HKSAR v. CHUKWUEMEKA KWELI EMEKA

CACC 491/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 491 OF 2000

(ON APPEAL FROM HCCC NO. 358 OF 1999)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. The Applicant was charged with the murder of his former domestic helper. He pleaded not guilty. He was tried in the Court of First Instance by Lugar-Mawson J and a jury. After a trial lasting a number of weeks, he was convicted of her murder and sentenced to imprisonment for life. He now applies for leave to appeal against his conviction and sentence. Although he was represented by counsel at his trial, the Applicant has represented himself on the hearing of this application, having withdrawn his application for legal aid.

The prosecution's case

2. The Applicant is a British national who originally came from Nigeria. He had worked in Hong Kong for some years as an engineer. The deceased was said to have been not merely his former domestic helper (which the Applicant admitted) but also his former girlfriend (which he denied). She was said to have broken off her relationship with him because he had become increasingly violent towards her. She had gone to live at the Filipino Workers Resource Centre at the former British Military Hospital in Wylie Road.

3. There was a considerable body of evidence implicating the Applicant in the murder of the deceased. On 10 May 1999, the Applicant left several voice-mail messages on the deceased's mobile phone. Those messages were abusive and menacing. A black man fitting the Applicant's description visited the Centre in the early evening of 22 May wanting to see the deceased. One of the residents subsequently identified him as the Applicant. He was turned away when she brandished a knife and told him to leave. Later that evening, one of the other residents heard the deceased scream and heard sounds of a disturbance coming from a storeroom. A little later, a man was seen by several residents leaning over the deceased on the ground floor of the Centre. The deceased was motionless and had blood around her nose and mouth. The man kicked the door of the Centre open and dragged the deceased outside.

4. The police arrived on the scene, and they found the Applicant a short distance away from the Centre. He was arrested after a short struggle. He had just made a 999 call to the emergency services on his mobile phone, in which he had claimed that he had had a fight with his girlfriend and that he was lost inside the former British Army Base. He admitted to the police that he had assaulted the deceased, but claimed that she had run off and that he did not know where she had gone.

5. The following morning, the body of the deceased was found head-down in a manhole just outside the Centre. She had received multiple injuries consistent with a severe beating. Death had probably resulted from asphyxia, caused either by injuries to her neck and windpipe or by suffocation in the manhole as a result of her face being embedded in the mud and slime at the bottom.

6. The deceased's toiletries were scattered on the floor of the storeroom, and there were signs of a struggle. A baseball cap was found on the floor. Three strands of hair were removed from inside the cap. They displayed characteristics which were similar in colour, physical appearance and length to samples of hair taken from the Applicant. Some of the residents had seen the man wearing a cap, and in the course of a video-recorded interview with the police the Applicant acknowledged that the cap was his. In addition, the trousers and shoes which the Applicant had been wearing at the time of his arrest were seized and submitted for forensic examination. Bloodstains were found on them, and DNA tests revealed an extremely high probability that the blood was that of the deceased. The Applicant's diary was also seized. It contained a sketch of the area in which the Centre was located.

7. In the video-recorded interview, the Applicant acknowledged that the deceased had been his girlfriend, that he had been to the Centre on the evening of 22 May, and that he had met the deceased that night. He admitted that they had quarreled, that he had hit her once or twice with a slipper, that during the quarrel his cap had fallen off, and that he had kicked the door of the Centre open to get outside. He claimed that he had got lost in the grounds of the Centre. He admitted that he had made a 999 call to the emergency services, but he denied at all times having had anything to do with the deceased's death.

The Applicant's case

8. At his trial the Applicant elected to give evidence. His evidence differed in many respects from what he was alleged to have said during his interview. For example, he denied that he had ever been the deceased's lover. She had simply been his domestic helper. He had brought her employment to an end earlier on in May, and that had made her make a false complaint to the police that he had assaulted her. He had not seen her at all since 19 May. He had never been to the Filipino Workers Resource Centre. He had not been arrested in the vicinity. Indeed, he had not been arrested at all. Instead, the police had come to his home in the early hours of the morning of 23 May to question him about the disappearance of the deceased. He had agreed, albeit reluctantly, to accompany the police to the police station.

9. He denied that it had been his voice on the messages left on the deceased's mobile phone, and he claimed that the witnesses who produced the records showing that he was the subscriber of the mobile phone on which the messages were made had been suborned to give false testimony. He claimed that the forensic evidence which linked him to the deceased's death had been contaminated by the police, who had splashed the deceased's blood over the clothing and had then falsely alleged that the clothing had been his. And to the extent that his video-recorded interview contained admissions which supported the prosecution's case, he claimed that microchips and sensors had been implanted, that "a multiple voice box" had been inserted into his throat, and that it was that which was responsible for the apparently incriminating admissions which he had made.

The summing-up

10. We have read with care the judge's summing-up to the jury. It bears all the hallmarks of a summing-up on which considerable care has been taken in its preparation. Without a transcript of the evidence (which understandably was not ordered as the Applicant had failed to make it clear for what particular purpose a transcript was required), it is not possible for us to comment on how complete the judge's summary of the evidence was. It appears on the face of it to have been extremely comprehensive, and although there were occasions on which the judge commented on aspects of the evidence in a way which was unfavourable to the Applicant, there were also occasions on which the judge commented on the evidence in a way which was favourable to him.

11. We have looked with a critical eye at the directions of law which the judge gave to the jury. There were many of them. There is no discernible error in any of them, and they were expressed in language of great clarity which the jury would have had no difficulty in understanding. Nor was there any defence open to the Applicant which was not left to the jury. In addition to the principal issue, namely whether it was the Applicant who had been responsible for the deceased's death, the judge also left the issues of intent and provocation for the jury to consider.

The grounds of appeal

12. The Applicant has lodged with the court a 61-page handwritten document setting out the grounds of his application for leave to appeal against his conviction. That document has been transcribed to make it easier for us to read. The thrust of his complaint is that the evidence on which he was convicted was false, and that the jury should not have accepted it. But the jury saw and heard the witnesses, and the facts were for the jury to find. We cannot say, from what we understand from the judge's summing-up the evidence to have been, that it was not open to the jury to convict the Applicant on the evidence or that there is a lurking doubt about the Applicant's guilt.

13. A number of points have been made by the Applicant to us today. There were nine in all, and we must deal with each of them in turn:

(i) The Applicant claims that the judge did not remind the jury about the brutality to which he had been subjected by the police which had resulted in such admissions as he had made in interview having been made under duress. However, the judge reminded the jury about the complaints put on the Applicant's behalf in cross-examination by his counsel, namely that the Applicant had been beaten up in a side alley by the police station, and that before being interviewed he was beaten up in a nearby room and then forcibly dragged into the interview room. Moreover, if the judge's summing-up is anything to go by, when the Applicant himself came to give evidence, he said that there had been no physical attack upon him. Even then, the judge reminded the jury of the Applicant's evidence that the police had told him that they could arrange for him to be shot when trying to escape.

(ii) The Applicant complains that a photograph of him appeared in a newspaper on 24 May before the identification parades had been held. That came out at the trial. We have been shown the photograph in the newspaper, and it is quite apparent to us that the Applicant's face had been so obscured that it would not have been capable of compromising the integrity of any subsequent identification parade.

(iii) One of the witnesses called at the trial was Edna Jacobe. Her name had not been on the back of the indictment as a potential prosecution witness, and the Applicant claims that her evidence should therefore not have been admitted. However, a notice of additional evidence incorporating her witness statement was served on the Applicant's advisers many months before she actually gave evidence, and no question of the Applicant having been taken by surprise by her evidence therefore arises.

(iv) The Applicant claims that everything he said to the police when interviewed by them related to a previous incident between him and the deceased. However, even a cursory glance at the transcript of the interview reveals that that claim is incorrect. Although the Applicant was undoubtedly asked questions about his relationship with the deceased, he was also being asked, and gave answers, about the events of the night of the deceased's death.

(v) The Applicant complains that he first appeared in court on 25 May, having been kept in custody by the police for 48 hours before being charged. That may be true, but even if he could have been charged and brought to court earlier, the fact remains that he was interviewed on the evening of 23 May, and that was by no means an unduly lengthy time after the discovery of the body of the deceased.

(vi) The Applicant claims that 100 mg. of acetone was found in his urine, which showed that he was traumatised at the time and had been subjected to physical violence. However, we were told that there was no evidence at the trial to that effect, nor to what effect such levels of acetone would have had on the Applicant.

(vii) The Applicant claims that the judge did not direct the jury that there had been no evidence that he had been wearing the clothes which the police said he had been wearing. That complaint is misconceived. The evidence of the police officers was that the clothes which he had been wearing at the time of his arrest were seized, and the judge reminded the jury of that evidence.

(viii) The Applicant complains that the records of the mobile phone company showed that the subscriber of the mobile phone on which the abusive and menacing calls of 10 May had been made lived in Clear Water Bay whereas the Applicant lived in Hung Hom. Again, that complaint is misconceived. The records showed that the Applicant was indeed the subscriber, and although he had given the mobile phone company an address in Clear Water Bay as his residential address, he had given an address in Hung Hom as the billing address.

(ix) The Applicant complains that he had not been identified by anyone as the black man seen with the deceased. That is correct: he was only identified as the man who had visited the Centre earlier in the evening wanting to see the deceased. But the judge in his summing-up did not say otherwise.

Conclusion

14. For all these reasons, this application for leave to appeal against conviction must be dismissed. The sentence of life imprisonment for murder is fixed by law, and we have no power to interfere with the mandatory sentence which the judge passed.