HKSAR v. WANG WEILIE

CACC 478/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 478 OF 2011

(ON APPEAL FROM HCCC NO. 97 OF 2011)

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BETWEEN

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Hon Stock VP (giving the Reasons for Judgment of the Court):

Introduction

1.  On 10 November 2011, the applicant was convicted of the offence of murder after trial by Line J and a jury.  He was sentenced to life imprisonment.  He now seeks leave to appeal the conviction.

2.  On 4 July 2013, we refused the application and said we would give our reasons later.  This we now do.

The evidence

3.  The circumstances of the killing were most unusual.  The applicant and the deceased were married on the Mainland but although they registered a divorce in April 2008 they continued to reside together as man and wife in Guanzhou City with their son.

4.  On 23 September 2010 they came to Hong Kong by train and boarded a casino vessel here that evening.  The vessel sailed outside Hong Kong waters but, as was admitted as a fact, re-entered Hong Kong waters at 6:54 am.  The body of the deceased wife was found at about 8:35 am that morning in Hong Kong waters off Waglan Island.

5.  Since the question raised up on this appeal is tied to the issue whether the act which caused death was committed within the jurisdiction, a short summary of the evidence of some of the key witnesses is relevant.

6.  A Burmese seaman saw the applicant and his wife talking to each other on deck at about 6 am.  They were both then talking in a normal voice.  He passed them again at about 6:30 am and they were in the same position as before and still talking to each other.

7.  Then it was the evidence of a passenger, a lady named Liu Ying, that she was on the relevant deck “at around 7 am” where she saw a man and a woman – it was not an issue that they were the applicant and his wife – he was holding the female’s head towards the outside of the railing; she was seated and he was pushing her head towards the railing.  Not surprisingly, the witness thought that something was wrong and she went to seek help.

8.  In response the man in charge of security on the vessel went to the seventh floor deck where he saw the applicant alone, murmuring, looking pale and shocked and saying that he had a stomachache.  The applicant returned to his cabin and locked the door.  The security personnel found the applicant in his room where he told them that his wife had “gone down to the sea.”

9.  It is common ground upon this application that the cause of death was drowning.

10.  The pathologist’s testimony was that although he found bruising and abrasions on the wife’s body and other injuries, his conclusion was that she had died of drowning after sustaining significant but otherwise non-fatal injuries.  There was extensive skull bruising associated with a degree of intracranial injuries consistent with concussion but non-fatal on their own; a loss of consciousness would not have caused cessation of breathing and would not make it harder to find a heartbeat.  It was clear in his opinion that she had suffered severe injuries before she fell into the water.

11.  Shortly after the security personnel found the applicant in his room, the applicant was seen by the police.  He told them that his wife had often said that she wanted to commit suicide and, indeed, after they had boarded the vessel she had told him that if she died she hoped he would throw her into the sea.  In the morning he noticed that his wife was not in the cabin which they occupied and he finally located her on the deck of the starboard bow on the seventh floor and saw that she was about to jump into the sea.  He went to stop her and a struggle ensued during which her head bumped against the railings and started to bleed.  He noticed that she had stopped breathing and he believed that she was dead, so he pushed her body between the railings into the sea with the intention of fulfilling her last wish.

12.  At trial, he testified.  He admitted causing his wife’s death.  He pleaded guilty to manslaughter, a plea entered in the presence of the jury; and the jury was invited, on his behalf, to enter a verdict of not guilty to murder on the basis that there was no intention to kill or cause serious bodily harm but guilty to manslaughter on the basis that he had thrown her overboard without properly checking to see whether she was still alive.

13.  His evidence was that on the evening of the cruise, her mood declined because he was not receptive to the idea of re-registering the marriage and she accused him of an illicit relationship with another woman.  She also asked him for a loan which he refused.  She became emotionally unstable.  In the middle of the night he heard his wife say that it was meaningless to live that way.  In the early hours of dawn he heard her leaving the cabin and he followed her onto the deck.  He suggested she should sit down; that was because she had become dizzy the evening before.  She refused to sit down, so he pulled her down to make her sit on the deck.  Despite that, she stood up and walked to the stern and stepped onto the guard railings with her feet and with her hands on the top wooden rails; so he had to pull her down and when she did so she fell onto the deck.  She climbed the railings again; he pulled her down again and there were several occasions when this happened, with her falling to the floor each time.  On the last occasion that she fell, her head was bleeding profusely.  He turned her over and saw that she was unconscious and the pupils of her eyes were turned up and that she was also bleeding from the mouth and nose.  He felt for a pulse but there was none.  He felt a heartbeat, but, again, there was none.  He concluded that she was dead.

14.  He said that he was very frightened and would have to shoulder the responsibility for her death so that his son would be left without a parent and therefore if he put her body into the sea it would be thought that he had been unable to stop her; wherefore he would carry no legal responsibility for what happened.  He therefore pushed her through a gap in the railings and she fell into the sea with her head downwards.  At no time had he had any intention to kill her or to cause her really serious bodily harm.

The appeal

15.  The case of murder against this applicant was overwhelming.

16.  The sole ground of appeal advanced on the applicant’s behalf is that it was incumbent upon the prosecution to prove all the elements of the offence and that one of the elements of the offence was that the offence was committed in Hong Kong; yet that was not proved beyond reasonable doubt.  Indeed, the only evidence that the act which caused death was committed in Hong Kong was that the vessel entered Hong Kong waters at 6:54 am and that the applicant was seen with his wife, the latter not communicating with him, at the vaguely-put time of “about” or “around” 7 am.

17.  The background to this submission is that the question of jurisdiction was raised in the pre-trial reviews before Line J by counsel then representing the applicant.  Counsel indicated clearly that he wished to take the jurisdiction point, putting it on the basis that “we do not accept this offence was committed in Hong Kong waters.  And we’re entitled to investigate that.  … I want to satisfy myself that this Court has jurisdiction.”

18.  The judge expressed alarm about this proposed course.  The basis for his alarm, as he expressed it, was that if Hong Kong did not have jurisdiction, and the Mainland courts did, the consequences for the applicant upon a conviction may well be more severe.  The matter was adjourned for over a week for counsel to consider the matter and take further instructions.

19.  At the second pre-trial review, on 16 September 2011, Mr Andrews, counsel for the applicant, said that he had seen the draft admitted facts which included the contention that the vessel had re-entered Hong Kong waters at 6:54 am on the day in question and that “when the indictment is put to my client my present instructions are that he will plead to it and by pleading to it he accepts the jurisdiction of the court.”

20.  When the matter came before the jury for trial, the applicant, on the indictment alleging that he had murdered his wife in Hong Kong, pleaded not guilty to murder but guilty to manslaughter.  The fact of that plea of guilty was not adduced in evidence but it was an admission made in the presence of the jury.  Prosecuting counsel referred to it in his opening speech; and defence counsel, in his closing speech, invited the jury to convict his client of manslaughter.

21.  The perfected grounds of appeal assert or seem to assert that the place of the commission of the offence is an essential ingredient of the offence.

22.  If that were so it would be incumbent upon the judge to instruct the jury that since they had to be satisfied that the prosecution had proved all elements of the offence, they had to be sure that the offence was committed in Hong Kong.  Even if not in real issue a formal direction along those lines would have been necessary, qualified by the type of formula often seen where proof of an ingredient is not an issue, such as: “This is not an issue in this case, so it is likely that you will have little trouble with it.”

23.  As a matter of law however, locality was not an essential element of the offence charged.  The question, if in issue, was one of jurisdiction.  The logic of this approach is readily illustrated by the following excerpt from the brief judgment of Gaudron J in Thompson v The Queen (1988- 1989) 169 CLR 1 at 39:

“ … proof of jurisdiction is proof of the occurrence of some act or omission within the jurisdiction, that act or omission being selected by the law as a condition of its operation upon the acts or omissions said to constitute the offence charged. Locality, in this sense, may be contrasted with locality as an element of the offence charged, as, for example, in the case of an offence which is constituted by acts or omissions in a public place. In the latter case, locality is an essential element of the offence and as such may be decisive of criminality; in the former case, locality is decisive only of the operation of the law and of the jurisdiction of the courts charged with administering that law to enter judgment. The issue of jurisdiction is a discrete issue and distinct from the issue of guilt which depends upon the elements of the offence charged being made out.”

24.  We need not for present purposes address the procedural question, that is to say, the manner in which a plea as to the jurisdiction of the court should be taken; for it is accepted that in the case of an offence said to have occurred outside the jurisdiction of the courts, a defendant may take advantage of the point as part of the general issue.  It is noteworthy in passing that in the light of section 53(1) of the Criminal Procedure Ordinance, Cap 221, to which our attention was not drawn, demurrer is not an available option.

25.  We fail in the circumstances to understand what it is said that the judge failed to do which he ought to have done.  In so far as it is contended that he ought to have left the issue to the jury as a question of fact going to prove the offence, that contention is, for reasons which we have explained, based on an erroneous understanding of the law.  If it is based upon a contention that he failed to leave an issue of jurisdiction to the jury, whether by way of special verdict or otherwise, he was only bound to do so upon an assertion by the applicant that the court did not have jurisdiction. Not only was no such assertion made but the jurisdiction of the court was expressly conceded.

26.  The fact that jurisdiction cannot be conferred by consent can hardly mean that the issue of jurisdiction must specifically be determined or left for the jury’s determination in every case.  It need only be left if it is a live issue.  In the face of a concession by counsel as to jurisdiction, there may be unusual circumstances in which the issue is nonetheless a real issue either because the face of the indictment or the evidence makes it such.  This is not such a case because:

(1) the cause of death was drowning;

(2) the evidence was that at about 7am the wife had not yet drowned - she was on board the vessel;

(3) prior to 7 am, the vessel had entered Hong Kong waters; and

(4) by his plea, the applicant admitted that he had killed his wife and it was clearly implicit in the fact of that plea that he had done so within the court’s jurisdiction.

27.  There was, accordingly, no duty upon the judge in those circumstances to cause the issue of jurisdiction to be determined and there is no basis for this Court now to do so.

28.  For these reasons, the application was dismissed.