HKSAR v. SO KAM TONG

CACC 99/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 99 OF 2010

(ON APPEAL FROM HCCC NO. 250 OF 2009)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

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

1.  This applicant was tried before Beeson J and a jury upon an indictment which alleged that between 12 and 15 October 2005, at Revenue Tower at Gloucester Road, Wanchai, he murdered Charitar Kamolnoranath.

2.  On 9 March 2010, he was found guilty and he now applies for leave to appeal against conviction.

3.  Mr Loughran appears on his behalf to assist where possible, though not to advance grounds of appeal. The only grounds of appeal that have been submitted are those by the applicant himself, originally merely to say that he was not happy with the conviction but today a relatively lengthy document which particularises a series of complaints, some concerning the summing-up, some relating to alleged conduct by the police, and a list of other matters.

4.  In October 2005 the deceased was in Hong Kong on a holiday.  At about 2 p.m. on the 12^th day of that month she went to Revenue Tower to obtain a manual from the Television and Entertainment Licensing Authority for her boyfriend who was then working in Hong Kong.  Thereafter her boyfriend lost contact with her and a missing person report was made to the police who discovered that on 14 October 2005 someone had tried to use the deceased’s credit card at an ATM machine in Tai Wo.

5.  Her body was discovered on 24 October 2005 on top of a unit in a room known as the AHU room on the 33^rd floor of Revenue Tower.  An autopsy was performed and it was concluded that the deceased had died as a result of suffocation and the effects of a knife wound to the right side of her chest.

6.  About three years later, on 6 June 2008, a man named Kwok told the police that he had assisted the applicant to move the deceased’s body and it was as a result of information which he provided that the applicant was arrested.  Kwok, who testified under immunity, was the main prosecution witness.

7.  The two men had worked in or before October 2005 at Revenue Tower for a company that used, amongst other things, the kind of cable which was used to tie the deceased’s hands.  Kwok testified that in mid-October 2005, the applicant asked him to accompany him to the AHU room which he did.  There, the applicant cleared away some paper and squatted down and Kwok saw the deceased lying horizontally with her face down on the floor and a plastic bag over her head.  The applicant took out a knife from a bag which he carried and used it to clear away some paper.  Kwok then assisted the applicant to move the woman to the top of a unit in the room.

8.  Some time later, Kwok had a meal with the applicant during which the applicant told him that on the day in question he had waited in a lift in Revenue Tower for an opportunity to rob someone.  He was carrying a knife.  Eventually, he and the deceased were alone in the lift and when the deceased was about to leave the lift, the applicant took out the knife and dragged her to the AHU room where she began to struggle and, according to the applicant, he accidentally injured her.  He took her credit card to an ATM machine at Tai Wo Shopping Centre but the attempted theft was unsuccessful.  He went back to the AHU room in Revenue Tower but saw that the victim was dead.

9.  The pathologist’s evidence was that there was a wound to the upper chest of the deceased caused by an object similar to a knife which was found at the applicant’s home.  The knife which caused death had been used with the sharp edge towards the midline of the body and directed towards the back.  In his opinion, the knife had been used horizontally and had been used from the back or in a sideways direction.  The knife had gone between the ribs, and protruded into the chest cavity.  The wound would have made the deceased incapable of moving.  Deep bruising was found on the area of the left upper neck and jaw as well as to other parts of the body.  There was a mark on her throat under which there was no underlying injury.  Two cables bound together had been used to tie the victim’s wrists.  In his opinion, the deceased had died directly from suffocation and from the effect of the wound.

10.  The applicant did not testify nor was any witness called on his behalf.  It was suggested to Kwok that there was no plastic bag over the deceased’s head when he saw the body.

11.  The prosecution case was that this was hardly an accidental stabbing.  The inflicted wound was serious, inflected from behind and rendering the victim unable to move; her hands were tied behind her back and a plastic bag put over her head.  Moreover, had she been still alive at the time the applicant left the AHU room, it is unlikely that he would have left her in a condition in which she could readily call for help.

12.  We have studied the judge’s careful summing-up.  She correctly emphasised to the jury that the real issue in the case was that of intent and she left to them the alternative verdict of manslaughter by an unlawful and dangerous act.  We discern no errors in the summing-up.

13.  We have studied the applicant’s list of complaints and we are satisfied that there is no merit in any one of them. 

14.  Accordingly, this application for leave to appeal against conviction is dismissed.