HKSAR v. LING WAI MING

CAC C 276/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 276 OF 2010

(ON APPEAL FROM HCCC NO. 323 OF 2009)

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BETWEEN

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

Introduction

1.  On 10 June 2010, following a trial in the Court of First Instance before Mr Justice McMahon and a jury, the applicant, who had been charged with the murder of a woman named Feng De Li Zhi Ying, was acquitted of murder but, by reason of diminished responsibility, convicted of manslaughter.  The applicant, who suffered from paranoid schizophrenia, was ordered to be detained in a correctional services psychiatric centre for an indeterminate period pursuant to s. 45 of the Mental Health Ordinance, Cap. 136.

2.  On 6 August 2010, the applicant filed an application for leave to appeal his conviction out of time.  The application was drafted by himself.

3.  He sought to be excused his delay for filing his application on the basis that he had no knowledge of the necessary legal procedures.  The applicant advanced just one ground of appeal, namely, that at trial his counsel had acted unprofessionally, his defence having been ill-prepared.

4.  In October 2010, the applicant was granted legal aid in respect of his application for leave to appeal against conviction out of time.  His counsel was Mr Paul Loughran who, having considered the papers, did not feel able to advance any ground of appeal.

5.  This application first came before us on 20 May 2011.  On that occasion, for reasons which need not delay us, the applicant was no longer legally represented.

6.  On that occasion, we were concerned by two matters.  First, whether the applicant was competent to represent himself and, second, whether in the circumstances justice demanded that the applicant have the assistance of counsel.  We therefore adjourned the matter until today.

7.  As to the competency of the applicant, we have received a report from Dr Choi Wing Kit, a visiting psychiatrist at the Siu Lam Psychiatric Centre where the applicant is presently held.  Dr Choi reports that the applicant is on a regime of compulsory antipsychotic medication.  While the side effects of the medication have for the most part been successfully dealt with, Dr Choi is of the opinion that the applicant is still psychotic, is uncooperative, lacks insight into his condition and continues to present a danger to others.  In the circumstances, his competency must be in doubt.

8.  As to legal representation, however, we are pleased to note that Mr Loughran appears before us this morning.  He has reconsidered the papers but remains of the view that he is unable to advance any ground of appeal.  He is here to be in a position to render such assistance as we may require.

Background

9.  In June 2009, the applicant and Madam Feng were living in adjacent rooms in a building in Lung Tin Estate in Tai O.

10.  In the early hours of the morning of 25 June 2009, a security guard at the estate received a telephone call from Madam Feng.  She was in a state of great distress, seemingly telling somebody who was in her room not to point a knife at her while at the same time calling for help over the telephone.

11.  A female security guard who was dispatched to her room saw a man emerging from the room.  There was blood on his hands and forearms.  The man escaped.  The security guard was later to identify the applicant as that man.

12.  The police were called to the scene.  Madam Feng’s body was found.  Her throat had been cut and she had suffered numerous stab wounds and cut wounds.

13.  Later the same day, the applicant was arrested.  It was the police evidence that, when cautioned, the applicant admitted that it was he who had carried out the killing.

14.  When arrested, the applicant was found in possession of a bloodstained knife.  It was part of the prosecution case that the blood on the knife matched the DNA of Madam Feng.  Bloodstains found on a vest taken from the applicant were also found to match Madam Feng’s DNA.

15.  It was further part of the prosecution case that nail clippings taken from Madam Feng’s body were found to contain a mixture of her DNA and the DNA of the applicant.

16.  After his arrest, the applicant was interviewed under caution.  In those interviews, the applicant alleged that Madam Feng had harassed him and threatened to kill him.  However, while he admitted kicking the door grille of her room, he denied entering her room and denied killing her.

17.  From this brief summary, it will be seen that the prosecution evidence against the applicant was formidable.  

18.  At trial, on the instructions of the Department of Legal Aid, the applicant was represented by Mr John Hemmings, a counsel of considerable experience in matters of criminal law.

19.  The applicant pleaded not guilty to the charge of murder.  He did not himself give evidence nor did he call any witnesses.  At an early stage of his directions to the jury, the judge summed up the defence case in the following terms:

“Now, the defendant says, quite simply, that he was not the person who killed Madam Feng, and that therefore some other person must have killed her. When I say the defendant says this, I say that because this is the defence case presented to you in cross-examination of the prosecution witnesses and in the course of Mr Hemmings’ submissions.

The defendant’s case is that police fabricated their evidence of alleged admissions that he made about committing the offence, or he was said to have made about committing the offence when he was intercepted and arrested in the afternoon of 25 June. Mr Hemmings says that Madam Ki’s evidence that it was the defendant who she saw leaving Room 109 with blood on part of his arms and part of his hands was mistaken, and Mr Hemmings suggests that the DNA evidence and other forensic evidence called by the prosecution is insufficient or unreliable.”

20.  The applicant’s single ground of appeal is to the effect that he was not professionally represented by his counsel at trial; as he has expressed it, that his defence was ill-prepared.  The applicant has not set forth any submissions in support of this ground nor has he elected to address us in support of it.

21.  We have not had the benefit of a transcript to be able to digest word for word what was said during the course of the trial.  However, in his summing-up to the jury, the judge reminded them at length of the manner in which Mr Hemmings, representing the applicant, attempted to undermine the prosecution evidence so as to raise a reasonable doubt in the minds of the jury.  In this regard, his summing-up extends over eight pages.  The judge commenced this portion of his summing-up by saying:

“Mr Hemmings simply says there is insufficient reliable evidence to establish that the defendant was the person who killed Madam Feng.”

22.  From the description given by the trial judge of the manner in which Mr Hemmings attempted to demonstrate to the jury that the evidence before them was insufficient or unreliable, there emerges a clear picture of a counsel, faced with a formidable body of evidence, doing his best with skill and care to demonstrate that the evidence was not all that it may appear to be.  Nothing emerges from the judge’s directions to the jury of a half-hearted or broad-brush defence presented by Mr Hemmings.  In short, nothing emerges to suggest that the defence was ill-prepared.  To the contrary, as we have said, what emerges is a defence prepared with care, a defence that condescended to considerable detail in its attack on the prosecution evidence.

23.  The principles governing appeals based on the alleged incompetence of defence counsel at trial are now well-settled.  As a general rule an accused person is bound by the way the trial is conducted by counsel and it is not a ground for setting aside a conviction that decisions made by counsel during the course of the trial were made without, or contrary to, instructions or have involved errors of judgment.  However, there may arise cases where something has occurred in the running of the trial, perhaps as the result of flagrant incompetence on the part of defence counsel, which will be recognised as causing a miscarriage of injustice.  Only then will an appellate court interfere.  The critical issue always is this: has the applicant received less than a fair trial?

24.  We are satisfied that in the present case no evidence of incompetence on the part of Mr Hemmings is to be found.

25.  We have also considered the judge’s lengthy and detailed directions to the jury.  They cover all available defences in a manner that correctly reflects the law.  They appraise the jury fully of all aspects of the applicant’s defence.  We would add that, in our view, the directions are a model of clarity.  Nothing emerges from the directions to suggest that the applicant received anything less than a fair trial.

26.  We would add that it was the decision of the trial judge to call two psychiatrists to give evidence concerning the mental illness of the applicant and then to leave the jury with the alternative verdict of manslaughter by reason of diminished responsibility.  It was also the decision of the judge to leave the jury with an alternative verdict of manslaughter by reason of provocation.

27.  As we have said earlier, Mr Loughran, himself a counsel of considerable experience in criminal matters, has not felt able to advance any ground of appeal.  We would not take issue with his viewpoint.

28.  For the reasons given, while we allow the applicant’s application to seek leave to appeal out of time, we dismiss the application itself.