocation.
(7) If you feel unsure that there was no provocation or accept that there was provocation then you will render opinion of guilty of manslaughter.
(8) If you feel sure that the Accused intended to cause death or was aware of the substantial risk that death will occur and are also sure that there was no provocation, you will advise me that the accused is guilty of murder.
[46]>[46] Your possible opinions are guilty of muor guilty of manslaughterghter, or not guilty of any offence.
[47] That concludes my summing up of the law and the evidence in this particular tria>
[48] We have now reached the stage where you must must retire to your room to deliberate together and form your individual opinions on the charge against the Accused. You may have with you any of the exhibits that you would like to consider.
[49] When you have reached your separate decisions you will all come back into Court and you will each be asked to state your separate opinion.
[50] Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court clerk and the Court will reconvene to receive your opinions?
Thank you.
. ...........................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused
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