HKSAR v. YUEN SHUN YING

CACC 273/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 273 OF 2003

(ON APPEAL FROM HCCC NO. 290 OF 2002)

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REASONS FOR JUDGMENT

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Hon Woo VP (giving the reasons for judgment of the Court):

Introduction

1. The applicant faced a charge of murder, contrary to Common Law and punishable under section 2 of the Offences Against the Person Ordinance, Cap 212. The particulars of offence were that on or about 30 March 2002 at a flat in a housing estate in Tin Shui Wai, New Territories, she murdered Chan Wing-sun.

2. She was tried before Gall J and a jury in the Court of First Instance. On 16 June 2003, the jury found her guilty of the offence as charged and the judge proceeded to impose the mandatory sentence of life imprisonment on her.

3. The applicant sought leave to appeal against conviction and sentence. Before us, on the advice of her counsel, Mr McGowan, that the sentence was mandatory, she abandoned her application in respect of sentence, which was accordingly dismissed.

4. At the conclusion of the hearing, we dismissed the application regarding conviction. Our reasons appear below.

The facts

5. For the purposes of this application, the following facts appear not to be in dispute, namely,

(1) The deceased was the boyfriend of the applicant.

(2) In the night of 3 April 2002, the applicant's brother-in-law received a telephone call from her. As a result he visited her in her home, which was the flat stated in the charge. The applicant had cut wounds to her left wrist and claimed to have taken a large dose of sleeping tablets. Ambulance men and firemen arrived and took her to Tuen Mun Hospital where she was admitted at 1.35 am on 4 April 2002.

(3) The body of the deceased was found in the flat on a bed with hands and legs tied and his mouth and nose sealed over with 15 strips of adhesive tape. The deceased was certified dead from suffocation.

6. A police party visited the applicant in the hospital and at 2.55 am on 4 April 2002 took an oral statement from her under caution, finishing at 3.10 am with her arrest. This was the first statement taken from her.

7. At 3.30 am, the applicant was transferred to the intensive care unit of the hospital because of concern about her blood pressure, which was 74/43.

8. At 3.45 am, Detective Sergeant 17257 post-recorded the first statement in his notebook. This post-record was read and signed by the applicant at 2.30 pm on 5 April 2002 at Tin Shui Wai Police Station. This was the second statement.

9. Some time before 11.00 am on 5 April 2002, the applicant was discharged from the intensive care unit back to the general ward. She had been given her third of the 8-hourly dose of Zantac (Ranitidine) pills at 8.00 am. At 11.00 am, the police requested access to the applicant, and permission was given by Dr Ng Ka-yam after "clinical check".

10. At 1.29 pm on 5 April 2002, the applicant was released into police custody. She was taken to Tin Shui Wai Police Station.

11. At Tin Shui Wai Police Station, the applicant read and signed a Notice to Persons in Custody at 2.10 pm.

12. As said before, at 2.30 pm, the applicant read and signed the post-record at the station.

13. Later, at 2.58 pm at the station, a video-recorded interview was conducted with the applicant. This was the third statement given by the applicant.

14. The applicant was returned to the hospital sometime before 6.30 pm.

15. Later on that day, at 8.13 pm, when the police visited her at the hospital and read her the charge of murder, she gave an answer. This was the fourth statement made by her.

16. A voir dire was conducted before the judge in the absence of the jury to decide on the admissibility of the four statements.

17. After hearing evidence in the voir dire, on 9 June 2003, the judge gave his ruling. He ruled that the first statement (made at the interview at 2.55 am on 4 April 2002) and the second statement (the post-record of that oral statement signed by the applicant in the afternoon of 5 April 2002) to be inadmissible. He ruled that the third statement and the fourth statement were admissible.

18. In a statement of admitted facts, pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221, dated 11 June 2003, signed by counsel for the prosecution and for the applicant, the third statement was included as an agreed fact. Moreover, it was also admitted that pieces of adhesive tape recovered from the deceased's right hand bore the fingerprint of the applicant's right index finger, and pieces of adhesive tape recovered from the deceased's face bore the fingerprint of her left ring finger.

Grounds of appeal

19. On behalf of the applicant, Mr McGowan raises two substantive grounds of appeal in support of his contention that the conviction was unsafe and unsatisfactory. The grounds are as follows:

(1) The judge erred in finding that the applicant's video interview and "response to charge" were voluntary; and

(2) further or in the alternative, the judge erred in failing to consider his residual discretion to exclude the said "admission" on the grounds of "fairness".

Ground (1)

20. The judge had directed the jury on the law and the facts relating to murder, intention to kill and cause grievous bodily harm, diminished responsibility because of mental abnormality, and provocation. Mr McGowan does not dispute that the judge had made no mistake in his summing-up to the jury in all these various aspects of the case.

21. The main thrust of the grounds of appeal is directed at the judge's admission as evidence of the third statement, ie the video interview, in which the applicant made certain admissions. Mr McGowan contends that the admissions could have been taken as confessions to murder and as evidence rebutting both diminished responsibility and provocation. He refers us to the following passages in the summing-up:

"Now, there has been produced the video of the interview the police had with the accused and the answer to charge. The prosecution say, although you should not accept everything that she says in the statement to the police, nevertheless that the interviews contain admissions by the accused that she drugged him with sleeping tablets, that she tied him at the wrists and ankles and across the back at the elbows, and that she had taped over at least his mouth, because it is not clear from that statement that she admits to taping the whole of the face, so that he suffocated. And the prosecution further contends that those admissions are true.

The accused says that, yes, she did say the things which are on the tape but she did so in an emotional and confused state and that she cannot recall what she said to the police or, indeed, all that occurred when the death of the deceased took place and that therefore you should not rely upon what is on the tape.

She says also that she had come from the hospital and was not in a fit condition and that by not being in a fit condition, she was overwhelmed by the presence of the police and said things which she now says are not true or cannot be accepted by you as being true because of her condition." (Transcript pp 5Q-6I)

"They [the prosecution] point you to her admissions and say that this is sufficient for you to infer, taking all that has happened, that she intended to kill the deceased or cause him really serious harm and he died as a result." (Transcript p 26M-O)

22. It is important to put in proper context what was said by the applicant in the interview. During the interview, she started with her relationship with the deceased, saying that it was a "super-friendship" relationship. They were both working in the same restaurant warehouse in Tsuen Wan. Their last day at work was 28 March 2002 and they had two leave days following. On 29 March 2002, they went to Tsimshatsui, and as promised by the deceased, he bought her a diamond ring. When they returned to the flat, she prepared dinner, and after finishing dinner, the deceased started to tell her that he wanted to break up with her. She had prepared a large pot of stewed soup of pork shin and medicinal deer's tail. Then came the important passage that was volunteered by the applicant, without any prompting from Senior Inspector Poon who conducted the interview, at item 336 of the transcript of the interview:

"Then I prepared the stewed soup - I had made the stewed soup earlier. [A: Yes.] When he was watching TV, I made use of the opportunity and put some sleeping pills into the soup, [A: Yes.] so that he could not quite have the ability to put up resistance after he consumed it. [A: Yes.] I then tied up his hands (and) legs. [A: Yes.] Then (I) sealed his mouth [A: Yes.] and sealed his nose. [A: Yes.] And (he) suffocated and died just like that."

[A denotes Senior Inspector Poon and C denotes the applicant.]

23. It can be noted that the above passage of the applicant's utterance related mainly to her actions. There was little indication by her of her intent. Only the following passages in the transcript of the interview could be said to have a bearing on her intent:

"I did not want to do that. I would rather be the one who died." (Item 388)

"He died so miserably." (Item 406)

"I can imagine how miserable it was. Why was I so cruel?" (Item 414)

"I was thinking of dying together." (Item 624)

24. During the interview, the applicant also disclosed in some detail that after the event of sealing the deceased's mouth and nose, she cut her wrist a number of times in order to kill herself and that she went to two doctors and a pharmacy to buy a large number of sleeping pills to kill herself. But she failed. She left a note to her husband to take care of their two young sons and she had also written a note so that her family members could press a person who had borrowed money from her to repay the money.

25. Mr McGowan refers us to various passages in the evidence in the voir dire. Significantly, Mr McGowan draws our attention to the evidence of VDPW7 Dr Ng Ka-yam, who had been on duty in Tuen Mun Hospital on 5 April 2002 when a number of police detectives came to the hospital shortly before 11 am and asked if the applicant was fit enough for statement taking. Dr Ng checked her condition and "made clinical judgement that she was suitable or fit ... at that time" and she was "fully conscious" by both subjective and objective tests. At about 1 pm, he was paged and asked if the applicant could be taken out from the hospital; he considered she was fit for this without further examination. Dr Ng "definitely did not" consider that she was affected by the drugs including Ranitidine she had been given at 11.00 am but considered that it was possible she might have been affected later when actually interviewed and these might have had some impact on her mental state. One of the drug's possible side effects was to cause a "reversible confusional state".

26. Mr McGowan also refers us to the evidence of Dr Tang (VDPW9) who said that "Ranitidine may cause the confused state mentioned in the book" and that could suddenly arise after several injections. He said that, based on 6 years' "limited" experience, he had not come across such confusion cases.

27. Mr McGowan also stresses that Dr Sin (VDPW8) had agreed in evidence that a medical note showed that the applicant's "General condition (was) critical" at 7.35 pm on 5 April 2002, about one and a half hours after she returned to the hospital from the police station.

28. Moreover, VDPW10 Wan Man-leung, the applicant's brother-in-law, gave evidence that when he saw her in Tin Shui Wai Police Station shortly before the interview, "she appeared to be a different person" and "her eyes looked like a sick person". He was not sure if she could recognise her sister.

29. On the other hand, VDPW1 Detective Sergeant 17257 said that when he saw the applicant in the police station at 2 pm on 5 April, "she was conscious with spirit. She could speak and walk. But for speaking she spoke slowly. She appeared to be unhappy and ... in anxiety." He further admitted that she appeared "slightly" to be unable to write anything.

30. VDPW11 WPC 56350 guarded the applicant after her arrival at Tin Shui Wai Police Station in the afternoon of 5 April 2002 and "found her to be normal" although the witness agreed that she was tearful "sometimes and for sometimes she was sleeping" and did not speak at all.

31. The applicant's evidence in the voir dire was that she felt "very uncomfortable", "dizzy" and "confused" before the video interview. She wished the police would let her go as soon as possible, she was suicidal and unable to resist the police, and indeed she "just did what the police told [her] to do" and continuing with the interview because she was "afraid he would not let [her] go".

32. In his ruling at the conclusion of the voir dire, the judge said:

"... Mr Haynes [counsel for the applicant at the trial] did refer to an overall oppression in the manner in which the statements were taken but that goes, I think, far more to fairness than it does to oppression, I am satisfied that police officers acted throughout in a proper and conscientious manner. No complaint can be made of their conduct.

... I am satisfied from all that has been said that the prosecution has not disproved that she [the applicant] had taken sleeping pills - whether or not in all the circumstances it was fair that a statement be taken from her at 2.55 in the morning [of 4 April 2002].

I am not satisfied. I have not been made sure that her condition at that time was that she fully appreciated the nature of the interview, the reasons for it and her rights in respect of it; and that interview at 2.55 and the accompanying post-record I find to be inadmissible.

Having found that, I do not suggest that the officers themselves acted unfairly. They acted having been told by the medical officers at the hospital that she was fit for interview. Physically, that might have been so. But the doctors did not make any sort of finding that she was fit to properly comprehend her rights and the situation around her. She was alert for their purposes but not necessarily for the purposes of taking a statement.

The same does not apply to the taking of the video-recorded interview. At that point, while she was under the - I won't say 'influence' - but under the treatment of a drug called Ranitidine, I am satisfied from all that I have heard and seen on the tape, which we have watched in full, that she was fully cognizant of what was happening around her and was able to comprehend fully her rights.

...

It is true that she was in an emotional state, but that was not such, in my view, as to render her incapable of understanding her rights and what was going on about her and to competently and properly answer questions.

I am satisfied to the required standard that the video-recorded interview is admissible, and similarly, the answer to charge." (Transcript pp 262T-264B)

33. In respect of ground (1), contending that the judge erred in finding that the applicant's statements in the video interview and response to charge were voluntary, Mr McGowan submits as follows. The mere fact that a number of witnesses, VDPW1, VDPW10 and VDPW11, spoke as they did of what they had observed of the applicant, particularly coupled with the evidence of VDPW7 and VDPW9 that the drugs regime she was under may have affected her, should have raised at least a reasonable doubt as to whether the applicant's mind truly went with her actions and she was able to make proper critical and crucial decisions. Mr McGowan further submits that the absence of any medical "clearance" for the applicant's removal from the hospital should have reinforced this doubt. It cannot, Mr McGowan contends, be safe to rely on VDPW7's actual check on the applicant about 11 am to determine some time after 1 pm that she was fit to be allowed to leave the hospital, let alone be interviewed at length without further examination. He submits that the views about the applicant's medical and mental condition that afternoon can only be speculative in the absence of medical evidence and cannot be safely ascertained from a videotape which in itself reveals little of the applicant's true condition. He submits that if such speculation is necessary, a doubt must exist.

34. What Mr McGowan contends is that according to the evidence of various witnesses given in the voir dire, the judge should have entertained a reasonable doubt as to the voluntariness of the applicant in making her statements in the interview. For this ground to succeed, it must be shown that the judge could not be sure, without any reasonable doubt, that the applicant made the statements in the interview voluntarily, and that the following did not occur: she was so confused or so much affected by the drug Ranitidine that she did not know what was going on, she did not fully comprehend her rights, and even that she did not know what she was saying.

35. However, right at the commencement of the interview, she was told by the interviewing Senior Inspector that she could refuse to answer questions. She said she understood. That was at items 41-46 of the transcript of the interview. When she was reminded of the caution later on, she was asked if she understood, and her response was "what I said is all true". Those were at items 611 to 614 of the interview transcript. She was also asked whether what she had said was the whole truth of everything that had happened in the incident, and she said "Yes". Then the following question and answer took place:

"689.A: Right. Er (original in English) - was what you said just now all said by you of your own free will?

690.C: Yes."

[A denotes the Senior Inspector and C denotes the applicant.]

36. Close to the end of the interview, the Senior Inspector showed the applicant a note addressed to her husband found in the flat. She volunteered to say that she wrote the note (item 817 of the interview transcript). Following that, she volunteered the information on one more piece of paper written by her on a calendar paper, which was intended to let her family members know that a person had borrowed money from her and she wanted them to press that person for repayment (items 819 to 829 of the interview transcript).

37. Indeed, the important passage of the actions she took to cause the death of the deceased at item 336 of the interview transcript was all volunteered by her after she had told the Senior Inspector that the deceased had bought a diamond ring for her as he had promised. There was no prompting, and the questions put to her before her admission of the actions were not even directed at the death of the deceased.

38. The transcript of the voir dire proceedings shows a number of questions the judge asked of the medical practitioners about the condition of the applicant at different times and the drugs that had been applied to her and their effect. The judge was obviously very careful in ascertaining from the medical witnesses the medical condition and state of alertness of the applicant at every stage in order to decide on the admissibility of her statements. The judge not only had the advantage of the transcript of what was said at the interview, he also watched the videotape in full. He came to the conclusion that he was satisfied that the applicant was fully cognisant of what was happening around her and was able to comprehend fully her right.

39. One can have a glimpse of the judge's reasoning in admitting the record of interview from his summing-up to the jury, which reasoning we find well justifies his ruling. Apart from referring to the details that the applicant gave in the interview about the purchase of the diamond ring and about the calendar paper note regarding the debt owed to her, which showed her memory and state of mind, the judge also said:

"Other matters that you would consider are, how did she deal with the questions in the interview. And there some slightly surprising things can emerge if you have a close look at the transcript. For example, ...

'Q.	You husband is jobless. You? How about you? What did you do before?
A.	Can I not mention that?
Q.	Why? You - what problems do you have about your job?

[No reply.]

Q.	I don't quite understand what you mean.
A.	I do not want to ruin the reputation of my company.'

Now, that indicates perhaps - and it is a matter for you - that she might have been sufficiently alert and reasoning, not just to be thinking about her own circumstances, but she is actually thinking about mentioning the name of her company might hurt its reputation which, you might think, is a reasonably alert and reasoning attitude to have." (Transcript pp 8P-9F)

40. We are dealing with a very experienced judge's decision on facts and his assessment of the evidence that he heard. Unless he is demonstrably wrong or he had failed to take into account evidence that is contrary to his findings, this Court would be very reluctant to interfere.

41. Blair-Kerr J's observations in R v R E Low [1961] HKLR 13, at 82 regarding a District Judge's decisions on fact, followed by this Court in HKSAR v Choi Man-wai, CACC 126/2000 (27 Oct 2000), at pp 6D-7D and HKSAR v Lee Hon-shun, CACC 626/1999 (13 March 2001), at p 6L-T are applicable. They read as follows:

"... But an appellate court would not, except in the most exceptional circumstances, interfere with a finding which depended on the credibility of a witness; and, when the District Judge draws inferences of fact, which inferences depend not only on an examination of documents and facts which are not in dispute but also depend partly on the credibility of witnesses and facts which were very much in dispute, then I think an appellate court should act with the greatest caution before interfering with the District Judge's findings if, having regard to the whole of the evidence, such findings appear reasonable."

42. Obviously, the judge was fully satisfied that what was said by the applicant in the interview was voluntary, because right at the commencement of his ruling, he clearly reminded himself that

"The onus is upon the prosecution to prove that any statement attributed to an accused which it seeks to place in evidence is voluntary and the circumstances in which it was obtained were fair." (Transcript p 262C-D) (Emphasis added)

43. We have no doubt that the judge had fully considered the evidence before him in the voir dire and come to the conclusion that he did. His conclusion shows no unreasonableness. We consider ground (1) has no substance.

Ground (2)

44. Ground (2) challenges the judge's ruling to admit the applicant's statement in the interview and her response to the charge for his failing to consider the exercise of his residual discretion on the ground of "fairness".

45. The effect of Mr McGowan's submissions in this regard is that the judge had not specifically mentioned that he had considered his residual discretion in excluding the admissions of the applicant on the ground of unfairness. Moreover, he submits that had the judge considered that residual discretion, he should have excluded those statements.

46. In SJ v Lam Tat-ming & another [2000] 2 HKC 693, where the question on appeal before the Court of Final Appeal concerned the scope of the judge's residual discretion to exclude a voluntary confession made by an accused to an ICAC officer when the accused was not under arrest or in custody and was unaware that he was making an admission to a law enforcement officer. Li CJ gave judgment of the court with which all other judges agreed. Regarding the residual discretion as underlined by the accused's right to a fair trial, the learned Chief Justice said at pp 702G-703D:

" The judge has the overriding duty to ensure a fair trial for the accused according to law. For this purpose, he has what should be regarded as a single discretion to exclude admissible evidence, including a voluntary confession, whenever he considers it necessary to secure a fair trial for the accused. The essential question is not whether the law enforcement agency has acted unfairly in a general sense. It is no part of the court's function to exercise disciplinary powers over the law enforcement agencies or the prosecution as regards the way in which evidence they seek to adduce at trial was obtained by them. See R v Sang at 436G (Lord Diplock); R v Cheung Ka-fai [1995] 2 HKCLR 184 at 195 line 40 (Litton VP). The court's function is to consider whether it would be unfair to the accused to use the confession though voluntary against him at his trial.

The test of unfairness is not that of a game governed by a sportsman's code of fair play. See R v Sang at 456D - E; R v Swaffield (1997-8) 192 CLR 159, 185-6, para 35 (Brennan CJ). Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused. R v Sang at 453C (Lord Scarman); R v Scott [1989] AC 1242, 1256A-B. However, it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent. See R v Sang at 437B (Lord Diplock), 456E-F (Lord Scarman); Attorney-General v Lam Man-wah (No 2) [1992] 2 HKC 70 at 72C.

The requirement of a fair trial for the accused involves the observance of principles including the following which are relevant in this appeal: (1) No man is to be compelled to incriminate himself; his right of silence should be safeguarded. (2) No one can be convicted except upon the probative effect of admissible evidence. To ensure a fair trial for the accused, the court will exclude admissible evidence the reception of which will compromise these principles. R v Sang at 436H-437D (Lord Diplock) and 455C-E (Lord Scarman)."

47. What Mr McGowan challenges is not that the admission of the applicant's statement was unfair by way of the little probative value of the evidence under principle (2) referred to in the last passage cited above. His complaint is that the admission was unfair to the applicant in the sense that a fair trial for the applicant had not been ensured.

48. Although the judge did not specifically mention that he was considering whether he should exercise his residual discretion on the ground of fairness, he was in fact doing so when examining the evidence and all the surrounding circumstances when making his ruling, as apparent from the following passages:

"The onus is upon the prosecution to prove that any statement ... is voluntary and the circumstances in which it was obtained were fair." (Transcript p 262C-D)

"Mr Haynes did refer to an overall oppression in the manner in which the statements were taken but that goes, I think, far more to fairness than it goes to oppression." (Transcript pp 262T-263A)

"... the prosecution has not disproved that she had taken sleeping pills - whether or not in all the circumstances it was fair that a statement be taken from her at 2.55 in the morning." (Transcript pp 263D-E)

(Emphasis added)

49. On behalf of the respondent, Mr Madigan draws our attention to the following passages in the transcript of the voir dire proceedings to make his point, we think correctly, that the conduct of the voir dire was highly unusual in that it appeared to be common ground that voluntariness was not an issue, but the only issue in dispute was the question of fairness. The passages read as follows:

"COURT: It [the video tape] is an accurate record. The issue is whether her condition was such as to make its taking unfair.

MR LO [for the prosecution]: Of course.

COURT: No issue has been taken by Mr Haynes as to pressure, as to threats, as to inducements. The only sole issue was her condition such at that time that to take any statement in those circumstances was unfair in the overall context of the trial." (Transcript p 256D-G) (Emphasis added)

50. Mr Madigan further submits that although the judge never uttered the words "residual discretion" throughout his ruling, the ruling just does not make sense if it is not read with the test relating to the exercise of that discretion in mind. The very fact that the judge has excluded the verbals (ie, the first statement and the post-record of it) because he was not satisfied that it was fair and then gone on to find the video interview admissible on the same test cannot mean anything but that he was aware of the residual discretion and that he exercised it. The ruling is about residual discretion and nothing else. We agree.

51. Mr McGowan further submits that even if the judge had considered his residual discretion, he erred in failing to exercise it in favour of the applicant. Mr McGowan refers us to the following facts as the basis for his contention that the judge had made the error:

(a) The applicant was recovering from a suicide attempt and indeed had been in intensive care for one day;

(b) she had already been arrested for murder;

(c) the applicant remained under police guard in the hospital;

(d) there were, apparently, no other suspects;

(e) there was no danger that vital evidence might disappear or be compromised; and

(f) there was no other person in danger.

52. Although Mr McGowan states in open court that he does not assert that the police in conducting the interview with the applicant were deliberately or consciously "unfair" to her, he contends that there was clearly no overwhelming operational reason in the circumstances to demand that the applicant had to be interviewed when she was.

53. What Mr McGowan complains about is the speed of the operation of the police in interviewing the applicant in the afternoon of 5 April 2002. But one must not forget that the police were investigating a murder case. The applicant, as was known by the police, was taken to Tuen Mun Hospital for treating the effects of her suicide attempt. The police had already obtained something of a confession orally in the early hours of 4 April 2002. They had waited for nearly 34 hours after her admission to hospital to seek an interview with her at the police station. Commonsense would indicate that the further away a person is from the initial effects of a failed suicide episode, with improving condition from treatment in the interval, the better the person would be both physically and mentally ready and able for an interview. On the other hand, investigation of crimes needs to be swift and timely, and the longer the delay, the greater the risk of crucial evidence being lost. The complaint of Mr McGowan, and any complaint that could be raised, was that the applicant might still have been confused or affected by the drugs given to her for treatment, including Ranitidine, which according to the medical evidence, is but an acid production depressant for treating stomach problems. The police went to the hospital to seek to take the applicant to the police station for an interview, and permission was given, after the doctor considered her fit for the purpose. There was no disregard of the applicant's condition at the time by the police. The interview started over 37 hours after her admission in the hospital. In all the circumstances, we are of the opinion that there can be no justifiable complaint against the police's efficiency or vigilance, nor would such conduct of the police render the trial of the applicant unfair.

54. Mr McGowan is not only challenging the judge's finding of fact in his conclusion that he was satisfied that it was fair to admit the interview record and the applicant's response to the charge. Even on this, according to R E Low, he faces great difficulty in inviting this Court to interfere. But Mr McGowan is asking us to interfere with the judge's exercise of his exclusionary discretion. He has fairly drawn our attention to a passage in para F2.2 of Blackstone's Criminal Practice 2003, which now appears on p 2013 of the 2004 edition. It reads:

"... the Court of Appeal will not lightly interfere with judicial exercise of the discretion. ... the Court of Appeal will not interfere unless:

(a) the judge has failed even to consider exercise of the discretion, in which case the appeal court may exercise its own discretion ...: or

(b) he has erred in principle, or there is no material on which he could properly have arrived at his decision ..."

55. It is crystal clear that the judge had fully considered the question of "fairness" in the sense enunciated by the Chief Justice in Lam Tat-ming, and it is therefore not for this Court to exercise its own discretion.

56. Mr McGowan has not argued that the judge, in exercising that discretion, had erred in principle or there was no material on which he could properly have arrived at his decision, nor can we find any indication in his ruling that either had occurred.

57. The judge in his summing-up to jury has, at the passage at p 6C-I of the summing-up cited above, fully put forward the applicant's case regarding the video interview to the jury. He also very fairly put the applicant's case squarely to the jury as to her intention in covering the face of the deceased with strong adhesive tapes. He said:

"Mr Haynes reminded you of the evidence of the accused - that she merely wanted him to go to sleep, wake up happy, and not leave her, and that later when she heard him murmuring, she put, she said, the masking over the mouth, intending to do no more than to stop him from speaking and saying the words that he would leave her. We know, in fact, that she didn't just put the tape over the mouth. She put it over the whole face. Her evidence is not clear as to why that happened or how that happened because she says, 'I can't remember. I was in such a state. I don't know.' You are entitled to look at the facts and see what you can infer from all her conduct and all she has said and done and see whether you are sure as to her intent." (Transcript p 28G-M)

58. In our judgment, the judge was fully entitled to admit the record of interview as well as the applicant's response to the charge as he did at the conclusion of the voir dire. The judge was extremely fair to the applicant, in that he excluded her admissions to the police which she gave in the hospital at 2.55 am on 4 April 2002 and the post-record of those oral admissions that had even been read and signed by her in the afternoon of 5 April 2002. The stated reason for excluding those statements was that the prosecution had not disproved that the applicant had taken sleeping pills shortly before that time and the judge was not sure that in all the circumstances it was fair for those statements to be taken from her so soon after she was admitted in the hospital. In our view, the judge was fully appreciative of the medical, mental and emotional condition of the applicant at the video interview. He dealt with the admissibility of the applicant's admissions at various stages with the utmost care and fairness. Whenever he entertained any doubt that it would not be fair to her "in the overall context of the trial" he excluded her admissions, ie, the first and second statements. His treatment of the applicant's case in his summing-up to the jury was no less fair and proper. There is no substance in ground (2).

Conclusion

59. For the above reasons, we find nothing in the judge's ruling to admit the relevant statements that makes the conviction unsafe or unsatisfactory. The application must be dismissed.