HKSAR v. CHUM LAP FAN

CACC 116/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 116 OF 2007

(ON APPEAL FROM HCCC NO. 173 of 2006)

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

1.  On 26 March 2007, Chum Lap-fan (the applicant) was convicted of murder (count 1) and three other related offences (counts 2 to 4) following his trial before Lunn J and a jury.  Earlier, the applicant had pleaded guilty to a 5^th count which alleged that he had prevented the lawful burial of a corpse.  He was sentenced to life imprisonment on the 1^st count and to a total of 10 years’ imprisonment on the remaining counts to be served concurrently.

2.  The applicant now seeks leave to appeal against his conviction on counts 1 to 4. 

The Prosecution’s Case

3.  The facts were relatively simple and we shall, for present purposes, adopt much of the helpful summary provided to us by Mr Robert S K Lee, SC, for the respondent, in outlining the prosecution’s case against the applicant.

4.  At about 2.22 pm, on 20 April 2006, Ms Fung Wing-yan, aged 28 (the deceased), a PCCW mobile phone saleslady, left her office to meet the applicant, a potential customer.  The applicant, aged 49 at the time of his conviction, worked as a fireman.  He lived at Room 1723, Sheung Yee House, Sheung Tak Estate, Tseung Kwan O. 

5.  At 3.56 pm, the deceased entered Sheung Yee House and was not seen alive again.  Mr Wu, her husband, made a report to the police that evening after he was unable to make contact with her.  At about 9.20 am, on 22 April 2006, the applicant was arrested by the police at Tsim Sha Tsui Fire Station although, at that stage, the deceased’s body had not been found.

Count 1 - Murder

6.  Telephone checks conducted by the police revealed that calls had been made from the deceased’s telephone to the applicant’s mobile telephone on various occasions between 17 to 20 April 2006.  The last three of these calls were made at 1.31 pm (360 seconds), 2.57 pm (58 seconds) and 3.54 pm (18 seconds) on 20 April 2006.

7.  The police also retrieved a closed circuit television (CCTV) tape from Sheung Yee House which showed that at about 8.02 pm, on 20 April 2006, the applicant was inside a lift at Sheung Yee House with an iron cart carrying a nylon bag and an electric fan.  At about 8.03 pm, the applicant took the iron cart and the items on it to the main entrance of Sheung Yee House and, at 8.04 pm, the applicant drove a light goods vehicle, JR 3549, out of the Sheung Tak Estate car park.

8.  On 23 April 2006, in the course of the 3^rd in a series of video-recorded interviews with the police, the applicant admitted that the deceased had gone to his flat on 20 April 2006 where she died after he had given “her neck a quick jerk” which “produced a ‘qua’ sound”.  He then borrowed a van and used a handcart to convey the body from the flat to a vehicle.  He said that he dumped the deceased’s body down a slope in Tai Mo Shan.

9.  Later that day, the applicant accompanied the police to show them where the body had been left.  The naked corpse of the deceased was found stuffed in a nylon bag which had been discarded on the hillside at Tai Mo Shan Road.  Later, the police seized a blue-coloured iron cart from the rear compartment of the light goods vehicle, JR 3549, recovered from the car park of Kai Tak Operational Base.

10.  At the subsequent post mortem, the forensic pathologist found that “the cervical spine showed no evidence of fracture, dislocation or subluxation. The cause of death was ligature strangulation”.

Counts 2 and 3 - Theft

11.  At about 9.30 pm on 20 April 2006, the applicant used two of the deceased’s bank cards to effect withdrawals from her two bank accounts, taking HK$4,400 from the Bank of China and HK$400 from the Hongkong Bank.  The image of the applicant was captured by the CCTV system covering the machine which dispensed money at one of the banks.

Count 4 - Blackmail

12.  At about 10.15 am, on 21 April 2006, Mr Wu’s mobile telephone received an SMS message emanating from his wife’s telephone number.  The sender alleged that the deceased was in the Mainland and that she owed the sender HK$300,000.  The sender alleged that the deceased was safe at the moment and demanded that Mr Wu should deposit $20,000 into each of the deceased’s accounts.  He also told Mr Wu to bear the consequences if he (Mr Wu) made any report to the police.

13.  On 22 April 2006, when police officers were looking for the applicant at the Tsim Sha Tsui Fire Station, they found two of the deceased’s mobile telephones inside the applicant’s changing room locker.  It was then that he was arrested.

Defence case

14.  The applicant gave a number of versions of what had happened to the deceased when he was interviewed by the police and, at his trial, he gave a completely new account.

15.  In his 1^st interview with the police, the applicant admitted knowing the deceased because he had wanted to buy a telephone for one of his sons.  He said that the deceased called him on 20 April 2006 and told him that she would come to his home.  However, the deceased did not turn up.  Sometime after 6 pm, he left home and bought from a “tout” the two mobile telephones that had been found in his locker at work.  The applicant admitted sending SMS messages with one of the mobile telephones found in his locker but stated it was “ all a joke”.

16.  In the 2^nd police interview, the applicant simply repeated his first version of events.

17.  At trial, the applicant did not challenge the voluntariness of these two interviews.

18.  In his 3^rd interview, when the applicant admitted for the first time that the deceased had come into his flat, he said that the two of them discussed the sale of a telephone.  The deceased then said that she was exhausted and the applicant offered to give a “quick jerk” on her neck but, “unexpectedly, the jerk produced a ‘qua’ sound.  It went overboard ... I then gave it a twist at the back and then that’s it”.  He intended to apply “external cardiac compression on her” but noticed that “the neck was broken”.  He then cut the deceased’s clothes and placed them in plastic bags.  He borrowed a van and used the handcart to convey the body from the flat to the vehicle.  Whilst doing so, he noticed a wallet which contained two ATM cards and a piece of paper with code numbers written on it.  He then dumped the deceased’s body down a slope and drove to Tsuen Wan.  He later withdrew some money from the account from an automatic teller machine.

19.  In the 4^th interview, the applicant changed his version of events again, saying that after the deceased had explained to him the telephone services which were provided, he started to think about his personal problems regarding marriage and finance.  He then “suddenly rushed to her and grasped hold of her neck”.  He then “pumped her about that personal identification number … When being grasped she suddenly put up a struggle”.  After that, the applicant “then jerked her”.  The deceased became “rather soft, her head lowered”, and she “looked like losing consciousness”.  The applicant dragged the deceased to the toilet and hung her on the rail of the shower curtain before going out to buy some plastic bags.

20.  The applicant’s last version of events was the one he gave in his testimony at trial.  On this occasion, he seemingly tried to make out that the deceased may have committed suicide.  First, however, he said that he met the deceased on 17 April 2006 at his home.  He described the deceased as “appearing not very happy”.  On that occasion, they chatted.  The deceased told him about her personal matters.  The deceased embraced and kissed him and they had sexual intercourse.  Afterwards, the deceased borrowed $5,000 from him.

21.  The applicant said that on 20 April 2006, the deceased came to his flat again.  He described the deceased as “once more appearing unhappy”.  He tried to console her.  The deceased indicated that she was going to repay him the money that she owed him and took out two bank cards from her bag.  She also wrote two code numbers on a piece of newspaper.  When the applicant suggested going together to make the withdrawals, sexual intimacies ensued and they removed their clothes.  However, all of a sudden, the deceased flew into rage.  She accused the applicant of being unable to perform sexual intercourse, saying: “Not going to do it, you’re not able to.  You are fucking unable”.  The deceased was emotionally unstable and the applicant became very angry.  He said that he “dashed forward and grabbed her, holding her hair and neck with his right arm”.  He then pulled the deceased into the toilet, pushed her to sit on the toilet bowl cover, and tied her wrists and ankles with plastic straps.  He said he wanted the deceased to calm down.  He himself then went outside the toilet, also to calm down.  He consumed four or five beers before he returned to the deceased and untied her because she was saying that her hands were painful.  She wanted to be left alone.  However, after a while, when he again returned to the toilet, he saw the deceased naked, half sitting beneath a red shower mat, with strings around her neck, the other ends of which were wrapped around the curtain rail above her.  The applicant checked unsuccessfully for any response in her breath or pulse.  He did not call an ambulance because he was “very confused” and later disposed of her body in Tai Mo Shan.

22.  The applicant agreed that he and the deceased were the only persons who could have been responsible for her death.  However, he said that he did not kill the deceased.  He said he was not saying that she killed herself but he had no idea how she died.  He denied that he had murdered her and hung up her body on the curtain rail. 

23.  In regard to the allegation of blackmail, the applicant insisted that he had just sent the messages as part of a game or joke.  He said that he was bored and did this while sitting on a bus. 

24.  He denied stealing the deceased’s money by suggesting that he was merely getting back the money the deceased had borrowed from him.

Grounds of appeal

25.  There are two grounds of appeal.  These are homemade grounds as Mr McNamara has indicated that there are, in his opinion, no arguable grounds to be advanced.  The applicant’s grounds read:

“(1)    The Statement in the video-recorded interview was made when there were threats, violence and inducements from the police.

    (2)     The Judge and the Prosecution have possibly misdirected the jury.  A detailed analysis of the case requires retrieving the transcripts of the trial from the court.”

We can safely assume in regard to the 1^st ground of appeal that the applicant’s complaint relates solely to the 3^rd and 4^th interviews.  The allegations against the police were extensively covered at trial, not only by Mr McNamara, who conducted the defence, but also by the judge at very considerable length.

26.  The applicant testified that his description of events in the 3^rd and 4^th interviews concerning the deceased’s death was not true.  He claimed that the truth was contained in his later account at trial.

27.  The judge directed the jury on the issues arising from the challenge to the voluntariness of those two interviews in great detail.  The approach to be taken by the jury to this aspect of the case was described by the judge in the following terms:

“In deciding whether you can rely upon the admissions - if you find them to be that - in those records of interview, you must decide two issues. Firstly, did the defendant, in fact, make the admissions. Of course, of that, there is no issue because we have the videotape and you can hear him speaking the words. The second issue is that: are you sure that the admissions are true? When deciding this, you should have regard to all the circumstances in which you find the admissions were, or may have been, were or may have been made - and consider whether there were or may have been any circumstances which cast doubt upon the reliability of those admissions. In addressing the issue of whether the admissions or answers are true, decide whether they were, or may have been, given as a result of oppressive or improper conduct or circumstances. If the defendant is correct, or may be correct, when he testified that he was threatened and assaulted by police officers prior to the third and fourth records of interview, you may think it is unsafe to rely on them. That is a matter for you. It is for you to assess what weight should be given to the admissions. If, for whatever reason, you are not sure that the admissions are true, you must disregard them. If, on the other hand, you are sure that they are true, you may rely on them.”

28.  The judge went through the evidence of the police officers and reminded the jury not only that they had denied that they had assaulted or threatened the applicant, but also of the fact that there was no evidence of any injuries being found on the applicant in spite of the way he had described being beaten up.

29.  The judge also provided a detailed summary of the applicant’s testimony at trial, including his explanation for the variations in his accounts and the allegations he had made against the police officers investigating this case.

30.  Mr Lee submitted that the judge had fairly and accurately summed up the issues and evidence to the jury and properly directed them on the law relating to the challenged interviews.  We are satisfied that this is borne out by the summing up which provides a well-balanced and extremely fair summary of all the issues, both legal and factual.

31.  The applicant in a recent letter to the court dated 16 February 2009, made one further allegation in regard to “CIP Pao” being (by mistake) permitted to stay in the court during cross-examination of other officers which might have been a disadvantage for him.

32.  However, it is a common practice to allow a senior officer who is in charge of the enquiry, as this officer was, to remain in court and we are unable to discern how this could have been to the applicant’s prejudice.

33.  As to the 2^nd ground of appeal, the applicant referred to a possible misdirection of the jury.  There is no suggestion as to what this may have been and, in any event, Mr McNamara, who has immense experience of criminal procedure, was present throughout the trial looking after the applicant’s interests.  We are satisfied, having read the judge’s summing up in full, that nothing was left to the imagination.  Every conceivable aspect of the case of any materiality was covered with total accuracy.

Conclusion

34.  The application is dismissed.