R. v. WONG YUE HING

IN THE COURT OF APPEAL

1995, No. 417

(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. The applicant was convicted of murder. This is her application for leave to appeal against conviction.

2. The Crown case was that on 17 August 1993 the applicant pushed or threw a boy of 27 months of age over the retaining wall on the roof of a building known as Block B6, Greenwood Garden at Shatin, New Territories. The child fell 27 floors into the playground on the L3 podium and died from his injuries. The ambulance began its journey to Greenwood Garden at 8:59 am. He was thus last seen alive with the applicant at about 8:45 to 8:50 am at the lift lobby of Block B and he was dead shortly before 9:00 am.

3. From the facts the Crown contended that some person must have been responsible for taking the child to the roof and that person was the applicant.

4. There was evidence from a Mrs Leung that she had seen a woman who could be the applicant at about 8:50 am that day and she had seen this person who might be the applicant by the pillars of Block A talking to a child. There was also evidence from a Mrs Wong that she had spoken with the applicant at about the same time and she saw the child following the applicant.

5. Upon being questioned by the police on a door to door enquiry the applicant said she had not seen a child answering the description of the deceased. Upon interview after her arrest by the police in July 1994 she said she had gone up to the roof and forgotten the child on the roof. She also admitted to the police that she told Mrs Leung and Mrs Wong, whom she knew, to keep quiet and to tell the police nothing about seeing her with the child. She further told the police that at 8:45 am she went to have a hair cut. The evidence however was that the hairdresser was not working that day.

6. In her second interview with the police, the applicant said:

"On the evening of the day the incident occurred I called Mrs. LEUNG once and asked her if the deceased (that fell from block B, Greenwood Garden) which was on the news on the TV, and the little boy we had seen that day were the same person. Should the police ask us, it should not be mentioned that we had seen a little boy to save us the trouble".

7. Then there was the medical evidence of recent bruises on the child's legs consistent with having been gripped hard by a hand or hands.

8. The defence was that she had never taken the child to the roof. She also complained that the statements she made to the police after her arrest and the video-tape of reconstructions of her actions and statements (viz., Exhibits P3, P4, P33 and P43) had been obtained by police assaults, threats and inducements. When she persisted in her denial she was grabbed round the neck which left red marks as seen by Miss Mona Tung, a nurse, at about 7:00 pm on 27 July at Tai Lam Prison and by a doctor on 28 July at Prince of Wales Hospital.

9. It is not disputed that on the evidence the injuries occurred whilst the applicant was in police custody. The case for the prosecution was however simply that the injuries were not caused by the police. It is a stance which the trial judge was entitled to accept on the evidence.

10. These complaints were fully canvassed during the voir dire to determine the admissibility of the statements and video-tapes. At the conclusion of the voir dire the trial judge ruled these admissible.

11. The trial judge summarised the Crown case in these terms:

"Here, the prosecution say that the inference is an overwhelming inference - that, if the defendant did push, or throw, or drop the child over the side of the building, then she could only have intended to kill the child, or at the very least cause him really serious injury, because nothing short of a miracle could have saved that child; it was such a huge height."

12. In his direction to the jury he also explained the possibility of an alternative verdict of manslaughter based on gross negligence. And he also explained the effect of an accused person's lies if there be lies. No complaint is made on those parts of the summing up.

13. As stated in the skeleton argument in support of this appeal, the sole ground is that the judge erred in law in admitting into evidence the applicant's statements and the video-tapes, viz., Exhibits P3, P4, P33 and P43. It is argued that the judge failed to give proper weight to the evidence of red marks on the applicant, or to Miss Mona Tung's evidence that the marks were one or two days old. Further, it is argued that none of the police officers could offer any explanation as to how and when the marks were caused, even though there was evidence that the marks could only have been caused when the applicant was in police custody. Finally, and this is not in dispute, a photograph of the applicant taken on 25 July 1994 showed there were no such marks on the evening of the day when she was first arrested.

14. For the reasons given above, the application is dismissed.