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 97 OF 2011)

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

1.  On 4 July 2013, the applicant’s application for leave to appeal against his conviction on 10 November 2011, after trial by Line J and a jury, of the murder of his former wife on 24 September 2010 was dismissed by this Court. On 11 July 2013 the Reasons for Judgment of the Court were handed down by Stock VP.

2.  By a Notice of motion filed with the Court on 20 May 2014 the applicant, who appears in person having been refused the grant of legal aid on 6 September 2013, invited this Court to certify that a point of law of great and general importance was involved in the Reasons for Judgment of this Court.  In a letter to the Court dated 28 July 2014, the applicant invited the Court to certify the following amended point of law, said to be of great and general importance :

“ Does Hong Kong have jurisdiction over a case if the evidence to prove its occurrence in Hong Kong is not beyond reasonable doubt? In other words, on the issue of jurisdiction, should Hong Kong apply the standard of “balance of probabilities” according to the Australian scheme (of justice) or should it apply the standard in the American scheme (of justice), that is, the principle of “beyond reasonable doubt”? ”

3.  By an affirmation affirmed on 17 December 2013, but not filed with the Court until 20 May 2014, the applicant addressed the fact that his application to this Court was made out of time, the time limit for making the application being seven days after the handing down of the Reasons for Judgment on 11 July 2013.[1]  In that affirmation, the applicant asserted :

“ I did not know that before filing for an appeal to the Court of Final Appeal, leave had to be (sought) from a High Court by raising a point of law.”

4.  In a letter to the Court dated 16 May 2014, the applicant asserted :

“ After the Court of Appeal of the High Court dismissed my appeal last year, I appealed to the Court of Final Appeal. Subsequently, the Registrar of the Court of Final Appeal wrote to inform me that before filing an appeal to the Court of Final Appeal, leave must be applied to the High Court first and it has to be certified that a point of law of great and general importance is involved in the grounds of appeal. Therefore I now submit the grounds of my appeal to the Court of Final Appeal and apply to the Court of Appeal for a certificate that, as mentioned above, a point of law is involved.”

5.  In his oral submissions today, the applicant provided the Court with a copy of a letter written by the Acting Registrar, of the Court of Final Appeal to the applicant in which reference was made to his letter to the Court dated 31 July 2013. 

6.  The letter is in Chinese, but helpfully the interpreter has given us an oral interpretation of the letter in which the various rules of the Court of Final Appeal are set out – informing an unrepresented applicant in custody that a fee of $1,045 was required before his appeal could proceed; explaining to him that if a point was said to arise of law of great and general importance then, first, an appeal had to be lodged with the Court of Appeal and that, if necessary, an extension of time could be made by an attached form provided with the letter.

7.  We are bound to say that the formal nature of the letter is of a nature not helpful to an unrepresented defendant in custody. 

8.  When asked what he had done in response to the letter, to explain the fact that the Notice of Motion was not filed until 20 May 2014, the applicant told us repeatedly that he had relied on the Correctional Services Department to process his application, he having told them that he wished to make it. 

9.  Noting that the Notice of Motion was dated December 2013, and that the affirmation was made on 17 December 2013, we asked the applicant why it was that the two documents were not filed with this Court until 20 May 2014.  In short, his explanation was that he sought representation; that his negotiations with lawyers failed on the issue of fees.

Evidence at trial

10.  The background to and immediate circumstances leading to the death of the deceased were set out shortly in the Reasons for Judgment of this Court :[2]

“ 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 Guangzhou City with their son.

   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.”

11.  Stock VP went on to describe the evidence of the circumstances in which the deceased met her death :[3]

“ 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.

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.

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.”

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

12.  The pathologist testified that in his opinion the deceased had died of drowning after sustaining significant, but otherwise non-fatal, injuries.

13.  It was the applicant’s case, as articulated in his explanation to the police and developed in his evidence at trial, that the deceased had injured herself in her repeated attempts to jump off the vessel into the sea, which he had attempted to prevent.  She was bloodied and unconscious.  Although he checked her vital signs, he concluded that she was dead and threw her body into the sea.  He did so because earlier she had expressed a desire to be buried at sea. Acknowledging that he had failed to check properly to see whether she was alive, he tendered a plea of guilty to manslaughter in the presence of the jury.

Application for leave to appeal against conviction

14.  As Stock VP noted in the Reasons for Judgment :[4]

“ 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.”

15.  As Stock VP went on to observe, the issue of the jurisdiction of the Court to try the applicant for the offence was raised in pre-trial reviews.  At the pre-trial review of 8 September 2011 Mr Andrews, who appeared for the applicant then and at trial, informed the Court that an issue was taken as to jurisdiction “our position at the moment is that we do not accept that the offence was committed in Hong Kong waters.”  However, at the pre-trial review of 16 September 2011, Mr Andrews informed the Court :

“ ..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 jurisdiction of the court.”

16.  This Court went on to reject the submission that the locality of the events leading to the death of the deceased was an ingredient of the offence, rather than a matter of jurisdiction :[5]

“ 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.”

17.  In support of that determination, Stock VP cited a passage[6] from the judgment of Gaudron  J in the High Court of Australia in Thompson v R [7], in which the Court was seized with an appeal against a conviction for murder in which the issue of jurisdiction arose, in particular as to whether the acts occurred in Australian Capital Territory, in which the trial took place, or in New South Wales.  In the joint judgment of Mason CJ and Dawson J, the issue was addressed thus :[8]

“The issue of guilt is necessarily determined within a particular jurisdiction. But the issue cannot be determined unless the prosecution establishes the authority of the jurisdiction to enter judgement. This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out. Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so defined that commission of it in a place or locality is made an element of the offence charged.”

18.  Of the question of whether or not the judge ought to have left to the jury the issue of whether the evidence established the commission of acts by the applicant within the jurisdiction which led to the deaths of the deceased, Stock VP said :[9]

“ 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.”

19.  Finally, this Court concluded that, in addition to the position taken on behalf of the applicant at trial, there was nothing in the evidence adduced at trial which gave rise to the issue : the deceased died by drowning and had been seen alive last at about 07:00; and, it was an admitted fact that the vessel entered Hong Kong waters at 06:54.  Further, the applicant admitted that he had killed the deceased and tendered a plea of guilty to manslaughter, a clear acceptance that he had so acted within the jurisdiction.

20.  Given that the issue of jurisdiction was not a live question at the trial, the question of the appropriate standard of proof required in respect of the issue of jurisdiction did not arise at all.

Conclusion

21.  We are satisfied that not only has the applicant failed to explain satisfactorily the fact that his application is out of time but also there is no merit at all in the application.  No point of law of great and general importance arises from the judgment of the Court.  Accordingly, the application, that the Court so certify, is dismissed.

(Michael Lunn) VICE-PRESIDENT

(IAN MCWALTERS) JUSTICE OF APPEAL

(JUDIANNA BARNES) JUDGE OF THE COURT OF FIRST INSTANCE

[1] Practice Direction 2.2, paragraph 3 : “Applications for a certificate to the Court of Appeal …that the decision involves a point of law of great and general importance should be made immediately after the judgment was given from which the appeal is to be brought; and Practice Direction 4.3, paragraph 4 : “Notwithstanding paragraph 3 of Practice Direction 2.2” such an application “should be made within 7 days of the handing down of the judgment from which the appeal is to be brought.”

[2] Reasons for Judgment, paragraphs 3 and 4.

[3] Reasons for Judgment, paragraphs 6-9.

[4] Reasons for Judgment, paragraph 16.

[5] Reasons for Judgment, paragraph 23.

[6] Reasons for Judgment, paragraph 23.

[7] Thompson v R (1989) 169 CLR 1, at 39.

[8] Thompson v R, paragraph 25.

[9] Reasons for Judgment, paragraph 25.