HKSAR v. YUEN MIU FUN

CACC 279/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 279 OF 2010

(ON APPEAL FROM HCCC NO 31 OF 2010)

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J U D G M E N T

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Hon Yeung VP (giving the judgment of the Court):

Background Facts

1. Ms Angie Ip Sau-fun (the deceased), a divorced woman in her mid-50s and the owner of a beauty salon situated in a commercial building in Aberdeen, last seen alive at around 2 pm on 19 June 2007, was reported missing the next day.  Human blood, strongly suggested to be that of the deceased, was subsequently found on a sports shoe and on the carpet in her beauty salon.

2. On 25 June 2007, the police received a report of a foul odour emanating from a drainage culvert on Wong Ma Kok Road in Regalia Bay, Stanley.  The police found a suitcase at the bottom of the drainage culvert with the deceased’s badly decomposed body, in a foetal position, inside.  The deceased’s head was hooded in a cloth bag, the opening to which had been tied around her neck with an electrical wire, and her legs were bonded tightly by a towel around the ankle region.

3. The decomposition of the deceased’s body made it impossible for the pathologist to determine the exact cause of death.  It could be asphyxiation when the bag and electrical wire were applied on the deceased’s neck.  It could be the result of suffocation and smothering, ligature strangulation or postural asphyxia when being put in a position for an extended period of time with mechanical impediment to respiratory movements.

4. Toxicological analysis revealed, in the deceased’s liver, the presence of Estazolam, a central nervous system depressant used for sedation and treating insomnia.  The effects of consuming Estazolam include drowsiness, muscle weakness and ataxia, and it can also cause confusion, slurred speech, tremors, visual disturbances and amnesia.  An overdose of Estazolam may cause respiratory failure or even death.

5. It was also not possible to determine the contribution of Estazolam to the deceased’s consciousness level at the time of her death, but according to a pharmacist, the deceased had taken the equivalent of two to three tablets, which was a high normal therapeutic dose.  The estimated time of death was compatible with the time of the deceased’s reported disappearance on or about 20 June 2007.

6. The applicant (Yuen Miu-fun) told the police that the deceased had a financial dispute with a Mainland doctor –  Pao Kwong-keung (Pao) and when the deceased would not or could not repay a large sum of money and/or property obtained from him, Pao engaged two Mainlanders, Huang Xiangrong (Huang) and Yue Wenjie (Yue), to come to Hong Kong to try to recover the money from the deceased.  According to the applicant, it was in the course of such an attempt that the deceased was killed.

7. The prosecution suggested that the applicant had agreed with Huang and Yue to murder the deceased and that she had assisted them in the actual killing as well as the subsequent disposal of the deceased’s body.

8. The applicant appeared before Deputy High Court Judge Lugar-Mawson sitting with a jury on two counts, one for murdering the deceased and the other for preventing the lawful burial of her body.

9. On 29 July 2010, the jury unanimously convicted the applicant of both counts.  The applicant was sentenced to the respective terms of life imprisonment and 4 years’ imprisonment to run concurrently.

10. Represented by Mr Gerard McCoy SC, the applicant sought leave to appeal against both conviction and sentence.  In the course of his submission, Mr McCoy informed the court that the application for leave to appeal against sentence would not be pursued.  Mr McCoy concentrated on the murder conviction and had not advanced separate grounds of appeal on the charge of preventing the lawful burial of the deceased’s body.

The Evidence Against the Applicant

11. The prosecution evidence, largely undisputed, showed that Huang and Yue entered Hong Kong from the Mainland with a large suitcase on 18 June 2007 via Lo Wu Border.  Accompanied by the applicant, they checked into a guest house in Causeway Bay.  The applicant paid the room charges and the key deposit of $840.

12. The applicant, having earlier arranged to meet the deceased at her beauty salon on 19 June 2007, went from Causeway Bay to Aberdeen on board a minibus with Huang and Yue at about noon time.  Huang wore a baseball cap and carried a rucksack on his back.  Yue, wearing a surgical mask, carried the large suitcase.

13. Upon arrival at Aberdeen, the applicant went up to the beauty salon to meet the deceased whilst Huang and Yue waited in the vicinity.  The applicant gave the deceased a drink that had been laced with Estazolam to render her unconscious.

14. After confirming that the deceased had become unconscious, Huang and Yue went up to the beauty salon.  Huang put a bag to cover the deceased’s head and Yue strangled her neck with a piece of wire.  The applicant then took, from the rear staircase, the large suitcase for Huang and Yue to place the deceased’s body.  The applicant then left the beauty salon first to hail a taxi.  She told the taxi driver to wait with the boot of the taxi open.  She was later joined by Huang, who was pulling the suitcase with both hands and Yue, who was carrying the rucksack.  They placed the suitcase in the boot of the taxi.

15. The applicant instructed the driver to drive to Stanley and upon arrival at the entrance of the PLA Barracks they alighted and retrieved the suitcase before paying the fare.  They walked to the nearby Regalia Bay where Huang and Yue threw the suitcase with the deceased’s body inside into an open manhole in a drainage culvert.

16. It appeared that the applicant was familiar with the Regalia Bay area as she told the police that she had been to Regalia Bay in the past and she found the apartments there nice.

17. After the disposal of the deceased’s body, the applicant went to Causeway Bay with Huang and Yue and found a public toilet at the World Trade Centre for them to get changed before they returned to the guest house together.

18. Although Huang and Yue had booked a room in the guest house for two nights, they only stayed for one. In fact, it was the applicant who checked out of the guest house for them shortly after 9 p.m. on 19 June 2007 and claimed back the deposit money.  By then, the applicant had changed into new shoes and clothes, and she had also discarded both her own used clothes and those of Huang and Yue.  The applicant had taken the deceased’s handbag and shared her money with Huang and Yue.  The applicant used her share of the money to buy the new shoes and clothes.

19. Huang and Yue left Hong Kong at about 10.30 p.m. on 19 June 2007.  The applicant left Hong Kong on 21 June 2007. The police managed to get in touch with her that evening.  After being told that the police was investigating the missing of the deceased, the applicant admitted knowing the deceased and had learned of her missing from a friend, but claimed that she did not know where the deceased was.

20. When contacted again on 23 June 2007, the applicant claimed that she did not know that the deceased was missing as she (the applicant) was working in the Mainland.

21. The applicant returned to Hong Kong on 25 June 2007, left for the Mainland again on the same day, and did not return until 18 September 2007 when she was arrested.

22. In subsequent interviews with the police, the applicant said that Huang had informed her over the telephone that the deceased was required to account to Pao for a large sum of money and that her assistance was required to arrange a meeting with the deceased.  The applicant said she thought the deceased would be asked to confess and return the money, but admitted that Huang had said that he would injure the deceased.

23. The applicant said she had asked Huang and Yue what would happen if the deceased refused to confess, the reply was that they would “do her in”, and “beat her to death”.  The applicant said that according to Huang and Yue, there was a chance of killing the deceased.

24. The applicant also said she noticed that Huang and Yue carried a large empty suitcase and she wondered what it was for, but she was told not to be bothered.  According to the applicant, Huang asked her to ensure that the deceased would drink a laced drink, which would cause her to tell the truth.

25. The applicant further said that upon arrival at Aberdeen with Huang and Yue in the early afternoon on 19 June 2007, they had refreshments in a nearby Kentucky Fried Chicken outlet, where a substance was added to a hot drink as the deceased only drank hot drinks.  When the applicant later met the deceased at her beauty salon, she gave her the laced drink and the deceased, after consuming the drink, gradually fell asleep, even slobbering as she did so.

26. After confirming over the telephone that the deceased was asleep, Huang came up to the beauty salon with Yue.  Huang then placed a hood over the deceased’s head whilst Yue strangled her with a wire.  The applicant said she saw blood coming out of the deceased’s nose or mouth.  Yue asked the applicant to bring in the suitcase from the rear staircase and they placed the deceased’s body inside.  The applicant said she was surprised and shocked at this sudden development, but she nevertheless went downstairs to hail a taxi at their request.

27. The applicant confirmed that Huang and Yue joined her later and put the suitcase with the deceased’s body inside into the boot of the taxi.  She then instructed the driver to drive to Stanley.  After they had alighted, they walked for a while before Huang and Yue dumped the suitcase into an open manhole near Regalia Bay.

28. There was evidence that the applicant, the deceased and Pao had a triangular relationship.  The deceased used to work in Pao’s clinic and they had lived together for many years.  However, the applicant had subsequently replaced the deceased in the clinic and there were quarrels when the deceased asked the applicant not to work for Pao.

29. The applicant admitted that she was affectionately linked to Pao and that they had sexual relationship.  She also said Pao had disappeared since 2007 and she thought the deceased knew his whereabouts.  However, she did not say that those matters had anything to do with the killing of the deceased.

The Defence Case

30. The applicant did not give evidence, but the suggestion was made that she did not intend or expect that the deceased would be killed or seriously injured and that her role was to administer on the deceased a laced drink which contained a “truth drug” so that she would tell the truth as to the whereabouts of the money/property owed to Pao.

31. The defence case was that when the deceased body was bundled into the large suitcase, the applicant believed that she was still alive and that she would be taken away to a location where she would be interrogated under the influence of the drug.

32. The defence accepted that the applicant was a party to a joint enterprise, but argued that it was not a joint enterprise to murder as she had no intention to kill the deceased and never expected her to be killed.

33. The applicant did not dispute and in fact accepted that the deceased had been murdered, but claimed not to be a party to the murder.  It was suggested that the action of Huang and Yue was outside what they had agreed with the applicant.

34. Counsel for the applicant at trial (Mr Donald) accepted that when Huang and Yue arrived in Hong Kong with a large suitcase, it was not difficult to infer that right from the start, it was their intention to kill the deceased.  However, Mr Donald suggested that it did not mean the applicant had the same intention.

35. Mr Donald emphasized in his closing submission that what the applicant told the police in the interviews did not support the prosecution case that she was a party to a joint enterprise to kill the deceased as she said she did not know or expect that the deceased would be killed.  Mr Donald argued that the applicant was only guilty of manslaughter.

36. The applicant called three witnesses, mainly concerning the issue of voluntariness of her statements given in the interviews.  The evidence of the defence witnesses, as accepted by Mr McCoy, had no bearing on the appeal.

The Summing Up

37. The judge summed up the case to the jury on the basis that the deceased had indeed been murdered and did not find it necessary to further direct the jury on that issue.  The judge concentrated on the issue of whether the applicant was a party to the murder.

38. The judge reminded the jury of the prosecution case that there was a prior agreement between the applicant, Huang and Yue to murder the deceased and in pursuance to the agreement the applicant actually took part, as a party to the joint enterprise, to murder the deceased by being present, encouraging and assisting Huang and Yue.  The judge further reminded the jury that the prosecution must prove an intention on the part of the applicant to kill or cause grievous bodily harm to the deceased at the time that the injuries which caused her death were inflicted upon her before they could convict her of murder.

39. The judge suggested to the jury that even if they did not find there was a prior agreement to murder the deceased, they could still convict the applicant of murder if she participated in a joint venture realizing (but without agreeing thereto) that in the course thereof Huang and Yue might use force on the deceased with intent to kill or to cause grievous bodily harm, and they in fact did so.  The judge directed the jury, on the “alternative basis” for conviction, in the following manner:

“The prosecution’s case is that the defendant committed this offence jointly with Huang and Yue. It had been planned beforehand and each of them was to play a different role in carrying it out. The prosecution say(s) that the defendant’s role was to lead Huang and Yue to Angie Ip and to render her insensible before Huang and Yue killed her. She was rendered insensible in order to make it easier for them to kill her…

If you are sure that the defendant intended Angie Ip be killed and you are sure that, with that intention, she took some part in carrying out her killing, along with Huang and Yue, then she is guilty of Angie Ip’s murder…

… when you come to consider the evidence, you may say to yourselves: ‘We are not sure that that was the agreement. We find that the defendant had not agreed that Angie Ip be killed. We find that she was being duped by Huang and Yue into believing that they were out to obtain information from her on this man Dr Pao’s behalf and that what she, the defendant, did was to assist them in that behalf. But we also find that while she was assisting, she realized, although without agreeing that it happen, that Huang and Yue might use force against Angie Ip with intent to kill her or to cause her grievous bodily harm – really serious bodily harm – and yet, with that knowledge, she still went along with the enterprise.’ What would the situation be then?

…And the law is this, (a) person is guilty of murder if he or she participates in a joint venture with another person, realizing, but without agreeing to it, that in the course of carrying it out that other person might use force against a third party with intent to kill them or cause them grievous bodily harm, and in fact does so.

That person has lent themselves to the enterprise and, by doing so, he or she has given assistance and encouragement to the other person in carrying out an enterprise which he or she realizes may involve murder. …

What the prosecution has to prove in those circumstances – in this case – is an intention to render assistance to the other person in the realization that the other person may deliberately kill or inflict serious injury on the third party.

This means, members of the jury, that if you find that the defendant whilst she was assisting Huang and Yue realized, without agreeing that it happened, that Huang and Yue might use force against Angie Ip with the intent to kill her or cause her grievous bodily harm – really serious bodily harm – and yet still, with that knowledge, rendered them her assistance, then she is guilty of Angie Ip’s murder.”

40. Prior to directing the jury on the aforesaid “alternative basis” for conviction, the judge had expressly raised the issue with counsel and both counsel indicated their agreement with the judge’s proposed directions to the jury. Mr Donald was given the chance to make further submissions, but he did not do so as he took the view that he had already covered the relevant points in his submissions.

41. In fact, the judge provided the jury with a written direction setting out the “alternative basis” upon which that the applicant could be convicted of murder in the absence of a prior agreement with Huang and Yue to kill the deceased as follows:

“The prosecution case is that (the) defendant was (a) party to an agreement with Huang and Yue to murder Angie Ip. The prosecution case is that she was in it from the start and it was always her intention that Angie Ip be killed.

But you may be saying to yourselves: We’re not sure that (there) was the agreement. We find that the defendant had NOT agreed that Angie Ip be killed. We find that she was being duped by Huang and Yue into believing that they were out to obtain information from her on Pao’s behalf and that she (the defendant) did what she did to assist them in that belief. But we also find that while assisting them she realized (without agreeing that it happen) that Huang and Yue might use force against Angie Ip with intent to kill her or cause her grievous bodily harm – really serious bodily harm and yet with that knowledge still went along with the enterprise – what would be the situation then?

The answer to the question what would be the situation then? Is that the defendant would be guilty of Angie Ip’s murder.

The law is this a person is guilty of murder if he or she participates in a joint venture with another person realizing (but without agreeing to it) that in the course of carrying it out that other person might use force against a third party with intent to kill them or cause them grievous bodily (harm) and does so.

That person has lent himself to the enterprise and by doing so he or she has given assistance and encouragement to the other person in carrying out an enterprise which he or she realizes may involve murder.

The participant is never himself going to have an intention to kill. Indeed he may hope or desire that the other does not kill, but what the prosecution has to prove in his case is an intention to render assistance to the other person in the realization that the other person may deliberately kill or inflict serious injury on the third party.

That means...that if you find that the defendant while she was assisting Huang and Yue realized (without agreeing that it happen) that there was a real risk that Huang and Yue might use force against Angie Ip with intent to kill her or cause her grievous bodily harm – really serious bodily harm, and yet still rendered them her assistance, then she is guilty of Angie Ip’s murder.”

42. The judge also referred to the three ingredients of the offence of murder, namely (1) the act of causing death; (2) the killing was unlawful; and (3) “…that at the time of the act or acts which caused Angie Ip’s death the defendant either intended to kill, or intended to cause Angie Ip grievous bodily harm – in other words, really serious bodily harm”.

43. The judge described the answers given by the applicant during the interviews as ambiguous and he had quoted two of her answers as an illustration.  The judge reminded the jury that they could only take the applicant’s answers into consideration if those answers were truthful.  The direction was repeated in the written directions to the jury.

44. The judge reminded the jury that if they thought that the applicant was telling the truth or might be telling the truth when she said that she was not aware and that she did not realize that Huang and Yue had intended to kill the deceased or to cause her serious bodily harm, then she must be acquitted of murder.

45. When the judge was about to conclude his direction to the jury, the foreman indicated to the judge that the jurors would like to have a written definition of manslaughter and murder.  The judge then left the court but directed the jury to remain in open court for about 20 minutes whilst copies of the written definitions were being made.

Grounds of Appeal

46. Arising out of the judge’s directions to the jury, Mr McCoy SC put forward a number of complaints.

47. Mr McCoy argued that the judge had erred not to have directed the jury that before they could convict the applicant of murder, they must first find Huang and Yue guilty of murder as, on the prosecution case, the applicant was only a secondary party.  Mr McCoy relied on R v Rahman [2009] 1 A.C. 129 and R v A (Joint Enterprise) [2010] 2 Cr App R 369 to support his contention.

48. Mr McCoy suggested that the judge should not have left to the jury a verdict based on the suggestion that the applicant was, at the time of the killing, a party to a joint enterprise to kill the deceased when the prosecution put its case “exclusively on the basis that the applicant was a party to an agreement, made well in advance with Huang and Yue, that they would come to Hong Kong to kill the deceased”. 

49. Mr McCoy argued that putting the prosecution case on a different basis than that of the prosecution without prior warning to the defence was a material irregularity resulting in prejudice to the applicant and therefore an unfair trial.  Mr McCoy relied on HKSARv Hau Tung Ying [2011] 2 HKLRD 782.

50. Mr McCoy also suggested that the judge, on the issue of joint enterprise, had misdirected the jury.  The suggestion was that the judge had not properly directed the jury on what Mr McCoy described as type 3 joint enterprise specified in R v Gnango [2011] 1 WLR 1414 when the judge had failed to specify to the jury that the applicant must have foreseen that death might be caused by Huang and Yue when she rendered assistance to them before she could be guilty of murder.

51. Mr McCoy emphasized that the applicant, in her statements, said that she was only helping Huang and Yue in an attempt to question the deceased without realizing that there was an intention to kill or to cause grievous bodily harm to her.  Mr McCoy argued that on that basis, the applicant was not guilty of murder, but only of manslaughter.

52. Mr McCoy further submitted that the judge erred on the question of inferences relating to the applicant’s realization/foresight of the “murderous intent” of Huang and Yue, by giving inconsistent directions. The suggested inconsistencies include the use of the words “realize” as oppose to “foresee” the murderous acts, the drawing of “proper” as oppose to “reasonable” inference and the “realization that force with intent to ‘murder’ may be used” as opposed to “realization that there was a real risk…that force might be used”.

53. In relation to the statements made by the applicant during the interviews, which was said to contain the applicant’s defence, Mr McCoy argued that when the judge directed the jury that the applicant’s answers should only be taken into account if they were truthful, the judge had breached the rule as laid down in Liberato v The Queen (1985) 159 CLR 507 and that such misdirection was not cured by the judge’s reference that the jury should disregard the applicant’s answers and admissions relied on by the prosecution if those answers and admissions were or might not be untrue.

54. Mr McCoy argued that without reminding the jury that if what the applicant said in relation to her defence was or might be true, they should acquit her, the summing up to the jury was inadequate and unfair.

55. Mr McCoy also suggested that the judge was wrong to have allowed the jury to remain in court without his own presence.  He argued that what the judge did constituted an irregularity although he did not suggest that there was any resulting prejudice to the applicant or any miscarriage of justice.

Discussion

56. The charge against the applicant was murder, not conspiracy to murder, as recognized by Mr McCoy.  The particulars of the offence alleged that the applicant, together with Huang and Yue, murdered the deceased on 19 June 2007.

57. Whilst it was the prosecution case that the applicant was a party to an agreement to kill the deceased, the prosecution did not confine its case to the suggestion that the applicant’s role was just a party to the agreement, made in advance with Huang and Yue to kill the deceased.

58. It was the prosecution case that not only was the applicant a party to a prior agreement to kill the deceased, she had also assisted Huang and Yue in killing the deceased when she realized that they might use force against the deceased with intent to kill her or cause her grievous bodily harm.

59. In his opening, Mr Marray, for the prosecution said: “the prosecution case is that these three people acted together to murder Sau-fun (the deceased) on or about 19 June, in Hong Kong, in the year 2007”.

60. Mr Marray further emphasized, in his closing speech to the jury, that “the prosecution case is that the three acted in concert, so they were a joint enterprise.  A joint enterprise is when two or more persons take part in criminal conduct.  Then, if that happens, each person is criminally liable for the acts done in pursuance of the joint enterprise. If the act is done in pursuance of the joint enterprise, or they are of a type which he or she foresaw as a possible incidence of joint enterprise, or he or she participated in the joint enterprise with such forethought…” (Emphasis added)

61. The judge reminded the jury that it was the prosecution case that the applicant committed the offence jointly with Huang and Yue; that it had been planned beforehand and each of them was to play a different role in carrying it out.

62. There was no valid basis for Mr McCoy’s suggestion that the prosecution had put its case “exclusively on the basis that the applicant was a party to an agreement, made well in advance with Huang and Yue, that they would come to Hong Kong to kill the deceased”.

63. The judge, in directing the jury of the further legal basis upon which the applicant could be found guilty of murdering the deceased, was simply reminding them, rightly in our view, that even if they did not find that there was a prior agreement to kill the deceased, the applicant could still be a party to the joint enterprise to murder the deceased if she had assisted Huang and Yue when they were using force against the deceased, knowing or realizing that they might use force against the deceased with intent to kill her or cause her grievous bodily harm.

64. On the evidence adduced by the prosecution, the applicant had arranged accommodation for Huang and Yue during their short stay in Hong Kong.  On the day of the murder, the applicant led Huang and Yue to the deceased’s beauty salon where the murder took place.  In the course of the journey to Aberdeen, Yue was carrying the large suitcase.

65. The applicant admitted that she was aware, at the outset, that Huang and Yue would harm the deceased, and of the possibility of killing her.  The applicant further admitted that, on the instruction of Huang and Yue, she gave a laced drink to the deceased to render her unconscious.

66. The deceased was drugged before she was killed. The applicant was present during the actual killing and she took the suitcase for Huang and Yue to put the deceased’s body.  The applicant arranged a taxi to go to Stanley where Huang and Yue, in the presence of the applicant, threw the deceased’s body in the suitcase into an open manhole in a drainage culvert.

67. The applicant helped Huang and Yue to get changed and disposed their used clothes and then accompanied them to check out of the guest house before they left Hong Kong.  The applicant took the deceased’s handbag and used her money to buy new shoes and items of clothes for herself.

68. On such evidence, it was simply unrealistic to argue that the prosecution case was confined exclusively to the suggestion that the applicant was just a party to the agreement, made in advance to kill the deceased.

69. The prosecution case and the only case that the applicant had to meet was that she was a party to a joint enterprise to kill the deceased.  The judge did not put the prosecution case on a different basis. The judge only provided the jury with directions to cover different factual basis which the jury could find proved on the evidence before them.

70. Mr Donald, in his final address to the jury, had repeatedly emphasized to the jury that if the applicant’s explanations were to be accepted, the killing of the deceased was outside the joint enterprise as she did not agree to and did not know/expect that the deceased would be killed.

71. Prior to summing up the case to the jury, the judge did provide the parties with copies of his proposed summing up to the jury.  The defence did not raise any objection to the proposed summing up.

72. The decision in Hau Tung Ying (supra) was not relevant and did not assist Mr McCoy’s argument at all.  The applicant was throughout aware of the prosecution case against her and she had had the opportunity to properly deal with it.  The applicant did not suffer any disadvantage or prejudice and the trial was a fair one.  The  main ground of appeal fails.

73. The judge, on the issue of a joint enterprise, directed the jury that a person is guilty of murder if he participates in a joint venture with another, realizing that in the course of carrying it out that the other person might use force with intent to kill or cause grievous bodily harm, and in fact does so.  With the specified allegation against the applicant, the judge said to the jury:

“That means that if you find that the defendant while she was assisting Huang and Yue realized (without agreeing that it happen) that there was a real risk that Huang and Yue might use force against Angie Ip with intention to kill her or cause her grievous bodily harm – really serious bodily harm, and yet still rendered them her assistance, then she is guilty of Angie Ip’s murder”,

and then

“The realization on the part of the defendant of what might be termed a fleeting risk, a remote possibility, is clearly not sufficient. It has to be the realization of a real risk, a real possibility that that thing might happen…”

74. The judge, on the issue of joint enterprise and in relation to the risk the applicant must realize to render her a party to the joint enterprise in fact initially said to the jury that the prosecution must prove “a realization that the other person might use force…with intent to kill or cause grievous bodily harm”; “giving assistance and encouragement (by the applicant)…in carrying out an enterprise which she realize may involve murder”; “an intention to render assistance in the realization that the others…may deliberately kill or inflict serious injury…”

75. It was at the suggestion of the defence and after discussion with counsel that the judge included the reference to “a real risk”.  Mr Donald expressly agreed with the way in which the judge proposed to direct the jury.

76. We have examined the judge’s directions to the jury on the issue of inferences and on the nature of the applicant’s realization/foresight of the “murderous intent” of Huang and Yue.  We do not agree with Mr McCoy’s suggestion that there was any conflict or inconsistency in those directions.  We do not agree with his suggestion that the judge’s directions to the jury on the issue of joint enterprise were erroneous or inadequate.

77. As pointed out by Mr Tam, counsel for the respondent, that when the judge directed the jury that they could only rely on the applicant’s answers given by her in the police interviews if they were satisfied that they were truthful answers, the judge was referring to the admissions which the prosecution sought to rely on to prove the applicant’s guilt.

78. The judge had referred extensively to the contents of the applicant’s statements made during the police interviews.  The applicant said after the deceased was rendered unconscious by the laced drink and after confirming that the deceased was asleep, Huang and Yue entered the beauty salon and they were both wearing gloves.  In her presence, Huang placed a bag over the deceased’s head whilst Yue strangled her with a wire taken out of his rucksack.

79. According to the applicant, the deceased then fell to the ground and there was blood coming out of her nose or mouth before Huang and Yue tied her ankles with a towel and put her into the suitcase.

80. The applicant said she did not raise objection when Huang and Yue put the deceased into the suitcase and instead had gone downstairs to hail a taxi after taking the deceased’s handbag.  She confirmed that Huang and Yue joined her at a later stage and placed the suitcase in the boot of the taxi.  She could not have expected the deceased to be able to survive in the suitcase after being strangled and tied up.

81. The applicant said she gave instruction to the taxi driver until they arrived at the Stanley Market and Huang then took over.  The applicant admitted that she was aware that the deceased’s body was in the suitcase when it was dumped into a drainage culvert.  Such evidence was also inconsistent with the defence case that the deceased would be taken away to a location where she would tell the truth under the influence of the drug.

82. The applicant further admitted that after disposing of the deceased’s body, the three of them took a taxi back to Causeway Bay.  After both Huang and Yue changed into fresh clothes, she threw away their used clothes.  The applicant, with money taken from the deceased, also bought herself new items of clothes, and changed into them in a toilet at the Times Square before throwing the old ones into rubbish bins.  The applicant’s conduct supported the prosecution case that she was indeed a party to the murder of the deceased.

83. It was doubtful whether what she said during the interviews, as a whole, could constitute a defence. How was it possible for Huang and Yue to question the deceased when the whole idea of administering the laced drink on the deceased was to render her unconscious and that it was after the deceased “had fallen asleep” that Huang and Yue would come up to the beauty salon? Why would she allow the deceased’s body to be placed in a suitcase which was then dumped?

84. As the judge pointed out, when the applicant said she was surprised and scared on seeing Huang putting the hood over the deceased’s head and Yue putting the wire around her neck, but could do nothing, could it be an indication that she realized as a serious possibility that Huang and Yue might kill the deceased.

85. The defence’s primary position was not that the contents of the applicant’s interviews provided a defence, but that they should not be relied on at all as she had been assaulted, threatened, tricked and coached to say what she said.

86. The judge had expressly directed the jury that they should not rely on anything said by the applicant during the interviews if there was any police violence or improprieties.  The judge further reminded the jury that the applicant did not say that she had realized that there was a real risk that Huang and Yue might murder the deceased, let alone an intention on the part of the applicant to have the deceased murdered.

87. When asked what she sensed would happen to the deceased before she went to her beauty salon, the applicant said:

“I think that he would let her finish the drink and then she would confess honestly and if she did not, what I thought was that ‘In extreme case you would only beat (her) up or punch her like that’ and that is what I sensed. If he said err, ‘To do her in’, I thought ‘Are you two insane? There is law in Hong Kong’. My position is as long as you tell me honestly that you are to do the truth/lie detection, this I will help you. I…you said you only require me to make an appointment with her. ‘I only want to ask her for the whereabouts of the money’, so my sense is, I would also like to help this friend to get back their- so called ‘their own thing’ in their mind, money.”

88. Mr McCoy argued that such an admission constituted a defence and that the judge had not sufficiently directed the jury and had not condescended to sufficient detail.

89. We do not agree with Mr McCoy’s submission that the judge had not adequately directed the jury.  Whether the judge’s directions on a particular issue are sufficient depends on the nature of the issue and the evidence supporting such it.

90. The defence, based on what the applicant said during the interviews, was tenuous and inconsistent with the rest of the evidence.  However, we accept that the applicant was still entitled to have her defence placed before the jury, although there were hardly any further particulars that could be condescended to when the records of interviews were all placed before the jury.

91. The judge did leave the alternative to the jury in accordance with the principle set out in Ho Hoi Shing v HKSAR (2008) 11 HKCFAR 354.

92. After identifying the defence position, namely that the applicant’s case was that “she believed the only purpose of the enterprise was to get Angie Ip to tell these two men the truth and that she never realized and she never intended that Angie Ip would be killed”, the judge said to the jury:

“These are matters that you as the jury – only you – can determine. If you believe or if you have any doubts about these matters, any doubts about intention, any doubts about realization – realization of real risk – then you must give the benefit of those doubts to the defendant. If you think that she is telling the truth or even may be telling the truth when she says that she was not aware and that she did not realize, then the defendant must be acquitted of the count of murder. There is no doubt about that whatsoever.”

93. In our view, such a direction relating to the applicant’s defence, on the fact of the case, was proper and adequate.  We are satisfied that the summing up to the jury was fair and balanced.  We do not accept that there was a breach of the rule laid down in Liberato v The Queen (1985) 159 CLR 507.

94. There could be no dispute that Huang and Yue had murdered the deceased.  The applicant never disputed that, but only claimed not to be a party to the murder.  In his address to the jury, Mr Donald kept reminding the jury of the important issue, namely: “Did the defendant know that the deceased was going to be killed?”, “Can you be sure the defendant knew that the two men from the Mainland were going to kill (the deceased)?” The judge’s approach was clearly consistent with the defence case.

95. The judge did not direct the jury that before they could convict the applicant, they had first to be sure that Huang and Yue were themselves guilty of murder.  It would have been better if the judge said that in terms, but as it was not a matter in issue and it was clearly implicit in the judge’s overall directions to the jury that they had to be sure that Huang and Yue killed the deceased with intent to kill her or to cause her grievous bodily harm, the judge’s failure to expressly direct the jury that they had to be sure that Huang and Yue were themselves guilty of murder is not significant. 

96. In our view, the evidence supporting the prosecution case that the applicant was a party to the joint enterprise to murder the deceased was overwhelming.

97. The applicant assisted the murderers immediately upon their arrival in Hong Kong by arranging for them to stay in a guest house. The applicant took the murderers to the deceased’s beauty salon where the murder took place, knowing that Yue was carrying a large suitcase, the purpose of which, on the facts of the case, was obvious. The applicant rendered the deceased unconscious by offering her a laced drink. After the deceased passed out, the applicant notified the murderers to come and in her presence, the murderers covered the deceased’s head with a bag and strangled her neck with a wire.

98. The applicant did nothing to stop or discourage the murderers. Instead, on realizing that the murderers had placed the deceased’s body into a suitcase after strangling her neck with a wire and covering her head with a bag, the applicant hailed a taxi so that the suitcase, with the deceased body inside, could be conveyed to a remote area in Stanley for disposal.

99. When someone puts a bag around victim’s head and strangles her neck with a wire before putting the body into a suitcase, it is simply not open to any suggestion that there is no intent to kill or to cause serious bodily harm to the victim. The fact that the deceased’s body was abandoned in Stanley did not support the applicant’s case that she foresaw that the deceased would still be alive and taken to another location for questioning.

100. The evidence suggested that after the killing and the disposal of the deceased’s body, the applicant accompanied the murderers back to the guest house and assisted them in getting rid of the clothes that they were wearing at the time of the murder. The applicant took the deceased’s handbag and used her money to buy new items of clothes and shoes for change and discarded the old ones.

101. In the afternoon of 20 June 2007, one day after the murder took place, the applicant telephoned the deceased’s sister (Madam Ip) saying that she had seen the deceased at about 1 p.m. the previous day when she went to her salon to show the deceased a letter. The applicant said she left the salon two hours later. The applicant also said she could not reveal the content of the letter or someone would die.

102. The applicant later told Madam Ip over the phone that the letter came from a friend in Seattle, and although the deceased did not know the person who wrote the letter, she wanted the deceased to advise her on the letter and about going to a fortune teller and seeking guidance from the spirits.

103. The applicant further told Madam Ip not to worry as the deceased had only been missing for a day.  When Madam Ip telephoned the applicant on 21 June 2007, seeking help to find the deceased, the applicant indicated that she was willing to do so.

104. When attempts were made by the police to contact the applicant in the evening of the 21 June 2007, the applicant was already in Guangzhou.  After being told that the police was investigating the missing of the deceased, the applicant said she knew the deceased and had learned that she was missing from a friend, but she did not know where she was.  The applicant further told the officer that she could not return to Hong Kong as she was working.

105. When contacted again on 23 June 2007, the applicant said she did not know that the deceased was missing as she was working in the Mainland.  What the applicant did was inconsistent with her defence that she did not intend or expect that the deceased would be killed.

106. On the evidence, there was no question of the applicant agreeing with Huang and Yue together in one crime and in the course of it, Huang and Yue committed a second crime. The prosecution case, as accepted by the jury, was that the applicant was a party to the joint enterprise to murder the deceased.  The cases of R v Gnango [2011] 1 WLR 1414 and R v A and Others (Joint Enterprise) [2010] 2 Cr App R 369 did not assist the applicant’s case.

107. In our view, no reasonable jury would come to any other conclusion than that the applicant was a party to the joint enterprise to murder the deceased.

108. On the undisputed prosecution evidence, the applicant was also clearly guilty of the 2^nd charge of preventing the lawful burial of the deceased’s body and Mr McCoy did not seek to argue otherwise.

109. Mr McCoy complained about the judge allowing the jury to remain in court in the absence of the judge himself when copies of written directions were being prepared.  The judge should not have done so and Mr Tam agreed.  However, such a course was not objected to and there was no suggestion of unfairness or miscarriage of justice arising out of what the judge did, we therefore propose not to say anything further.

Conclusion

110. The applicant was properly convicted of both charges.  There is nothing unsafe or unsatisfactory about the conviction.  The application for leave to appeal against conviction is dismissed.  As the applicant had abandoned her application for leave to appeal against sentence, that application is also dismissed.