HKSAR v. CHAN MAN SUM, IVAN

CACC 273/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 273 OF 2015

(ON APPEAL FROM HCCC NO. 428 OF 2014)

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D E C I S I O N

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Hon Lunn VP (giving the Decision of the Court) :

1.  On 26 July 2017, we allowed the appellant’s appeal against conviction and quashed the conviction, but ordered a retrial on a fresh indictment on the count of murder.

2.  The appellant having indicated in person to the Court on 26 July 2017, after the judgment had been handed down, that he wished to apply for costs, subsequently the Court gave directions in respect of the filing of written submissions.

The appellant’s submissions

3.  In written submissions filed with the Court on behalf of the appellant, Mr McCoy SC applied for the costs of the “… trial... including any proceedings preliminary and incidental thereto, as well as all proceedings in the Magistrates court”, together with the contribution of $31,900 that the appellant had made to the Legal Aid Department in respect of the grant of legal aid for the conduct of his representation at the hearing of his application for leave to appeal.

The respondent’s submissions

4.  In written submissions filed with the Court on behalf of the respondent, Mr Hui SC did not oppose the application in respect of the appellant’s contribution to the Legal Aid Department for his representation in the appeal, but opposed all the other applications.

The appellant’s submissions

5.  For the appellant, Mr McCoy submitted that it was the usual practice that, after an acquittal or a successful appeal against conviction, costs should be granted to the successful defendant/appellant unless there were positive reasons for diverging from that practice.  He acknowledged that such positive reasons had been held to include:

“(a) Where the defendant/appellant’s own conduct had brought suspicion on himself or misled the prosecution into thinking that the case against him was stronger than it was; or

(b) in relation to a successful appeal, where there is ample evidence to support a conviction but the appellant succeeds in overturning his conviction on a technicality which has no merit.”

6.  Of the former consideration, Mr McCoy submitted that the appellant had not brought suspicion on himself or misled the prosecution into believing the case against him was stronger than it was.  The case was based on circumstantial evidence.  There was no direct evidence.  No body was found.  The appellant made no admissions.  Rather, he denied the allegation.  Of the latter consideration, Mr McCoy said that the conviction had not been overturned on a technicality that had no merit.  This Court had found that the judge did not convey to the jury that they could not draw an inference adverse to the defendant “unless it is the only inference” and that such directions that he had given were “material mis‑directions”.

The respondent’s submissions

7.  For the respondent, Mr Hui acknowledged that as a general rule “a defendant should be awarded costs of his trial following an acquittal or a successful appeal against conviction.” However, he submitted that a defendant may be deprived of the costs of his trial if his conduct “during the investigation and at the trial” [1] had brought suspicion on himself.  Mr Hui submitted that the appellant’s conduct which formed part of the setting for the charge of murder was such that it plainly brought suspicion on himself.  Also, he contended that what he categorised as the “lame excuses” advanced by the appellant in his testimony at trial was conduct which brought suspicion on himself.

8.  Of the former matter, Mr Hui submitted that the appellant’s admitted conduct on the evening of 6 October 2011 and the morning of 7 October 2011, in particular, was conduct which clearly brought suspicion on the appellant.  Of the appellant’s conduct on 6 October 2011, he pointed to the fact that the appellant had arrived at the deceased’s flat at about 6:52 p.m. and, having left to purchase an array of items in shops, including multiple roles of Clingfilm, gloves and deodorising spray, the appellant left the flat finally at 10:11 p.m. before returning to his office.

9.  Of the appellant’s conduct on the morning of 7 October 2011, Mr Hui pointed to the fact that, having first gone to his office in Central, the appellant returned to the deceased’s flat at about 10:18 a.m., leaving at 10:44 a.m. wheeling a trolley on which was a large chequered bag.  Then, he drove his motorcar to Tseung Kwan O Plaza and, having returned to his motorcar to his home, took a minibus to a beach at Clearwater Bay before returning to his office in Central.

10.  On 9 October 2011, the appellant’s car was sent for cleaning. 　On 10 October 2011, the appellant arranged for Mr Lo Chun Choi to remove all the contents of the deceased’s flat. 　On 12 October 2011, the appellant had gained entry to the deceased’s flat by using the deceased’s access card and inspected the now empty flat with Mr Lo.

11.  Next, Mr Hui submitted that in his testimony the appellant had brought suspicion on himself. 　There was no urgency to empty the flat of its contents, in particular given the fact that he testified that he was very busy at work. 　Although the appellant accepted that on the evening of 6 October 2011 he had bought no less than five roles of Clingfilm, asserting that it was to be used to wrap up and protect portraits of the deceased, he acknowledged that he did not use it.

12.  Of the appellant’s testimony that he wished to empty the deceased’s flat of its contents, so that he could show his wife that his relationship with the deceased had been terminated, the appellant acknowledged that he had not taken his wife to view the flat.

13.  Next, Mr Hui pointed to the fact that the appellant admitted that he had lied to Madam Tong, a long-standing friend of the deceased, and her husband Mr Law, in responding to their request that he afford them access to the deceased’s flat so that they could view it themselves, when he said that he did not know where he had left the keys to the flat.  Also, when asked by them when he had last seen the deceased, he withheld from them that he had seen her last on 6 October 2011.

14.  Further, Mr Hui pointed to text messages that the appellant admitted he had sent to the deceased’s mobile telephone on 11 October 2011 asking her if she wished to have her portraits returned to her and inviting her to fix a date to assign title of the flat to the appellant.  He invited the Court to note that it was the prosecution case that the appellant had initiated those contacts as self‑serving conduct.

A consideration of the submissions

15.  As noted in the Court’s judgment, there was no dispute that the deceased had been the mistress of the appellant since mid‑2008.  He had provided substantial monies to assist in the purchase in her name of premises in which she lived at Flat 2, 21^st floor, Block E, Amoy Gardens, 77 Ngau Tau Kok Road, Kowloon.

16.  It was an admitted fact at the trial that the deceased was depicted in CCTV recordings in the ground floor Lift Lobby and in the lift as she returned to her flat between 16:15 and 16:16 hours on 5 October 2011.[2]  There was no dispute that thereafter she was not depicted on any of the multiple CCTV cameras deployed in that building.  Friends and family had heard nothing from her after that date and there was no record of her having left Hong Kong.[3]  Her bank accounts were untouched since 4 October 2011.  Her corpse was never recovered.

17.  It was an admitted fact that during the morning and afternoon of 6 October 2011 various text messages and telephone calls were made between the appellant and the deceased.[4]  The telephone calls made by the appellant on his office telephone were recorded and adduced into evidence.  At 18:52 hours on 6 October 2011, the appellant visited the premises of the deceased.  He left those premises at 20:34 hours and, having purchased an array of items at PriceRite and Park n Shop,[5] he returned to the premises at 20:56 hours.  At 22:11 hours the appellant left those premises.

18.  At 10:18 hours on Friday, 7 October 2011, the appellant returned in his motorcar to the deceased’s premises, exiting at 10:44 hours wheeling a trolley on which was a check‑patterned bag.  He made his way to his motorcar, which was parked in Amoy Gardens.  Then, he drove to the car park of Tseung Kwan O Plaza, at which he arrived at 11:37 hours.  Having left the car park in his motorcar at 11:53 hours, the appellant arrived at his home at Metro Town at 12:53 hours.  At 13:33 hours, the appellant returned to his office in Central.  However, in his evidence the appellant said that during the afternoon he had gone to the beach, using an Octopus card to travel on a minibus.[6]  He had returned to work between 4 p.m. and 5 p.m. that afternoon.

19.  It was the prosecution case that the appellant had killed the deceased in her flat on the evening of 6 October 2011 and that he had returned on the morning of 7 October 2011 and removed her corpse in the check‑patterned bag he wheeled out from the flat on a trolley taking it to his motorcar.[7]  Then, he had disposed of the corpse at some unknown place.

20.  It was the defence case that the defendant had not killed the deceased.  He made that denial to the police, in April 2012,[8] and repeated it in his evidence at trial.[9]  She had simply disappeared from the premises.  The appellant testified that he had visited the deceased’s flat on the evening of 6 October 2011.  The deceased told him that she wished to move out of the premises.  For his part, he said that he would remove his own possessions from the premises and get someone to clear the flat.  The deceased became emotional, and as a result, he had left her in the flat to calm down.  For his part, he went to nearby shops and bought items to be used to pack up his possessions and to clean the flat.  On his return to the flat he prepared his possessions to be removed from the flat.  However, the deceased became emotional when he answered a telephone call from his wife.  In the result, he left telling the deceased that he would return the following morning.

21.  The appellant testified that having gone to work at his office in Central on the morning of 7 October 2011, he had returned to the deceased’s premises.  He was dressed casually, wearing a red T‑shirt.  There was no sign of the deceased and he assumed that she was drunk or drinking in the bedroom.  He did not wish to wake her and did not go into the bedroom.  For his part, he packed up his possessions and left the flat.

22.  In reminding the jury of the evidence of the appellant, the judge described each of 6 and 7 October 2011 respectively as “a very important date” in the trial.  The significance of 6 October 2011 lay in the fact of the multiple communications between the telephones of the appellant and the deceased in the morning and afternoon by both text and oral conversation together with his visit to the premises of the deceased at 18:52 hours on 6 October 2011 and his comings and goings thereafter.  The significance of that evidence was that the deceased had been last seen on CCTV between 16:15 and 16:16 hours on 5 October 2011 as she made her way up to and into her flat on the 21^st floor.

23.  In that context, the evidence of the deceased’s good friend Tong Man Lin and her husband Law Fan Leung was of significance, in particular in respect of their accounts of conversations with the appellant some time after the disappearance of the deceased.

24.  Tong Man Lin testified that she had stayed with the deceased at her flat for several days from 30 September 2011, after she quarrelled with her daughter.  On 1 October 2011, they travelled together to and from Shenzhen.  She left the flat on either 2 or 3 October 2011.  Her last conversation with the deceased was “between 3 or 4 p.m.” on 6 October 2011.[10]  Then, on 7 October 2011 she travelled to Sichuan to visit her sick father, leaving her daughter with her husband.  She did not return to Hong Kong until 7 November 2011.  She had tried to contact the deceased in the interim, but to no avail.

25.  Having returned to Hong Kong, Tong Man Lin took various steps to try and locate the deceased, including visiting the block in Amoy Gardens in which her flat was situated.  However, the security guards would not allow her to enter.  Then, in late November 2011 she had a telephone conversation with the appellant, which the judge summarised:[11]

“ “I asked him if he had seen Chun Ka Yee and he said that he had not seen her after 2 October, and I said I was there that day.” And she told you how they met briefly; the defendant came up to the flat with a takeaway at lunchtime and she said to you, “I felt it would not be convenient to stay,” so she left, and she only returned to the flat that day after the defendant had gone.

Going back then to the telephone call in late November with the defendant, she said: “I asked him if he had seen Chun Ka Yee. He said he did not go up there and had not seen her.” ”

26.  The judge went on to describe in more detail what Tong Man Lin had said had been the exchange between her and the appellant:[12]

“ I asked him if he had Chun Ka Yee’s keys so that we could check if there was any clue where she had gone, also to check if she left any letters telling us where she had gone. Chan Man Sum said that he did not have the keys. I said I had seen him come in with a key and that Chun Ka Yee had told me he had the key. He said he did not know where he had left the keys.”

27.  Of Law Fan Leung’s evidence of his conversation with the appellant in respect of whether or not he was in possession of keys to the deceased’s flat, the judge said :[13]

“ Mr Law said that his wife wanted to get the keys to Miss Chun’s flat, so Mr Law told you, “I asked the defendant about them”.  He said: “I found it strange with two people living together” - he obviously thought that they did - “there was no reason not to have the keys”.

28.  Of the appellant’s evidence in respect of those two matters, the judge reminded the jury, in respect of the telephone conversation he had with Mr Law after the disappearance of the deceased as to whether or not he was in possession of keys to the deceased’s flat, that the following exchange had ensued with the appellant in evidence in chief:[14]

“ “Did you say you didn’t have the key to Mr Law?” and the answer was: “What Mr Law said was right. I said I didn’t have it because I didn’t know where it was kept”. “Well, why say that?” and he replied, “She wanted to see my flat. I knew it was empty. I didn’t want to give them the key so I told them I didn’t have it. I really didn’t want to carry on the conversation.”

29.  The judge went on to remind the jury of the appellant’s testimony in cross-examination:[15]

“ He agreed that he had lied when speaking to Mr Law by saying that he did not know where the keys were “Why did you say that?” he was asked. He said: “I knew the flat had already been cleared out and I knew that KK was on the mainland.” But he did not tell Mr Law that the flat had been cleaned out.”

30.  Of the defendant’s evidence in respect of what Tong Man Lin had said had passed between them in their conversation, the judge said:[16]

“ Tong Man Lin’s evidence had been that the defendant said to her that he had not seen Miss Chun since the lunchbox incident on 2 October.  He said that this was a misunderstanding.  “That was not my answer.” ”

31.  Clearly, on the account of Tong Man Lin, the appellant had told her that he had not seen the deceased since the three of them had briefly encountered one another in the deceased’s flat on 2 October 2011 and that he had not gone up there subsequently.  That was inconsistent not only with what the appellant had said in testimony of having met the deceased at her flat on the evening of 6 October 2011 but also with evidence available to the prosecution of contact made between the deceased and the appellant by telephone in both text and oral conversations in the morning and afternoon of 6 October 2011, and his visit to the deceased’s premises on the evening of 6 October 2011.

32.  Similarly, the appellant gave an admittedly false account to Tong Man Lin and her husband as to his possession of the keys to the deceased’s premises.

33.  Those matters, when considered in the context in which the appellant had behaved in buying the items that he had bought on the evening of 6 October 2011, returning during normal working hours on the morning of 7 October 2011 to visit the premises and in his subsequent movements that day together with the arrangements that he made for the flat to be cleared of all items several days thereafter, clearly brought suspicion on the appellant.

Conclusion

34.  In those circumstances, we are satisfied that the appellant is not entitled to the costs of and incidental to his trial.  On the other hand, as is not disputed, clearly he is entitled to his costs to the extent of his contribution to the Legal Aid Department of his successful appeal.  Accordingly, we order that the respondent pay the appellant $31,900.