HKSAR v. KHAW KIM SUN (許金山)

FAMC No. 24 of 2022

[2023] HKCFA 13

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 24 OF 2022 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACC NO. 309 OF 2018)

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DETERMINATION

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The Appeal Committee:

1.  The applicant was convicted after trial before Barnes J and a jury[1] of murdering his wife, Madam Wong Siew Fing, and one of his daughters, Khaw Li Ling, by poisoning them with carbon monoxide issuing from a yoga ball placed by him in the car in which they were travelling. His appeal against conviction was dismissed by the Court of Appeal,[2] as was his application for certification of a question of law for the purpose of leave to appeal to the Court of Final Appeal.[3] He now applies to the Appeal Committee for leave to appeal.

2.  The applicant seeks certification and leave in respect of the following question of law, namely:

“Whether a direction that good or reliable evidence or evidence of sufficient reliability and strength is required to cast doubt on the prosecution case places a burden on the defendant to prove his innocence?”

3.  Mr Christopher Grounds, appearing for the applicant, submits that such ground of appeal is made good on his reading of the Judge’s directions. We do not agree with his suggested reading. The question framed by the applicant fundamentally misrepresents the impugned direction which in fact places no burden on the defendant but quite clearly concentrates on the evidence “upon which the prosecution relies in proof of its case”. The direction poses the question whether the prosecution evidence proves guilt or whether on the other hand the prosecution evidence reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case. The direction is unimpeachable and leave to appeal on this question is refused.

4.  Leave is also sought on the substantial and grave injustice basis. The first such ground relied on is said to involve the applicant’s right of silence. When interviewed by a police officer in 2016 about the fatal events which had occurred about a year earlier, the applicant was asked why, when he was seen by the police in 2015, he had failed to mention the yoga ball and the carbon monoxide in it. Leave is sought to argue that the Judge wrongly failed to direct the jury not to draw any inference adverse to the applicant from that failure, since such an inference would contravene his right of silence.

5.  This ground is not reasonably arguable. When seen by the police shortly after the deaths of his wife and daughter in May 2015, the applicant was not a suspect and, contrary to Mr Grounds’s submissions, he voluntarily and proactively responded to the initial enquiries as shown in the transcript of the 2016 video recorded interviews which were placed before the Court of Appeal. And when interviewed a year later, he voluntarily answered questions after being cautioned. He did not purport to exercise a right of silence and that right was never an issue at trial or in the Court of Appeal. Indeed, that Court was satisfied that leading counsel for the applicant had made a considered decision at trial to have all of the defendant’s answers in the video recorded interviews admitted. There is no basis for the proposed ground and leave is refused.

6.  The second ground sought to be advanced on the substantial and grave injustice basis involves what has been called the “timeline defence”. It involves the suggestion that taking into account the time when the fatalities occurred; the distance travelled by the victims in the car; the dissipation rate and concentration level of the lethal gas escaping from the yoga ball; the consequences of its inhalation; and the time when the applicant had left home to go to work, he ought to have been excluded as the person who had placed the yoga ball in his wife’s vehicle. Leave is sought to argue that the Judge wrongly failed in her summing up to mention this hypothesis.

7.  This ground is not reasonably arguable. The argument turns on the proposition that in the relevant timeframe, the gas could not have acquired a lethal concentration unless the yoga ball had been placed in the car after the applicant had already left home to go to work. However, Dr Wong reported that one of his experiments showed a lethal concentration of the gas in the car with a reading of over 7,000 ppm during a period from 15 to 170 minutes, a result with which Dr Li, the defence expert, agreed. That result meant that the expert evidence did not provide any basis for the proposed hypothesis. Accordingly, it was open to the prosecution to prove by reference to all the evidence taken together, that the applicant was the one who had placed the yoga ball in the vehicle. The evidence, including the expert evidence, was comprehensively dealt with by the Judge in a summing up which could have left the jury in no doubt as to the thrust and relevance of the timeline defence. Her Ladyship emphasised to the jury that they could not convict unless they were sure of the applicant’s guilt and, in the context of the summing up as a whole, this clearly incorporated a requirement that they had to be sure that the expert evidence did not exclude him. Leave to appeal on this ground is refused.

8.  The third ground under the substantial and grave injustice limb involves the Judge’s directions concerning inferences that might be drawn from evidence that the stopper which had been removed from the yoga ball causing the gas to leak, was missing. The complaint is that there was no evidence that the stopper was in fact missing when the victims were found in 2015 and that evidence of what was or was not found in the car some six months later (when the relevance of the yoga ball was first appreciated by the police and after the car’s interior had been disturbed during investigations) was irrelevant or of no weight. Accordingly, the Judge’s direction is criticised on the basis that she told the jury that they might draw an inference on the basis of an allegedly missing stopper when there was no evidential basis for saying that the stopper was missing. It is moreover a complaint that even if it were accepted that the stopper was missing, the Judge’s direction that an inference bearing on who could be eliminated as a likely perpetrator could be drawn was unjustified and erroneous.

9.  In our view, it is reasonably arguable that such direction gave rise to a substantial and grave injustice and we grant leave to appeal confined to questions regarding the Judge’s treatment of the “missing” stopper in her directions to the jury.

10.  The appeal will be listed for hearing on 10 October 2023.